EXHIBIT 10.11
LEASE AGREEMENT
AGREEMENT of Lease, made on the 23rd day of May 2000 BY AND BETWEEN
55 MADISON ASSOCIATES, LLC, a New Jersey Limited Liability Company, c/o
Alexander Summer, L.L.C., having its principal office at East 00 Xxxxx
0, Xxxxxxx, Xxx Xxxxxx, hereinafter referred to as "Landlord"
AND FIBERTECH & WIRELESS INC.
having its principal office at
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
hereinafter referred to as "Tenant"
WITNESSETH:
That the Landlord does hereby lease to the Tenant and the Tenant does hereby
rent from the Landlord for the term and upon the rentals and other conditions
hereinafter specified, the premises, located on the realty more fully described
on Exhibit A hereof (subject to conditions of title shown on Exhibit A),
situated at 00 Xxxxxxx Xxxxxx, in the Town of Morristown, New Jersey, County of
Xxxxxx, and State of New Jersey.
SUMMARY PAGES OF LEASE AGREEMENT
Name and Address of Landlord:
55 Madison Associates, LLC
c/o Alexander Summer, L.L.C.
East 00 Xxxxx 0
Xxxxxxx, Xxx Xxxxxx 00000
Name and Address of Tenant:
FIBERTECH & WIRELESS INC.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Description of Premises:
Portion of third floor of premises known as "55 Xxxxxxx Xxxxxx, Xxxxxxxxxx,
Xxx Xxxxxx 00000" comprising approximately 5,237 rentable square feet on the
third floor which includes a share of the common area.
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Term of Lease:
Number of Years: Five (5) years
Commencing : Xxxx 0, 0000
Xxxxxxxxxxx : May 31, 2005
Fixed or Base Rental:
Annual Rental : $146,636.00 (plus Tenant Electric which
is sub metered)
Monthly Rental : $12,219.67 (plus Tenant Electric which
is sub metered)
Term Rental : $733,180.00 (plus Tenant Electric which
is sub metered)
Tenant Percentage Share: 6.06%
Base Year: For Operating Cost Escalation, Fuel, Water and Electric Cost
Escalation and Tax Escalation: 2000
Tenant's SIC Code: 7379
Security Deposit: Three (3) months rent equalling $36,659.00
Parking Spaces: Twenty-one (21) spaces of which five (5) are
designated spaces (based upon a ratio of four
(4) per 1,000 square feet of rentable space of
which 25% are designated spaces)
Notices:
To Landlord: 55 Madison Associates, LLC
c/o Alexander Summer, L.L.C.
East 00 Xxxxx 0
Xxxxxxx, Xxx Xxxxxx 00000
To Tenant: Fibertech & Wireless Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxxxx 00000
Attn. A. Xxxx Xxxx
With Copy to: Xxxx X. Xxxxxxx, Xx., Esq.
Xxxxxx, Xxxx & Longford
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
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Brokers: Alexander Summer, L.L.C.
ReMax (Chatham Office)
Use by Tenant: General Office
Tenant Work Allowance: Landlord shall provide Tenant with an allowance of $2.00
per square foot to be applied against Tenant's cost of painting and carpeting
the Demised Premises. The paint and carpet color and type shall be subject to
Landlord's approval. Any cost in excess of the $2.00 allowance shall be borne
solely by the Tenant. Landlord shall have the right to have its property
management employees inspect the paint and carpet work to insure that it
complies with Building Standard.
Right of First Offer: In the event Landlord determines to rent the adjoining
office unit comprising approximately 4,180 rentable square feet, Landlord shall
first offer said space to Tenant on such terms as Landlord may determine in its
sole discretion. In the event Tenant does not accept said Offer in writing
within ten (10) business days from the date Landlord makes said offer, then this
right of first offer shall terminate, Tenant shall have no further rights to the
adjoining office unit and Landlord may offer said space to third parties free
and clear of this right of first offer.
Renewal Option:
1. Provided that Tenant exercises and completes the Initial Term, Tenant
shall have the option to renew this Lease for one additional term of five (5)
years (the "Renewal Term"), which Renewal Term shall commence upon the
expiration of the Initial Term of this Lease (the "Initial Term"). All of the
terms, covenants and conditions of this Lease shall govern the Renewal Term,
except as otherwise specifically set forth hereinafter or if inapplicable
thereto. The base rent for the Renewal Term shall be based on the
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greater of $34.00 per square foot or the market rent as hereinafter
determined.
Tenant's option to renew, as provided in subparagraph 1 above, shall be
conditioned upon and subject to each of the following:
A. Tenant shall notify Landlord in writing of its exercise of its option to
renew at least seven (7) months, but not more than twelve (12) months, prior to
the expiration of the Initial Term;
B. At the time Landlord receives Tenant's notice as provided in (A) above,
Tenant shall not be in default under the terms or provisions of this Lease
beyond the applicable grace period for the cure thereof. Default as used herein
shall mean default in payment of rent or additional rent or material breach of
the Lease.
C. This option to renew shall be deemed personal to the Tenant and may not
be assigned, except to an assignee under an assignment made pursuant to the
provisions of this Lease.
D. Landlord shall have no obligation to do any work or perform any services
for the Renewal Term with respect to the demised premises which Tenant agrees to
accept in its then "As Is" condition.
E. Base year for passthroughs during the renewal term shall be 2005.
"Market Rent" shall mean the fair market rent for the demised premises for
the Renewal Term, determined as of the date of 180 days prior to the expiration
of the Initial Term (the "Determination Date"), based upon the rents generally
in effect for
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comparable office space in Xxxxxx County, New Jersey. Market rent (for the
purpose of determining the fixed rent only during the Renewal Term) shall be
determined on what is commonly known as the "gross" basis; that is, in computing
Market Rent it shall be assumed that all real estate taxes and customary
services are included in the market rent. Notwithstanding the foregoing, the
base rent for the Renewal Term shall be thereafter increased from time to time
as provided in this Lease, and the base year for tax and operating expenses
increases, tax base and base operating expenses for the Renewal Term shall all
be deemed redefined as and recomputed on the basis of the last calendar year of
the Initial Term of this Lease.
Landlord shall notify Tenant ("Landlord's Determination Notice") of
Landlord's determination of the Market Rent not later than 60 days after the
Determination Date. If Tenant disagrees with Landlord's determination, Tenant
shall notify Landlord ("Tenant's Notice of Disagreement") within 15 days of
receipt of Landlord's Determination Notice. Time shall be of the essence with
respect to Tenant's Notice of Disagreement, and the failure of Tenant to give
notice within the time period set forth above shall conclusively be deemed an
acceptance by Tenant of the Market Rent as determined by Landlord and a waiver
by Tenant of any right to dispute such Market Rent. If Tenant timely gives its
Tenant's Notice of Disagreement, then the Market Rent shall be determined as
follows: Landlord and Tenant shall, within 30 days of the date on which Tenant's
Notice of Disagreement was given, each appoint an Appraiser for the purpose of
determining the Market Rent. An "Appraiser" shall mean a duly qualified
impartial real estate appraiser who is a member of the American Institute of
Real Estate Appraisers and who has at least 10 years experience in appraising
properties in Northern New Jersey. In the event that the two
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Appraisers so appointed fail to agree as to the Market Rent within a period of
30 days after the appointment of the second Appraiser, such two Appraisers shall
forthwith appoint a third Appraiser who shall make a determination within 30
days thereafter. If such two Appraisers fail to agree upon such third Appraiser
within 10 days following the last 30 day period, such third Appraiser shall be
appointed by the Xxxxxx County Assignment Judge of the New Jersey Superior
Court. Such two Appraisers or three Appraisers, as the case may be, shall
proceed with all reasonable dispatch to determine the Market Rent. The decision
of such Appraisers shall be final; such decision shall be in writing and a copy
shall be delivered simultaneously to Landlord and Tenant. If such Appraisers
fail to deliver their decision as set forth above prior to the commencement of
the Renewal Term, Tenant shall pay Landlord the base rent based on $34.00 per
square foot and tax expense increases at the rate as of the last day of the
Initial Term, until such decision is so delivered. Once the Market Rent is
ascertained, the rent will be adjusted retroactive to the Commencement Date of
the Renewal Term and, if there is a rent shortfall, Tenant shall pay to Landlord
the difference between the rent actually paid and the rent determined hereunder
from the commencement of the Renewal Term. Landlord and Tenant shall each be
responsible for and shall pay the fee of the Appraiser appointed by them
respectively, and Landlord and Tenant shall share equally the fee of the third
Appraiser.
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Tenant Takes Space "As Is". Tenant leases the premises in its "as is"
condition as of the Commencement Date of the Lease without any representations
or warranties from Landlord.
THE ABOVE LETTING IS UPON THE ABOVE TERMS AS WELL AS THE FOLLOWING TERMS AND
CONDITIONS:
SECTION 1. TERM.
The term of the within Lease Agreement shall be for five (5) years,
commencing on June 1, 2000 ("Commencement Date") and terminating on May 31,
2005. See Summary Pages.
SECTION 2. RENTAL.
Tenant covenants and agrees to make payment to the Landlord as rent for and
during the term hereof without further demand therefor the fixed or base rent as
shown above, in monthly payments as shown above on the first day of each month
of the lease term, in advance.
SECTION 3. USE AND OCCUPANCY.
Tenant shall use and occupy the Premises as a general office for the
business of the Tenant named above and for no other purpose. See Summary
Pages.
SECTION 4. COVENANT TO PAY RENT.
Tenant shall pay the base rent, and any additional rent as hereinafter
provided, to Landlord at Landlord's above-stated address, or at such other place
as Landlord may designate in
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writing, without demand and without counterclaim, deduction or setoff.
SECTION 5. CARE AND REPAIR OF PREMISES.
Tenant shall commit no act of waste and shall take good care of the Premises
and the fixtures and appurtenances therein, and shall, in the use and occupancy
of the Premises, conform to all laws, orders and regulations of the federal,
state, county and municipal governments or any of their departments. Landlord
shall make all necessary repairs to the Premises, except where a repair has been
made necessary by misuse or neglect by Tenant or Tenant's agents, servants,
visitors or licensees not covered by insurance. All improvements made by Tenant
to the Premises, which are so attached to the Premises that they cannot be
removed without material injury to the Premises shall become the property of
Landlord upon installation. Not later than the last day of the term, Tenant
shall, at Tenant's expense, remove all of Tenant's personal property and, at
Tenant's option, those improvements made by Tenant which have not become the
property of Landlord, including trade fixtures, cabinet work, movable paneling,
partitions and the like; repair all injury done by or in connection with the
installation or removal of said property and improvements; and surrender the
Premises in as good condition as they were at the beginning of the term,
reasonable wear and damage by fire, the elements, casualty, or other cause not
due to the misuse or neglect by Tenant, Tenant's agents, servants, visitors or
licensees, excepted. Tenant need not be responsible for damage covered by
Landlord's insurance. All other property of Tenant remaining on the Premises
after the last day of the term of this Lease shall be conclusively deemed
abandoned and may be removed by Landlord, and Tenant shall reimburse Landlord
for the cost of such removal.
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Landlord may have any such property stored at Tenant's risk and expense.
Section 6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS.
After the original improvements have been installed by Tenant per Plans and
Specs (see Summary Pages), Tenant shall have the right to make any non-
structural alterations, improvements and additions to the Premises at Tenant's
sole cost and expense, provided:
(a) Plans have been submitted to and approved in advance by Landlord, which
approval shall not be unreasonably withheld or delayed.
(b) All contractors and subcontractors have been approved in advance by
Landlord, which approval shall not be unreasonably withheld or delayed.
(c) Prior to the commencement of each proposed alteration, addition or
improvement, Tenant shall furnish to Landlord Certificate of Workers'
Compensation Insurance covering all men to be employed in connection with said
alterations, additions or improvements, including those to be employed by all
contractors and subcontractors and of comprehensive public liability insurance
(including property damage) in which Landlord and its agents shall be named as
parties insured, which coverage shall be maintained by Tenant until completion
of all such work and which shall be in an amount of not less than One Million
($1,000,000.00) Dollars for Personal Injury, and One Million ($1,000,000.00)
Dollars for Property Damage; and
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(d) All materials and equipment to be incorporated in the Premises as part
of said alterations, additions or improvements be new and first quality; and
(e) No such materials, equipment or work performed shall be subject to any
lien or encumbrance;
(f) All work shall comply fully with all applicable laws, ordinances and
regulations;
(g) All work shall be performed so as to insure proper maintenance of good
and harmonious labor relationships.
SECTION 7. ACTIVITIES INCREASING FIRE INSURANCE RATES.
Tenant shall not do or suffer anything to be done on the Premises which will
increase the rate of fire insurance on the Building. If as a result of Tenant's
operation, insurance rates increase, Tenant shall pay as additional rent such
increased insurance cost to Landlord.
SECTION 8. ABANDONMENT.
Tenant shall not, without first obtaining the written consent of the
Landlord, abandon the Premises, or allow the Premises to become vacant or
deserted for a period of more than forty-five (45) days.
SECTION 9. ASSIGNMENT OR SUBLEASE.
Tenant may not assign the within Lease or sublet the Premises except in
compliance with the following requirements:
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ASSIGNMENT
A. In the event that the Tenant desires to assign the Lease and Premises to
any other party, all the terms and conditions of such assignment, including any
consideration to Tenant, and the proposed form of assignment and identity of all
parties, shall be communicated to the Landlord in writing not less than thirty
(30) days prior to the effective date of any such assignment, and, the Landlord
shall have the option, exercisable in writing to the Tenant, within fifteen (15)
days after receipt of such communication, to recapture the within Lease and
either (1) have such prospective assignee then become the sole Tenant of
Landlord under the Assignment; or (2) not accept the proposed assignment.
Assignment, as used herein shall mean an assignment of the Lease for the balance
of the term for the entire space.
B. In the event that the Landlord elects not to recapture the Lease as
hereinabove provided, the Tenant may nevertheless assign this Lease, subject to
the Landlord's written consent, upon fulfillment of the following terms and
conditions:
(1) The Tenant shall provide to the Landlord the name and address of
the assignee.
(2) The assignee shall assume by written instrument, all of the
obligations of this Lease, and a copy of such assumption
agreement shall be furnished to the Landlord within ten (10) days
of its execution.
(3) The Tenant and each assignee shall be and remain liable for the
observance of all of the covenants and provisions of this Lease,
including, but not
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limited to the payment of rent reserved herein, through the
entire term of this Lease.
(4) Tenant shall hold Landlord harmless from any claims for brokers'
commissions in connection with the assignment.
SUBLET
If the Tenant wishes to enter into a sublease for a part of the premises or
for all of the premises for a part of the balance of the term, it shall first
obtain the written consent of the Landlord. The Tenant shall provide the
Landlord with a copy of the proposed sublease and all other documents required
by the Landlord. Landlord will have the absolute right to receive as a condition
to its consent to subletting, 100% of the excess of the sublet rent over the
rent being paid by Tenant under this Lease less Tenant's marketing expenses to
secure such subletting prorated over the term of the sublease for the sublet
portion of the premises.
Notwithstanding anything hereinabove to the contrary, Tenant shall have the
right to assign the entire premises or sublet all or part of said premises to a
third party. Said assignment or subletting shall be in accordance with the above
terms and conditions and shall require the Landlord's prior written consent not
to be unreasonably withheld or delayed. Tenant shall continue to be liable under
the terms and conditions for the performance of all of the Lease Terms.
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SECTION 10. COMPLIANCE WITH RULES AND REGULATIONS.
Tenant shall observe and comply with the rules and regulations hereinafter
set forth in Exhibit B which are made a part hereto and with such further
reasonable rules and regulations as Landlord may prescribe provided such rules
and regulations shall apply to all office Tenants at the Building, excluding the
bank Tenant, on written notice to the Tenant, for the safety, care and
cleanliness of the Building and the comfort, quiet, and convenience of other
occupants of the Building. Tenant shall not place a load upon any floor of the
Premises exceeding the floor load of 50 pounds per square foot area which it was
designed to carry and which is allowed by law. Landlord reserves the right to
prescribe the weight and position of all safes, heavy business machines and
mechanical equipment. Such installations shall be placed and maintained by
Tenant, at Tenant's expense, in settings sufficient, in Landlord's judgment, to
absorb and prevent vibration, noise and annoyance.
SECTION 11. DAMAGES TO BUILDING.
A. If the Building is damaged by fire or any other cause to such extent that
the cost of restoration, as reasonably estimated by Landlord, will equal or
exceed twenty-five (25%) percent of the replacement value of the Building
(exclusive of foundations) just prior to the occurrence of the damage, then,
Landlord may give Tenant a notice of election to terminate this Lease. In such
event, this Lease shall be deemed to terminate on the thirtieth (30th) day after
the giving of said notice, and Tenant shall surrender possession of the Premises
within a reasonable time thereafter, and the base rent, and any additional rent,
shall be apportioned as of the date of said damage and any base or
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additional rent paid for any period beyond said date shall be repaid to Tenant.
If the cost of restoration as estimated by Landlord shall amount to less than
twenty-five (25%) percent of said replacement value of the Building, or if,
despite the cost, Landlord does not elect to terminate this Lease, Landlord
shall restore the Building and the Premises with reasonable promptness, subject
to delays beyond Landlord's control, and delays in the making of insurance
adjustments between Landlord and the insurance carrier, and Tenant shall have no
right to terminate this Lease. Landlord need not restore fixtures and
improvements owned by Tenant nor improvements installed by Tenant unless such
fixtures and improvements have become part of the Building and are owned by the
Landlord. Except as provided herein, there shall be no abatement of rent in the
event of a fire or other casualty.
B. In the event that 25 percent (25%) of the demised premises is destroyed,
either party may cancel this Lease by written notice to the other. To the extent
that the Premises or part thereof, is or are untenantable as a result of a fire
or other casualty, the rent shall be abated during such period.
SECTION 12. INSURANCE.
Tenant, at Tenant's own cost and expense shall maintain insurance protecting
and indemnifying the Landlord, Landlord's Managing Agent and Tenant against any
and all claims for injury or damage to persons or property or for the loss of
life or of property occurring upon, in or about the Premises, and resulting from
acts or omissions by Tenant, its employees, agents, contractors, customers, and
invitees; such insurance to afford minimum protection during the term of this
Lease of not less than $1,000,000.00 in respect of bodily injury or death to any
one
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person and not less than $1,000,000.00 in respect of any one occurrence or
accident, and not less than $500,000. 00 for property damage.
All such insurance shall be effected under valid and enforceable policies
and shall contain a provision whereby the insurer agrees not to cancel the
insurance without 20-days' prior written notice to Landlord and Landlord's
Managing Agent. Landlord and Landlord's Managing Agent shall receive copies of
all policies and endorsements prior to or as soon as possible after the
effective date of same, provided the Landlord receives insurance certificates
for the interim.
The Tenant agrees to and shall hold and save harmless and indemnify the
Landlord and Landlord's Managing Agent from and for any and all payments,
expenses, costs, attorney's fees and from and for any and all claims and
liability for losses or damage to property or injuries to persons occasioned
wholly or in part by or resulting from any acts or omissions by the Tenant or
the Tenant's agents, employees, guests, licensees, invitees, subtenants,
assignees or successors, or for any cause or reason whatsoever arising out of or
by reason of the occupancy by the Tenant and the conduct of the Tenant's
business. The foregoing indemnity shall not extend to loss or damage to the
extent covered by the Landlord's hazard insurance coverage.
SECTION 13. WAIVERS OF SUBROGATION.
Each insurance policy carried by Landlord insuring the Premises against loss
by fire and causes covered by standard extended coverage, and each insurance
policy carried by Tenant and insuring the Premises and its fixtures and contents
against loss by
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fire, water and causes covered by standard extended coverage, shall be written
in a manner so as to provide that the insurance company waives all right of
recovery by way of subrogation against Landlord or Tenant in connection with any
loss or damage covered by such policy. Neither party shall be liable to the
other for any loss or damage caused by fire, water or any of the risks
encountered in standard extended coverage insurance, provided such insurance was
obtainable at the time of such loss or damage. However, if such insurance
policies cannot be obtained, or are obtainable only by the payment of an
additional premium charge above that charged by companies carrying such
insurance without such waiver of subrogation, the party undertaking to carry
such insurance shall have a period of ten (10) days after the giving of such
notice either to: (a) place such insurance in companies which are reasonably
satisfactory to the other party and will carry such insurance with waiver of
such subrogation, or (b) agree to pay such additional premium if such policy is
obtainable at additional cost; and if neither (a) nor (b) is done, this Section
shall be null and void for so long as either such insurance cannot be obtained
or the party in whose favor a waiver of subrogation is desired shall refuse to
pay the additional premium charge. If the release of either Tenant or Landlord,
as set forth in the second sentence of this Section, shall contravene any law
with respect to exculpatory agreements, the liability of the party in question
shall be deemed not released, but shall be deemed secondary to the latter's
insurer. Nothing herein contained shall be construed to vary the force and
effect of any provisions specifically limiting Landlord's liability as contained
in this Lease.
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SECTION 14. EMINENT DOMAIN.
If Tenant's use of the Premises is materially affected due to the taking by
eminent domain of the Premises or any material part thereof or any estate
therein, or those parts of the parking specifically reserved to Tenant (unless
Landlord provides Tenant with equivalent substitute parking), then, in either
event, this Lease shall terminate on the date when title vests pursuant to such
taking. The rent, and any additional rent, shall be apportioned as of said
termination date and any base or additional rent paid for any period beyond said
date shall be repaid to Tenant. Tenant shall not be entitled to any part of the
award for such taking or any payment in lieu thereof, but Tenant may file a
claim for any taking of fixtures and improvements owned by Tenant which have not
become the Landlord's property, and for moving expenses. In the event of a
non-material partial taking which does not effect a termination of this Lease,
but does deprive Tenant of the use of a portion of the Premises, there shall be
an equitable reduction of the basic rent, and an equitable adjustment of the
Base Costs depending on the period for which and the extent to which the
Premises so taken are not reasonably usable for the purpose for which they are
leased hereunder.
SECTION 15. INSOLVENCY OF TENANT.
Either (a) the appointment of a trustee, receiver or liquidator to take
possession of all or substantially all of the assets of Tenant, or (b) a general
assignment by Tenant for the benefit of creditors, or (c) any action taken or
suffered by Tenant under any insolvency or bankruptcy act, shall constitute a
default of this Lease by Tenant, and Landlord may terminate this Lease
forthwith, and upon notice of such termination, Tenant's right to
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possession of the Premises shall cease, and Tenant shall remain liable as
hereinafter provided in Section 16. Notwithstanding the foregoing, Tenant will
have sixty (60) days to dismiss any action taken against it and if such action
is dismissed within said period, the Tenant will not be in default.
SECTION 16. LANDLORD'S REMEDIES ON DEFAULT.
If Tenant defaults in the payment of rent, or additional rent, or defaults
in the performance of any of the other covenants or conditions hereof, Landlord
may, in addition to any other rights available to Landlord under the law
including but not limited to summary dispossess actions, give Tenant notice of
such default, and if Tenant does not cure any rent, or additional rent, default
within ten (10) days, after the giving of such notice (or if such other default
is of such nature that it cannot be completely cured within such period, if
Tenant does not commence such curing within such ten (10) days and thereafter
proceed with reasonable diligence and in good faith to cure such default), then
Landlord may terminate this Lease on not less than twenty (20) days notice to
Tenant, and on the date specified in said notice, Tenant's right to possession
of the premises shall cease, and Tenant shall then quit and surrender the
Premises to Landlord, but Tenant shall remain liable as hereinafter provided.
Non-payment of rent as used herein includes non-payment of additional rent
items. If this Lease shall have been so terminated by Landlord, Landlord may, at
any time thereafter, resume possession of the Premises by any lawful means and
remove Tenant or other occupants and their effects.
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SECTION 17. DEFICIENCY
In any case where Landlord has recovered possession of the Premises by
reason of Tenant's default, Landlord may, at Landlord's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided, consolidated
with other adjoining premises, or otherwise changed or prepared for reletting,
and may relet, the Premises or any part thereof as agent of tenant or otherwise,
for a term or terms to expire prior to, at the same time as, or subsequent to,
the original expiration date of this Lease, at Landlord's option, and receive
the rent therefor. Rent so received shall be applied first to the payment of
such expenses as Landlord may have incurred in connection with the recovery of
possession, redecorating, altering, dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for reletting, and the reletting,
including brokerage and reasonable attorney's fees, and then to the payment of
damages in amounts equal to the rent hereunder and to the costs and expenses of
performance of the other covenants of Tenant as herein provided. Tenant agrees,
in any such case, whether or not Landlord has relet, to pay to the Landlord
damages equal to the base and additional rent and other sums herein agreed to be
paid by Tenant, less the net proceeds of the reletting, if any, as ascertained
from time to time, and the same shall be payable by Tenant on the several rent
days above specified. Tenant shall not be entitled to any surplus accruing as a
result of any such reletting. In reletting the Premises as aforesaid, Landlord
may grant rent concessions, and Tenant shall not be credited therewith. No such
reletting shall constitute a surrender and acceptance or be deemed evidence
thereof. If Landlord elects, pursuant hereto, actually to occupy and use the
Premises or any part thereof during any part of the balance of the term as
originally fixed or since extended, there
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shall be allowed against Tenant's obligation for rent or damages as herein
defined, during the period of Landlord's occupancy, the reasonable value of such
occupancy, not to exceed in any event the basic and additional rent herein
reserved and such occupancy shall not be construed as a release of Tenant's
liability hereunder.
Alternatively, in any case whether Landlord has recovered possession of the
Premises by reason of Tenant's default and has not relet the Premises or elected
to use the Premises in accordance with the preceding paragraph, Landlord may, at
Landlord's option, and at any time thereafter, and without notice or other
action by Landlord, and without prejudice to any other rights or remedies
Landlord may have hereunder or at law or equity, become entitled to recover from
Tenant, as damages for such breach, in addition to such other sums herein agreed
to be paid by Tenant, to the day of re-entry, expiration and/or dispossess an
amount equal to the excess, if any, of the rent and additional rents reserved in
this Lease from the date of such default to the date of expiration of the then
term demised over the then fair and reasonable rental value of the Premises for
the same period. Said damages shall become due and payable to Landlord
immediately upon such breach of this Lease and without regard to whether this
Lease be terminated or not, and if this lease be terminated, without regard to
the manner in which it is terminated. In the computation of such damages, the
difference between any installments of rent (base and additional) thereafter
becoming due and the fair and reasonable rental value of the Premises for the
period for which such installment was payable shall be discounted to the date of
such default at the rate of not more then ten (10%) percent per annum.
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Tenant hereby waives all right of redemption to which Tenant or any person
claiming under Tenant might be entitled by any law now or hereafter in force.
Landlord's remedies hereunder are in addition to any remedy allowed by law.
Landlord reserves the right of re-entry in the event of any breach of Tenant of
any provisions of the Lease. Nothing contained herein will excuse the Landlord
from exercising reasonable efforts to attempt to mitigate damages.
SECTION 18. NO WAIVER OF COVENANTS OR CONDITIONS.
The failure of either party to insist on strict performance of any covenant
or condition hereof, or to exercise any option herein contained, shall not be
construed as a waiver of such covenant or condition or option in any other
instance. This Lease cannot be changed or terminated orally.
SECTION 19. SUBORDINATION OF LEASE.
This Lease shall be subject and subordinate to existing mortgages and to any
future mortgages, which may now or hereafter affect the real property to which
the Premises form a part, and also to all renewals, modifications,
consolidations, and replacements of said mortgages. Although no instrument or
act on the part of the Tenant shall be necessary to effectuate such
subordination, Tenant will, nevertheless, execute and deliver such further
instruments confirming such subordination of this Lease as may be desired by the
holders of said mortgages. If Tenant refuses to sign, such refusal shall be a
substantial breach of this Lease and shall entitle Landlord to cancel this
Lease. Tenant agrees to
21
attorn to any Mortgagee in possession, if and when required under the Mortgage
and other security documents and the law.
SECTION 20 ADVANCE RENT AND SECURITY DEPOSIT.
A. Tenant shall pay upon execution hereof the first month's rent due to be
paid hereunder in advance, together with the security deposit shown on the
Summary Page.
B. The Tenant has this day deposited with the Landlord the sum shown above
as security for the payment of the rent hereunder and the full and faithful
performance by the Tenant of the covenants and conditions on the part of the
Tenant to be performed. Said sum shall be returned to the Tenant, without
interest, after the expiration of the term hereof, provided that the Tenant has
fully and faithfully performed all such covenants and conditions and is not in
arrears in rent. During the term hereof, the Landlord may, if the Landlord so
elects, have recourse to such security, to make good any default by the Tenant,
in which event the Tenant shall, on demand, promptly restore said security to
its original amount. Liability to repay said security to the Tenant shall run
with the reversion of title to said premises, whether any change in ownership
thereof be by voluntary alienation or as the result of judicial sale,
foreclosure or other proceedings or the exercise of a right of taking or entry
by any mortgagee. The Landlord shall assign or transfer said security, for the
benefit of the Tenant, to any subsequent owner or holder of the reversion of
title to said premises, in which case the assignee shall become liable for the
repayment thereof as herein provided, and the assignor shall be deemed to be
released by the Tenant from all liability to return such security. This
provision shall be applicable to every alienation or change in title and shall
in no
22
way be deemed to permit the Landlord to retain the security after termination of
the Landlord's ownership of the reversion of title. The Tenant shall not
mortgage, encumber or assign said security without the written consent of the
Landlord.
SECTION 21. RIGHT TO CURE TENANT'S BREACH.
If Tenant breaches any covenant or condition of this Lease, Landlord may, on
reasonable notice to Tenant (except that no notice need be given in case of
emergency), cure such breach at the expense of Tenant and the reasonable amount
of all expenses, including attorney's fees, incurred by Landlord in so doing
(whether paid by Landlord or not) shall be deemed additional rent payable on
demand.
SECTION 22. MECHANIC'S LIENS.
With regard to any work ordered by Tenant, Tenant shall, within fifteen (15)
days after notice from Landlord, discharge or satisfy by bonding or otherwise,
any mechanic's liens for materials or labor claimed to have been furnished to
the Premises on Tenant's behalf.
SECTION 23. NOTICES.
Any notice by either party to the other shall be in writing and shall be
deemed to have been duly given upon receipt or refusal only if sent by
registered mail or certified mail, return receipt requested, in a postpaid
envelope addressed or hand delivered, if to Tenant, at Tenant's address as set
forth above and if to Landlord, at Landlord's address as set forth above; or, to
either
23
at such other address as Tenant or Landlord, respectively, may designate in
writing.
SECTION 24. RIGHT TO INSPECT AND REPAIR.
Landlord may enter the Premises but shall not be obligated to do so (except
as required by any specific provision of this Lease) at any reasonable time on
reasonable notice to Tenant, provided that the time of such planned inspection
does not interfere with the Tenant's business operations (except that no notice
need be given in case of emergency) for the purpose of inspection or the making
of such repairs, replacement, or additions, in, to, on and about the Premises or
the Building, as Landlord deems necessary or desirable. Tenant shall have no
claims or cause of action against Landlord by reason thereof. In no event shall
Tenant have any claims against Landlord for interruption to Tenant's business,
arising from such entry.
SECTION 25. INTERRUPTION OF SERVICES OR USE.
Interruption or curtailment of any service maintained in the Building, if
caused by strikes, mechanical difficulties, government pre-emption in connection
with a national emergency, conditions of supply and demand affected by any
governmental emergency or any causes beyond Landlord's control whether similar
or dissimilar to those enumerated shall not entitle Tenant to any claim against
Landlord including claims for resulting damages and specifically including
damage to computers or to any abatement in rent; and shall not constitute
constructive or partial eviction.
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SECTION 26. CONDITIONS OF LANDLORD'S LIABITLITY.
Tenant shall not be entitled to claim a constructive eviction from the
Premises unless Tenant shall have first notified Landlord in writing of the
condition or conditions giving rise thereto, and, if the complaints be
justified, unless Landlord shall have failed within a reasonable time, given the
nature of the condition and the relevant circumstances, after receipt of such
notice to remedy, or commence and proceed with due diligence or remedy such
condition or conditions.
SECTION 27. RIGHT TO SHOW PREMISES.
Landlord may show the Premises to prospective purchasers and mortgagees,
and, during the twelve (12) months prior to termination of this Lease, to
prospective tenants, during business hours, on reasonable notice to Tenant.
SECTION 28. NO OTHER REPRESENTATIONS.
No representations or promises shall be binding on the parties hereto except
those representations and promises contained herein or in some future writing
signed by the party making such representation(s) or promise(s).
SECTION 29. QUIET ENJQYMENT.
Landlord covenants that if, shall so long as, Tenant pays the rent, and any
additional rent as herein provided, and performs the covenants hereof, Tenant
shall peaceably and quietly have, hold and enjoy the Premises for the term
herein mentioned.
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SECTION 30. ESTOPPEL.
Tenant shall, from time to time, on not less than ten (10) days prior
written notice by Landlord, execute, or acknowledge and deliver to Landlord a
written statement certifying if true that the Lease is unmodified and in full
force and effect, or that the Lease is in full force and effect as modified and
listing the instruments of modification; the date to which the rents and charges
have been paid; and, whether or not, to the best of Tenant's knowledge, Landlord
is in default hereunder, and if so, specifying the nature of the default. Tenant
shall have the right to request a similar statement from Landlord at any time.
It is intended that any such statement delivered pursuant to this Section may be
relied on by a prospective purchaser of Landlord's interest or mortgagee of
Landlord's interest or assignee of any mortgage of Landlord's interest in the
Building.
SECTION 31. HOLDOVER TENANCY.
If Tenant holds possession of the Premises after the term of this Lease,
Tenant shall thereupon be deemed a tenant from month to month under the
provisions of this Lease, however, at a rent equal to 200% of the Base Rent set
forth in the Lease.
SECTION 32. TENANT'S WORK ALLOWANCE
Tenant shall be provided a Work allowance in lieu of any Landlord's Work in
the Premises, as specified on the Summary Pages.
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SECTION 33. SERVICES TO BE PROVIDED BY LANDLORD.
(A) Landlord agrees to furnish the particular services, set forth on Exhibit
C attached hereto and made part hereof, and subject to the conditions therein
stated. Except as set forth in said Exhibit C, Tenant shall pay the cost of all
other services required by Tenant. Notwithstanding the requirements of said
Exhibit C, and except for Landlord's acts of gross negligence or wrongful,
wilful misconduct, Landlord shall not be liable for failure to furnish any of
the foregoing when such failure is caused by conditions beyond the control of
Landlord, including but not limited to acts of God, accidents, repairs or
strikes, such failure shall not constitute an eviction. Landlord shall not be
liable, under any circumstances, for loss of, or injury to, property, however
occurring, through or in connection with or incidental to the furnishing of or
failure to furnish any of the services required by said Exhibit C, or for any
interruption to Tenant's business, however occurring.
(B) Landlord's Standard Electric Service (excluding Tenant's electric
service shown in Paragraph 34) shall, unless otherwise provided by agreement in
writing between the parties, include the electrical current for usual building
requirements, including elevator, lighting of halls, lobbies, rest rooms and
exterior, heating, ventilating and air-conditioning systems for the Premises and
the Building, from 8:00 a.m. to 5:00 p.m. on every day, Monday through Friday,
but excluding only those holidays set forth on Exhibit D attached hereto and at
additional cost to Tenant, at other times, provided, with respect to additional
service, Tenant shall notify and request the same twenty-four (24) hours in
advance. Request by Tenant for overtime HVAC during the week or on the week-end
are made through the building's superintendent in
27
advance, the cost of such overtime HVAC to be assessed at $60.00 per hour.
SECTION 34. TENANT ELECTRICITY.
(A) Tenant shall pay to Landlord as additional rent for Tenant Electricity
Service the amounts calculated by sub-metering done for the Demised Premises
either monthly in advance (if Landlord estimates) or monthly in arrears pursuant
to sub- or master-meter reading. If the Demised Premises cannot be sub- or
master-metered, the Landlord agrees that it will have a professional survey done
to determine the electric usage and to have the rates applied therefor, and the
same will provide the basis for monthly billing to the Tenant, subject to rate
fluctuations, which will be reflected in subsequent bills. The Tenant will be
entitled to receive a copy of the survey and, if the Tenant is dissatisfied with
the survey, may obtain its own survey, and if the two surveyors fail to agree,
they will select a third surveyor, whose decision will be binding and final upon
all parties. Each party will bear their own survey costs, and the cost of the
third surveyor will be shared. The Tenant Electric Service which Tenant shall
receive and pay for consists of all electric service used within the Demised
Premises (except HVAC current) for Tenant's lighting and equipment. In no event
shall Tenant Electric Service include electrical current for any computer
installation or for any requirements needing greater than a 15-amp line.
Dedicated word processors and personal computers are permissible and shall not
be considered computer installations hereunder. All installations of electrical
fixtures, appliances and equipment within the Premises shall be subject to
Landlord's prior written approval which approval shall not be unreasonably
withheld or delayed. Landlord shall not be liable in any way to Tenant for any
28
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. Tenant shall pay
for the reasonable cost to furnish and install all replacement lighting tubes,
lamps, bulbs and ballasts required in the Premises.
(B) In the event that the utility company that furnishes electric energy to
the Landlord, for supply to the Tenant, declines to continue furnishing electric
energy to Landlord for Tenant Electric Service, Landlord reserves the right to
discontinue furnishing Tenant Electric energy to Tenant at any time, upon
reasonable notice to tenant, and from and after the effective date of such
termination, Landlord shall no longer be obligated to furnish Tenant with Tenant
Electric energy, provided, however, that such termination date may be extended
for a time reasonably necessary for Tenant to make arrangement to obtain
electric service directly from the public utility company servicing the
Building. If Landlord exercises such right of termination, this Lease shall
remain unaffected thereby and shall continue in full force and effect, except
that portion of the rent and additional rent for electric service shall xxxxx;
and thereafter Tenant shall diligently arrange to obtain electric service
directly from the utility company servicing the Building and may utilize the
then existing electric feeders, risers and wiring serving the Premises to the
extent available and safely capable of being used for such purpose and only to
the extent of Tenant's then authorized connected loan. Landlord shall not be
obligated to pay any part of any cost required for Tenant's direct service.
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SECTION 35. ADDITIONAL RENT.
It is expressly agreed that Tenant will pay, in addition to the Base Rent
provided in Section 2 above, additional rent to cover Tenant's proportionate
share of the increased cost to Landlord, for each of the categories enumerated
herein, over the "Base Costs" (as hereinafter defined) for said categories.
A. Operating Cost Escalation. From and after the Base Year as same is stated
on the Summary Pages, if the Operating Costs incurred for the Building in which
the Premises are located, and Office Building Area (including parking and
landscaped and access areas), for any calendar year or proportionate part
thereof during the lease term or any renewal term shall be greater than the Base
Operating Costs then Tenant shall pay to the Landlord as additional rent its
proportionate share of all such Operating Costs in excess of Base Operating
Costs. Operating Costs shall include, by way of illustration and not of
limitation, personal property taxes, reasonable management fees actually charged
to the Owner, labor, charges for persons working at the Building for time spent
working at or on the Building (for management services), including all wages and
salaries, social security taxes, and other taxes which may be levied against
Landlord upon such wages and salaries, supplies, repairs and maintenance,
maintenance and service contracts, cost of painting, wall and window washing,
laundry and towel service, tools and equipment, fire and other insurance, cost
of electrical surveys, trash removal, lawn care, snow removal, capital
expenditures on items that reduce operating expenses amortized over the useful
life of the capital improvement or replacement, and other items properly
constituting out of pocket operating costs according to standard accounting
practices (herein collectively referred to as the "Operating Costs). Not
included in
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Operating Costs, are interest, mortgage debt service, income or excess profit
taxes, costs of maintaining the Landlord's corporate existence, franchise taxes,
or office expenses, or salaries of the Landlord's executive officers, or fuel,
utility and electric cost escalation which is covered in subsection B post. As
used in this Section 35, the Base Operating Costs shall be the Operating Costs
incurred during the Base Year shown on the Summary Page (page 2) as reasonably
and fairly adjusted, however, to reflect any projections that are needed to
compensate for vacancies in the building during the Base Year or in any calendar
year during the Term (or Extended Term) -- the projection to proceed on the
premises as if at least 95% of the rentable portion of the building were in fact
occupied throughout the whole year.
(B) Fuel, Utilities and Electric Cost Escalation (hereinafter "Utilities and
Energy"). If the Utility and Energy Costs, including any fuel surcharges or
adjustments with respect thereto, incurred for the Building in which the
Premises are located, and office Building Area, for any calendar year or
proportionate part hereof, during the lease term, shall be greater than the Base
Utility and Energy Costs (adjusted proportionately for periods less than a lease
year), then Tenant shall pay to Landlord as additional rent, its proportionate
share of all such Utility and Energy Costs including increases for Tenant
Electric Service and Standard Electric Service. As used in this Section 35, the
Base Utility and Energy Costs shall be the usage incurred for the Building
computed in the same manner as the base Operating cost described in (A) above.
(C) Tax Escalation. If the Real Estate taxes for the Building and Office
Building Area at which the Premises are located for any calendar year, including
the first calendar year, or
31
proportionate part thereof, during the lease term, shall, be greater than the
Real Estate Taxes for the Base Year (adjusted proportionately for periods less
than a lease year), then Tenant shall pay to Landlord as additional rent, its
proportionate share of all such excess real estate taxes. Tenant shall also pay
to Landlord as additional rent its proportionate share of all costs and fees
including legal and appraisal fees arising from real estate tax appeals
pertaining to such excess real estate taxes.
As used in this Section 35(C), the words and terms which follow mean and
include the following:
(1) "Base Real Estate Taxes" shall mean the final taxes for the Base Year
assessed against the land and building (designated as Lot 004 in Block 6601 on
the current tax map of Morristown). If the Building is not fully assessed for
the Base Year or in any calendar year during the Term, the same shall be
projected as if fully assessed to determine the tax base for that year; fully
assessed shall contemplate an occupancy of 95 percent; if the projection so
determined varies from the full assessment finally determined by the taxing
authorities, the parties shall readjust the taxes for the prior period covered
by the projected base.
(2) "Real Estate Taxes" shall mean the property taxes, special charges and
assessments imposed upon the Building and the land upon which it stands, or upon
the rent, as such payable to the Landlord. If due to a future change in the
method of taxation, any franchise, income or profit tax shall be levied against
Landlord in substitution for, or in lieu of, or in addition to, any tax which
would otherwise constitute a Real Estate Tax, such franchise, income or profit
tax shall be deemed to be Real Estate
32
Tax for the purpose hereof; conversely, any additional real estate tax hereafter
imposed in substitution for, or in lieu of any franchise, income or profit tax
(which is not in substitution for or in lieu of, or in addition to a Real
Estate Tax as hereinbefore provided) shall, not be deemed a Real Estate tax
for the purposes hereof; in such event, rental income from this Building will
be considered the sole source of income and a calculation to arrive at the
Tenant's share shall include all deductions for the Building.
(D) Apportionment Partial Years. Once the base costs are established, in the
event any lease period is less than twelve (12) months, then the increased costs
for the categories listed above shall be adjusted to equal the proportion that
said period bears to twelve (12) months, and Tenant shall pay to Landlord as
additional rent for such period, an amount equal to Tenant's proportionate
share of the excess for said period over the adjusted base with respect to each
of the aforesaid categories.
(E) Proportionate Share. Tenant's Proportionate Share of the additional
rent, as defined in Subparagraphs A, B and C hereof, shall be the Tenant
Percentage Share shown on the Summary Pages, which the parties agree is the
Tenant's share of the total additional rent items, which Proportionate Share
reflects the ratio of the gross square feet of the area rented to the Tenant as
compared with the total number of gross square feet of the rentable area of the
entire Building measured outside wall to outside wall. Landlord shall have the
right to make changes or revisions in the common areas of the Building or Office
building Area so as to provide additional leasing area.
(F) Payment. At any time, and from time to time, after the establishment of
the Base Operating Costs for each of the
33
categories referred to above, Landlord shall advise the Tenant in writing of
Tenant's proportionate share with respect to each of the categories, as
estimated for the next succeeding twelve (12) month period or proportionate part
thereof if the last period prior to the Lease's termination is less than twelve
(12) months), as then known to the Landlord and thereafter. The Tenant shall pay
as additional rent, its proportionate share of these costs for the then current
period affected by such advice (as the same may be periodically revised by
Landlord as additional costs are incurred) in equal monthly installments, such
new rates being applied to any months for which the rental shall have already
been paid which are affected by the Operating Cost Escalation and/or Utility and
Energy Cost Escalation, and/or Tax Escalation Costs above referred to, as well
as the unexpired months of the current period, the adjustment for the then
expired months to be made at the payment of the next succeeding monthly rental
all subject to final adjustment at the expiration of each Lease Year as
defined in Subparagraph D hereof (or proportionate part thereof, if the last
period prior to the Lease's termination is less than twelve (12) months).
Notwithstanding anything herein contained to the contrary, in the event the
last period prior to the Lease's termination is less than twelve (12) months,
the Base Operating Costs shall be proportionately reduced to correspond to the
duration of said final period.
(G) Books and Records. For the protection of the Tenant, the Landlord shall
maintain books of account which shall be open to the Tenant and its
representatives, at all reasonable times so that the Tenant can determine that
such Operating, Utility and Energy and Tax costs have, in fact, been paid or
incurred. The books of account shall conclusively be presumed to be correct one
34
year from the day they are available for inspection by the Tenant, except for
such changes as have specifically been disputed in writing by Tenant. Any
disagreement with respect to any one or more of said charges if not
satisfactorily settled between the Landlord and the Tenant shall be referred by
either party to an independent certified public accountant to be mutually agreed
upon, and if such an accountant cannot be agreed upon, the American Arbitration
Association may be asked by either party to select an arbitrator whose decision
on the dispute will be final and binding upon both parties, who shall jointly
share any cost of such arbitration.
SECTION 36. WAIVER OF TRIAL BY JURY.
To the extent such waiver is permitted by law, the parties waive trial by
jury in any action or proceeding brought in connection with this Lease or the
Premises.
SECTION 37. LATE CHARGE
Anything in this Lease to the contrary notwithstanding, Tenant shall pay a
"Late Charge" of five (5%) percent of any installment of rent or additional rent
due, which is paid more than ten (10) business day after the due date thereof,
to cover the extra expense involved in handling delinquent payments.
SECTION 38. HEADINGS OF LEASE SECTIONS AND SUMMARY.
The headings which appear for the various sections set forth in the within
Lease and the Summary that appears at the beginning of the Lease are for
reference purposes only and shall
35
not be used in any manner whatsoever in interpreting the rights and obligations
hereunder.
SECTION 39. APPLICABILITY TO HEIRS AND ASSIGNS.
The provisions of this Lease shall apply to, bind and inure to the benefit
of Landlord and Tenant, and their respective heirs, successors, legal
representatives and assigns. It is understood that the term "Landlord" as used
in this Lease means only the owner, a mortgagee in possession or a term Tenant
of the Building, so that in the event of any sale of the Building or of any
lease thereof, or if a mortgagee shall take possession of the Premises, the
Landlord named herein shall be and hereby is entirely freed and relieved of all
covenants and obligations of Landlord hereunder accruing thereafter, and it
shall be deemed without further agreement that the purchaser, the term Tenant of
the Building, or the mortgagee in possession has assumed and agreed to carry out
any and all covenants and obligations of the Landlord hereunder.
SECTION 40. LANDLORD'S LIABILITY FOR LOSS OF PROPERTY.
Landlord shall not be liable for any loss of property from any cause
whatsoever, including but not limited to theft or burglary from the Premises and
Tenant covenants and agrees to make no claim for any such loss at any time.
SECTION 41. BROKER.
Tenant and Landlord represent and warrant to each other that the Broker(s)
named on the Summary Pages is (are) the sole broker(s) with whom Tenant and
Landlord have negotiated in bringing about
36
this Lease and Tenant and Landlord agree to indemnify and hold the other
harmless from any and all claims of other brokers arising out of or in
connection with the negotiation of or the entering into this Lease by Landlord
and Tenant, to the extent that their actions are inconsistent with the
representations and warranties made by them to the other as herein contained.
Landlord agrees to pay the broker named on the Summary Pages a commission
pursuant to separate agreement, and further does hereby indemnify and save
Tenant harmless from any and all claims that may be asserted by said Broker
against the Tenant for failure of the Landlord to comply with the terms of the
separate agreement. Tenant understands that one of the principals of Landlord is
also one of the principals of Alexander Summer, L.L.C.
SECTION 42. PERSONAL LIABILITY.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary consideration
for the execution of this Lease by Landlord, that there shall be absolutely no
personal liability on the part of the Landlord, its successors, assigns or any
mortgagee in possession (for the purposes of this Section, collectively referred
to as "Landlord"), with respect to any of the terms, covenants and conditions
of this Lease, and that Tenant shall look solely to the equity of Landlord
in the Building for the satisfaction of each and every remedy of Tenant in the
event of any breach by Landlord of any of the terms, covenants and conditions of
this Lease to be performed by Landlord, such exculpation of liability to be
absolutely and without any exceptions whatsoever.
37
SECTION 43. SIGNS AND ADVERTISING.
Tenant will not place or suffer to be placed or maintained on the exterior
of the Premises any additional sign or advertising matter, and will not place or
maintain any additional decoration, lettering or advertising matter on the glass
or other surface of any window or door or corridor wall of the Premises, without
first obtaining Landlord's written approval thereof; and Tenant further agrees
to maintain such sign, declaration, lettering, advertising matter or other thing
as may be approved in good condition and repair at all times and in compliance
with applicable law. Tenant shall have the right to have their company name and
logo placed at their internal office entrance and on the building's tenant
directory, so long as such signs conform to building standard.
SECTION 44. DELIVERY OF POSSESSION.
Landlord will not be responsible if he is unable to deliver possession on
the commencement date shown above. Landlord will use his best efforts to deliver
on the commencement date or as soon thereafter as possible and rent will be
abated on a daily basis until possession is delivered to Tenant. Delay in
deliver of possession will not lengthened the term of this Lease which will
terminate in any event on the termination date shown above.
SECTION 45. ISRA COMPLIANCE.
A. Tenant shall, at Tenant's own expense, comply with the Industrial Site
Recovery Act, N.J.S.A. 13:lK-6, et seq. and the regulations promulgated
thereunder ("ISRA"). Tenant shall, at Tenant's own expense, make all submissions
to, provide all information to, and comply with all requirements of, the Bureau
of
38
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 be prepared and that a cleanup be undertaken
because of spills or discharges of hazardous substances or wastes at the
premises which occur during the term of this Lease, 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 arise if there is any closing, terminating or transferring of
operations of an industrial establishment at the premises pursuant to ISRA. At
no expense to Landlord, Tenant shall promptly provide all information requested
by Landlord for preparation of non-applicability affidavits and shall promptly
sign such affidavits when requested by Landlord. Tenant shall indemnify, defend
and save harmless Landlord from all fines, suits, procedures, 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 Premises which occur during the term of
this Lease if such spills and discharges were caused by Tenant or resulted from
Tenant's operation; and from all fines, suits, procedures, 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 ISRA Bureau or any other
division of NJDEP. Tenant's obligations and liabilities under this paragraph
shall continue during the term of this Lease and shall survive the expiration or
earlier termination of the Lease Term. Tenant's failure to abide by the terms of
this Paragraph shall be restrainable by injunction.
B. Tenant shall not (either with or without negligence) cause or permit the
escape, disposal or release of any biologically or chemically active or other
hazardous substances, or materials.
39
Tenant shall not allow the storage or use of such substances or materials in any
manner not sanctioned by law or by the highest standards prevailing in the
industry for the storage and use of such substances or materials, nor allow to
be brought into the Project any such materials or substances except to use in
the ordinary course of Tenant's business, and then only after written notice is
given to Landlord of the identity of such substances or materials. Without
limitation, hazardous substances and materials shall include those described in
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601, et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 9601 et seq., any applicable state
or local laws and the regulations adopted under these Acts. If any lender or
governmental agency shall ever reasonably require testing to ascertain whether
or not there has been release of hazardous materials, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as additional
charges if such requirement applies to the Premises, provided that any such
required testing is not in connection with a sale or refinancing of the land or
building, nor resulting from a spill, discharge or release by the Landlord or
other Tenants. In addition, Tenant shall execute affidavits, representations and
the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous substances or materials
on the Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this Lease from any release of hazardous materials on the
Premises occurring while Tenant is in possession, or elsewhere if caused by
Tenant or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the Lease term.
40
SECTION 46. PREPAPATION OF LEASE NOT TO CONSTITUTE OFFER.
Preparation of the within Lease and submission to the Tenant do not
constitute an offer to Lease or an option to Lease. The within document shall be
of no force and effect unless and until the same is executed by both parties,
each receives a copy from the other, and the Tenant pays to the Landlord the
appropriate security deposit and advance rents and the checks for the same have
cleared through the Landlord's account.
IN WITNESS WHEREOF, the parties have hereunto caused these presents to be
signed by their proper corporate officers or representatives of the partnership,
as the case may be, on the day and year set forth at the heading of the within
Lease Agreement.
WITNESS: 55 MADISON ASSOCIATES, LLC,
a New Jersey Limited Liability
Company, Landlord
/s/ Xxxxxx X. Xxxx By: /s/ Xxxxx Xxxxxx
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XXXXXX X. XXXX Operating Manager
WITNESS: FIBERTECH & WIRELESS INC.,
Tenant
/S/ Xxxxx Xxxxx By: /s/ A. Xxxx Xxxx
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XXXXX XXXXX A. XXXX XXXX
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