EXHIBIT 10.14
LEASE AGREEMENT
BY AND BETWEEN
RREEF USA FUND-I, A California Group Trust, Lessor
- AND -
GO AMERICA INC., Lessee
DATED: August 7, 1996
TABLE OF CONTENTS
BASIC LEASE PROVISIONS AND DEFINITIONS.......................................................................... 1
1. DESCRIPTION............................................................................................ 3
2. TERM................................................................................................... 3
3. BASIC RENT............................................................................................. 3
4. USE AND OCCUPANCY...................................................................................... 3
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL.............................................................. 3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS................................................................. 6
7. ACTIVITIES INCREASING FIRE INSURANCE RATES............................................................. 6
8. ASSIGNMENT AND SUBLEASE................................................................................ 6
9. COMPLIANCE WITH RULES AND REGULATIONS.................................................................. 9
10. DAMAGES TO BUILDING.................................................................................... 9
11. WAIVER OF SUBROGATION.................................................................................. 10
12. EMINENT DOMAIN......................................................................................... 10
13. INSOLVENCY OF LESSEE................................................................................... 11
14. LESSOR'S REMEDIES ON DEFAULT........................................................................... 11
15. DEFICIENCY............................................................................................. 11
16. SUBORDINATION OF LEASE................................................................................. 12
17. SECURITY DEPOSIT....................................................................................... 13
18. RIGHT TO CURE LESSEE'S BREACH.......................................................................... 13
19. LIENS.................................................................................................. 13
20. RIGHT TO INSPECT AND REPAIR............................................................................ 14
21. SERVICES TO BE PROVIDED BY LESSOR...................................................................... 14
22. AFTER-HOURS USE........................................................................................ 14
23. INTERRUPTION OF SERVICES OR USE........................................................................ 15
24. ELECTRICITY............................................................................................ 15
25. ADDITIONAL RENT........................................................................................ 18
(A) Operating Cost Escalation..................................................................... 18
(B) Fuel, Utilities and Electric Cost Escalation.................................................. 19
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(C) Tax Escalation................................................................................ 19
(D) Lease Year.................................................................................... 20
(E) Payment....................................................................................... 20
(F) Books and Records............................................................................. 20
(G) Right of Review............................................................................... 21
(H) Occupancy Adjustment.......................................................................... 21
26. LESSEE'S ESTOPPEL...................................................................................... 21
27. HOLDOVER TENANCY....................................................................................... 22
28. RIGHT TO SHOW PREMISES................................................................................. 22
29. CONDITION OF PREMISES.................................................................................. 22
30. WAIVER OF TRIAL BY JURY................................................................................ 22
31. LATE CHARGE............................................................................................ 22
32. INSURANCE.............................................................................................. 23
(A) Lessee's Insurance............................................................................ 23
(B) Lessor's Insurance............................................................................ 25
(C) Waiver of Subrogation......................................................................... 25
33. NO OTHER REPRESENTATIONS............................................................................... 25
34. QUIET ENJOYMENT........................................................................................ 26
35. INDEMNITY.............................................................................................. 26
36. RULES OF CONSTRUCTION/APPLICABLE LAW................................................................... 26
37. APPLICABILITY TO HEIRS AND ASSIGNS..................................................................... 26
38. PARKING................................................................................................ 27
39. LESSOR'S EXCULPATION................................................................................... 27
40. COMMISSION............................................................................................. 28
41. RECORDATION............................................................................................ 28
42. NO OPTION.............................................................................................. 28
43. DEFINITIONS............................................................................................ 28
(A) Affiliate......................................................................................... 28
(B) Business Days and Building Hours.............................................................. 28
(C) Common Facilities............................................................................. 28
(D) Force Majeure................................................................................. 29
(E) Lessee's Percentage........................................................................... 29
44. LEASE COMMENCEMENT..................................................................................... 29
45. NOTICES................................................................................................ 30
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46. ACCORD AND SATISFACTION................................................................................ 30
47. EFFECT OF WAIVERS...................................................................................... 30
48. LESSOR'S RESERVED RIGHT................................................................................ 30
49. ERISA REPRESENTATION................................................................................... 30
50. RELOCATION BY LESSEE................................................................................... 31
51. CORPORATE AUTHORITY.................................................................................... 31
52. NUMBER AND GENDER...................................................................................... 31
53. LESSEE RESTRICTION..................................................................................... 31
54. GOVERNMENT REQUIREMENTS................................................................................ 32
55. CONTINGENCY............................................................................................ 32
56. LIMITATION OF LESSOR'S LIABILITY....................................................................... 32
The following Exhibits attached to this Lease are incorporated herein
and made a part hereof:
Exhibit A Premises
Exhibit A-1 Parcel
Exhibit B Rules and Regulations
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LEASE, made the 7th day of August 0000, xxxxxxx XXXXX XXX FUND-I, A
California Group Trust, whose address is 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 (hereinafter called "Lessor"); and GO AMERICA INC., a New Jersey
corporation, whose address is 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000 (hereinafter called "Lessee").
REFERENCE PAGE
CONTINENTAL PLAZA
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the
following terms whenever used in this Lease should have only the meanings set
forth in this Section, unless such meanings are expressly modified, limited or
expanded elsewhere herein.
(1) Additional Rent: All sums in addition to Term Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of this Lease.
(2) Base Period Costs: As to the following:
(A) Base Operating Costs: Those costs incurred for the
Building, Complex and Parcel during Calendar Year 1996.
(B) Base Real Estate Taxes: Those Real Estate Taxes
assessed against the Building, Complex and Parcel applicable to
Calendar Year 1996.
(C) Base Utility and Energy Costs: Those costs determined by
multiplying the Base Utility Rate (as hereinafter defined) by the usage
incurred for the Building, Complex and Parcel during Calendar Year
1996.
(3) Base Utility Rate: The average rate in effect (including fuel
surcharges and/or adjustments) from July 1, 1995 through June 30, 1996.
(4) Brokers: Xxxxxxx & Xxxxxxxxx of New Jersey, Inc. and CB Commercial
Real Estate Group, Inc.
(5) Building: 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx.
(6) Commencement Date: September 1, 1996 and shall for purposes hereof
be subject to Sections 29 and 44 hereof.
(7) Demised Premises or Premises: Approximately 2,354 gross rentable
square feet on the third (3rd) floor as shown on Exhibit A hereto, which
includes an allocable share of the Common Facilities as defined in
Subsection 43(C).
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(8) Electric Rent Inclusion Factor: Two Thousand Three Hundred
Fifty-four and 00/100 ($2,354.00) Dollars per annum.
(9) Term Fixed Basic Rent: One Hundred Forty-eight Thousand Three
Hundred Two and 00/100 ($148,302.00) Dollars for the Term, payable as
follows:
======================================== ===================================== =====================================
Annual Fixed Monthly Fixed
Year Basic Rent Basic Rent
---------------------------------------- ------------------------------------- -------------------------------------
1 $47,080.00 $3,923.33
---------------------------------------- ------------------------------------- -------------------------------------
2 $49,434.00 $4,119.50
---------------------------------------- ------------------------------------- -------------------------------------
3 $51,788.00 $4,315.67
======================================== ===================================== =====================================
all subject to further adjustment as in Subsection 24(B)(i) provided.
(10) Lessee's Percentage: .40(%) percent subject to adjustment as in
Subsection 43(E) provided.
(11) Parcel: Xxx 0.X Xxxxx 000.X, Xxx 0 Xxxxx 514 on the tax map of
the City of Hackensack; Xxx 0 Xxxxx 00 on the tax map of the Borough of
River Edge.
(12) Parking Spaces: A total of nine (9) spaces, four (4) of which
shall be covered and five (5) of which shall be uncovered.
(13) Permitted Use: For general office use and nothing else.
(14) Security Deposit: Four Thousand One Hundred Nineteen and 50/100
($4,119.50) Dollars.
(15) Term: Three (3) years from the Commencement Date unless extended
pursuant to any option contained herein.
(16) Termination Date: The third (3rd) anniversary of the Commencement
Date.
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W I T N E S S E T H:
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION. Lessor hereby leases to Lessee, and Lessee hereby hires
from Lessor, the Demised Premises as defined on the Reference Page (hereinafter
called "Demised Premises" or "Premises"), as shown on the plan or plans,
initialed by the parties hereto, marked Exhibit A attached hereto and made part
of this Lease in the Building as defined on the Reference Page (hereinafter
called the "Building") which is situated as part of that Complex of Buildings
known as 401, 407, 411 and 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx, also
known as Continental Plaza (hereinafter called the "Complex"), all located on
that certain Parcel as defined on the Reference Page (hereinafter called the
"Parcel"), as described on Exhibit A-1, together with the right to use in common
with other lessees of the Building, their invitees, customers and employees,
those public areas of the Common Facilities as hereinafter defined.
2. TERM. The Premises are leased for the Term to commence on the
Commencement Date, and to end at 12:00 midnight on the Termination Date, all as
defined on the Reference Page.
3. BASIC RENT. The Lessee shall pay to the Lessor during the Term, the Term
Fixed Basic Rent as defined on the Reference Page (hereinafter called the "Term
Fixed Basic Rent"), payable in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts. The Term Fixed Basic Rent shall accrue at the Annual
Fixed Basic Rent as defined on the Reference Page and shall be payable in
advance on the first day of each calendar month during the Term in installments
of Monthly Fixed Basic Rent as defined on the Reference Page, except that a
proportionately lesser sum may be paid for the first and last months of the Term
of this Lease if the Term commences on a day other than the first day of the
month, in accordance with the provisions of this Lease herein set forth. Lessor
acknowledges receipt from Lessee of the first installment of Monthly Fixed Basic
Rent for the Term, by check, subject to collection. Lessee shall pay Fixed Basic
Rent and any Additional Rent as hereinafter provided, to Lessor at Lessor's
above stated address, or at such other place as Lessor may designate in writing,
without demand and without counterclaim, deduction or setoff. The aforesaid
Fixed Basic Rent shall be subject to adjustment as in Section 24 provided. As
used in this Lease, Fixed Basic Rent shall mean either Term Fixed Basic Rent,
Annual Fixed Basic Rent or Monthly Fixed Basic Rent, as appropriate.
4. USE AND OCCUPANCY. Lessee shall use and occupy the Premises for the
Permitted Use as defined on the Reference Page and for no other purpose.
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5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL. (A) Lessee covenants to
commit no act of waste and to take good care of the Premises and the fixtures
and appurtenances thereon, and shall, in the use and occupancy of the Premises,
comply with all present and future laws, orders and regulations of the Federal,
State and municipal governments or any of their departments affecting the
Premises and with any and all environmental requirements resulting from the
Lessee's use of the Premises; this covenant to survive the expiration or sooner
termination of the Lease. Lessor shall, at Lessee's expense, make all necessary
repairs to the Premises. Lessor shall make all necessary repairs to the Common
Facilities and to the parking areas, if any, the same to be included as an
Operating Cost pursuant to Section 25 herein, except where the repair has been
made necessary by misuse or neglect by Lessee or Lessee's agents, servants,
visitors or licensees, in which event Lessor shall nevertheless make the repair
but Lessee shall pay to Lessor, as Additional Rent, immediately upon demand, the
costs therefor. All improvements made by Lessee 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 Lessor upon installation. Not later
than the last day of the Term, Lessee shall, at Lessee's expense, remove all
Lessee's personal property and those improvements made by Lessee which have not
become the property of Lessor, including trade fixtures, cabinetwork, 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 Lessee, Lessee's agents, servants, visitors
or licensees excepted. All other property of Lessee remaining on the Premises
after the last day of the Term of this Lease shall be conclusively deemed
abandoned and may be removed by Lessor, and Lessee shall reimburse Lessor for
the cost of such removal. Lessor may have any such property stored at Lessee's
risk and expense.
(B) Lessee acknowledges the existence of environmental laws,
rules and regulations, including but not limited to the provisions of ISRA, as
hereinafter defined. Lessee shall comply with any and all such laws, rules and
regulations. Lessee represents to Lessor that Lessee's Standard Industrial
Classification (SIC) Number as designated in the Standard Industrial
Classifications Manual prepared by the Office of Management and Budget in the
Executive Office of the President of the United States will not subject the
Demised Premises to ISRA applicability. Any change by Lessee to an operation
with an SIC Number subject to ISRA shall require Lessor's written consent. Any
such proposed change shall be sent in writing to Lessor sixty (60) days prior to
the proposed change. Lessor, at its sole option, may deny consent.
(C) Lessee hereby agrees to execute such documents as Lessor
reasonably deems necessary and to make such applications
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as Lessor reasonably requires to assure compliance with ISRA. Lessee shall bear
all costs and expenses incurred by Lessor associated with any required ISRA
compliance resulting from Lessee's use of the Demised Premises including but not
limited to State agency fees, engineering fees, clean-up costs, filing fees and
suretyship expenses. As used in this Lease, ISRA compliance shall include
applications for determinations of nonapplicability by the appropriate
governmental authority. The foregoing undertaking shall survive the termination
or sooner expiration of the Lease and surrender of the Demised Premises and
shall also survive sale, or lease or assignment of the Demised Premises by
Lessor. Lessee agrees to indemnify and hold Lessor harmless from any violation
of ISRA occasioned by Lessee's use of the Demised Premises. The Lessee shall
immediately provide the Lessor with copies of all correspondence, reports,
notices, orders, findings, declarations and other materials pertinent to the
Lessee's compliance and the requirements of the New Jersey Department of
Environmental Protection ("NJDEP") under ISRA as they are issued or received by
the Lessee.
(D) Lessee agrees not to generate, store, manufacture, refine,
transport, treat, dispose of, or otherwise permit to be present on or about the
Demised Premises, any Hazardous Substances. As used herein, Hazardous Substances
shall be defined as any "hazardous chemical," "hazardous substance" or similar
term as defined in the Comprehensive Environmental Responsibility Compensation
and Liability Act, as amended (42 U.S.C. 9601, et seq.), the New Jersey
Environmental Cleanup Responsibility Act, as amended, N.J.S.A. 13:1K-6 et seq.
and/or the Industrial Site Recovery Act ("ISRA"), the New Jersey Spill
Compensation and Control Act, as amended, N.J.S.A. 58:10-23.11b, et seq., any
rules or regulations promulgated thereunder, or in any other applicable Federal,
State or local law, rule or regulation dealing with environmental protection. It
is understood and agreed that the provisions contained in this Section shall be
applicable notwithstanding the fact that any substance shall not be deemed to be
a Hazardous Substance at the time of its use by the Lessee but shall thereafter
be deemed to be a Hazardous Substance.
(E) In the event Lessee fails to comply with ISRA as stated in
this Section or any other governmental law as of the termination or sooner
expiration of the Lease and as a consequence thereof Lessor is unable to rent
the Demised Premises, then the Lessor shall treat the Lessee as one who has not
removed at the end of its Term, and thereupon be entitled to all remedies
against the Lessee provided by law in that situation including a monthly rental
of two hundred (200%) percent of the installment of Monthly Fixed Basic Rent for
the last month of the Term of this Lease or any renewal term, payable in advance
on the first day of each month, until such time as Lessee provides Lessor with a
negative declaration or confirmation that any required clean-up plan has been
successfully completed.
(F) Lessee agrees that Lessee, its agents and contractors,
licensees, or invitees shall not handle, use,
5
manufacture, store or dispose of any Hazardous Substances on, under, or about
the Premises, without Lessor's prior written consent (which consent may be given
or withheld in Lessor's sole discretion), provided that Lessee may handle,
store, use or dispose of products containing small quantities of Hazardous
Substances, which products are of a type customarily found in offices and
households (such as aerosol cans containing insecticides, toner for copies,
paints, paint remover, and the like), and provided further that Lessee shall
handle, store, use and dispose of any such Hazardous Substances in a safe and
lawful manner and shall not allow such Hazardous Substances to contaminate the
Premises or the environment.
(G) Without limiting the above, Lessee agrees to reimburse,
defend, indemnify and hold harmless the Lessor and each mortgagee of the Demised
Premises from and against any and all liabilities, damages, claims, losses,
judgments, causes of action, costs and expenses, including without limitation,
loss of rental income, loss due to business interruption, and the reasonable
fees and expenses of counsel which may be incurred by the Lessor or any such
mortgagee or threatened against the Lessor or such mortgagee, arising out of or
in any way connected with the use, manufacture, storage or disposal of Hazardous
Substances by Lessee, its agents or contractors on, under or about the Premises
including, without limitation, the costs of any required or necessary
investigation, repair, cleanup or detoxification, and the preparation of any
closure or other required plans in connection herewith, whether voluntary or
compelled by governmental authority, or any breach by Lessee of the undertakings
set forth in this Section. The indemnity obligations of Lessee under this clause
shall survive any termination or expiration of the Lease.
(H) Notwithstanding anything set forth in this Lease, Lessee
shall only be responsible for contamination of Hazardous Substances or any
cleanup resulting directly therefrom, resulting directly from matters occurring
or Hazardous Substances deposited (other than by contractors, agents or
representatives controlled by Lessor) during the Lease Term, and any other
period of time during which Lessee is in actual or constructive occupancy of the
Premises. Lessee shall take reasonable precautions to prevent the contamination
of the Premises with Hazardous Substances by third parties.
(I) It shall not be unreasonable for Lessor to withhold its
consent to any proposed assignment or sublease if (i) the proposed assignee's or
sublessee's anticipated use of the Premises involves the generation, storage,
use, treatment or disposal of Hazardous Substances; (ii) the proposed assignee
or sublessee has been required by any prior landlord, lender or governmental
authority to take remedial action in connection with Hazardous Substances
contaminating a property if the contamination resulted from such assignee's or
sublessee's actions or use of the property in question; or (iii) the proposed
assignee or sublessee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal,
6
or storage of a Hazardous Substance.
(J) Notwithstanding anything contained herein to the contrary,
in the event ISRA compliance becomes necessary due to any action or inaction on
the part of Lessor, including by way of example but not limitation, a sale of
the Building, a change in ownership, initiation of bankruptcy proceedings, or
Lessor's financial reorganization, then Lessor shall be responsible for the
making of all necessary applications and payment of all application fees related
thereto.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS. Lessee shall not, without first
obtaining the written consent of Lessor, make any alterations, additions or
improvements in, to or about the Premises.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES. Lessee shall not do or
suffer anything to be done on the Premises which will increase the rate of fire
insurance on the Building.
8. ASSIGNMENT AND SUBLEASE. Lessee may not mortgage, pledge, hypothecate,
assign, transfer, sublet or otherwise deal with this Lease or the Premises in
any manner except as specifically provided for in this Section 8:
(A) In the event that the Lessee desires to sublease the whole
or any portion of the Premises or assign the within Lease to any other
party, the terms and conditions of such sublease or assignment shall be
communicated to the Lessor in writing not less than thirty (30) days
prior to the effective date of any such sublease or assignment, and,
prior to such effective date, the Lessor shall have the option,
exercisable in writing to the Lessee within twenty (20) days following
Lessor's receipt of Lessee's request to sublease or assign, to
recapture the within Lease so that such prospective sublessee or
assignee shall then become the sole lessee of Lessor hereunder or
alternatively to recapture said space and the within Lessee shall be
fully released from any and all obligations hereunder.
(B) In the event that the Lessor elects not to recapture the
Lease or part thereof as the case may be in accordance with (A) above,
the Lessee may nevertheless assign this Lease or sublet the whole or
any portion of the Premises so offered to Lessor, subject to the
Lessor's prior written consent, which consent shall not be unreasonably
withheld, and subject to the consent of any mortgagee, trust deed
holder or ground lessor, on the basis of the terms and conditions
enumerated herein in this Subsection 8(B). However, Lessor shall not be
deemed unreasonable if it refuses to consent to any proposed sublease
or an assignment of the Lease to a tenant, subtenant or other occupant
of
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the Building or Complex (or to a subsidiary or affiliate), or if, in
the reasonable judgment of Lessor, the business of such proposed
subtenant or assignee is not compatible with the type of occupancy of
the Building, violates any exclusive granted to any other tenant in the
Building, or such business will create increased use of the Common
Facilities of the Parcel and/or Building or if the proposed sublease or
assignment is to any State, Federal or municipal agency or bureau.
(1) The Lessee shall provide to the Lessor the name
and address of the assignee or sublessee, and copies of financial
reports and other relevant financial information of the assignee or
sublessee reasonably required by Lessor.
(2) The assignee or sublessee shall assume, by
written instrument, all of the obligations of this Lease, and a copy of
such assumption agreement shall be furnished to the Lessor within ten
(10) days of its execution. Any sublease shall expressly acknowledge
that said sublessee's rights against the Lessor shall be no greater
than those of the Lessee.
(3) The Lessee and each assignee shall be and remain
liable for the observance of all the covenants and provisions of this
Lease, including, but not limited to, the payment of Term Fixed Basic
Rent and Additional Rent reserved herein as and when required to be
paid, through the entire Term of this Lease, as the same may be
renewed, extended or otherwise modified.
(4) The Lessee and any assignee shall promptly pay to
Lessor any consideration received for any assignment or all of the rent
(Fixed Basic and Additional), as and when received, in excess of the
Term Fixed Basic Rent and Additional Rent required to be paid by Lessee
for the period affected by said assignment or sublease for the area
sublet, computed on the basis of an average square foot rent for the
gross square footage Lessee has leased.
(5) In any event, the acceptance by the Lessor of any
rent (Fixed Basic and Additional) from the assignee or from any of the
subtenants or the failure of the Lessor to insist upon a strict
performance of any of the terms, conditions and covenants herein shall
not release the Lessee herein, nor any assignee assuming this Lease,
from any and all of the obligations herein during and for the entire
Term of this Lease.
(6) Lessor shall require a Five Hundred and 00/100
($500.00) Dollar payment to cover its handling
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charges for each request for consent to any sublet or assignment prior
to its consideration of the same.
(7) Lessee shall have no claim, and hereby waives the
right to any claim, against Lessor for money damages by reason of any
refusal, withholding or delaying by Lessor of any consent, and in such
event, Lessee's only remedies therefor shall be an action for specific
performance, injunction or declaratory judgment to enforce any such
requirement.
(C) Any sublet or assignment to an "Affiliate" as hereinafter
defined shall not be subject to the provisions of Subsections 8(A),
8(B)(4) or 8(B)(6) hereof and shall not require Lessor's prior written
consent, but all other provisions of this Section shall apply.
(D) In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law to any
trustee, receiver, or other representative or agent of Lessee, or to
Lessee as a debtor in possession, and subsequently any or all of
Lessee's interest in the Premises and/or this Lease is offered or to be
offered by Lessee or any trustee, receiver, or other representative or
agent of Lessee as to its estate or property (such person, firm or
entity being hereinafter referred to as the "Grantor"), for assignment,
conveyance, lease, or other disposition to a person, firm or entity
other than Lessor (each such transaction being hereinafter referred to
as a "Disposition"), it is agreed that Lessor has and shall have a
right of first refusal to purchase, take, or otherwise acquire, the
same upon the same terms and conditions as the Grantor thereof shall
accept upon such Disposition to such other person, firm, or entity; and
as to each such Disposition the Grantor shall give written notice to
Lessor in reasonable detail of all of the terms and conditions of such
Disposition within twenty (20) days next following its determination to
accept the same but prior to accepting the same, and Grantor shall not
make the Disposition until and unless Lessor has failed or refused to
accept such right of first refusal as to the Disposition, as set forth
herein.
Lessor shall have sixty (60) days next following its
receipt of the written notice as to such Disposition in which to
exercise the option to acquire Lessee's interest by such Disposition,
and the exercise of the option by Lessor shall be effected by notice to
that effect sent to the Grantor; but nothing herein shall require
Lessor to accept a particular Disposition or any Disposition, nor does
the rejection of any one such offer of first refusal constitute a
waiver or release of the obligation of the Grantor to submit
9
other offers hereunder to Lessor. In the event Lessor accepts such
offer of first refusal, the transaction shall be consummated pursuant
to the terms and conditions of the Disposition described in the notice
to Lessor. In the event Lessor rejects such offer of first refusal,
Grantor may consummate the Disposition with such other person, firm,
or entity; but any decrease in price of more than two (2%) percent of
the price sought from Lessor or any change in the terms of payment for
such Disposition shall constitute a new transaction requiring a
further option of first refusal to be given to Lessor hereunder.
(E) Without limiting any of the provisions of Sections 13 and
14, if pursuant to the Federal Bankruptcy Code (or any similar law
hereafter enacted having the same general purpose), or if pursuant to
any State insolvency or bankruptcy law, Lessee is permitted to assign
this Lease, notwithstanding the restrictions contained in this Lease,
adequate assurance of future performance by an assignee expressly
permitted under such code or law shall be deemed to mean the deposit of
cash security in an amount equal to the sum of one (1) year's Annual
Fixed Basic Rent and Additional Rent for the next succeeding twelve
(12) months (which Additional Rent shall be reasonably estimated by
Lessor), which deposit shall be held by Lessor for the balance of the
Term, without interest, as Additional Security Deposit, as hereinafter
defined, for the full performance of all of Lessee's obligations under
this Lease, to be held and applied in the manner specified for the
Security Deposit in Section 17 hereof.
(F) The sale or transfer of stock control, if Lessee be a
corporation, shall be deemed an assignment of this Lease unless: (a) it
involves the sale or issuance of securities registered under the
Securities Act of 1933, as amended, (b) it is made amongst the existing
stockholders of Lessee, or (c) it results from the death of a
stockholder of Lessee.
(G) Except as specifically set forth above, no portion of the
Demised Premises or of Lessee's interest in this Lease may be acquired
by any other person or entity, whether by assignment, mortgage,
sublease, transfer, operation of law or act of the Lessee, nor shall
Lessee pledge its interest in this Lease or in any Security Deposit
required hereunder.
(H) If Lessee is a corporation and if at any time during the
Lease Term the persons owning a majority of its "voting stock" at the
time of the execution of this Lease should cease to own a majority of
such voting stock (except as the result of transfers by bequest or
inheritance), Lessee covenants to notify Lessor of any such transfer
and such transfer shall be deemed an
10
assignment of this Lease. In the event of such transfer, Lessor may
not unreasonably withhold its consent thereto taking into account the
financial status of such transferee and its ability to perform all of
the terms, covenants and conditions of this Lease, subject to the
terms and provisions of this Section 8. This Section shall not apply
whenever Lessee is a corporation, the outstanding stock of which is
listed on a recognized stock exchange. For the purposes of this
Subsection 8(H), stock ownership shall be determined in accordance
with the principles set forth in Section 544 of the Internal Revenue
Code of 1986, as amended, to and including the date of this Lease, and
the term "voting stock" shall refer to shares of stock regularly
entitled to vote for the election of directors of the corporation.
9. COMPLIANCE WITH RULES AND REGULATIONS. Lessee shall observe and
comply with the Rules and Regulations hereinafter set forth in Exhibit B
attached hereto and made a part hereof and with such further reasonable Rules
and Regulations as Lessor may prescribe, on notice to the Lessee, for the
safety, care and cleanliness of the Building and the comfort, quiet and
convenience of other occupants of the Building.
10. DAMAGES TO BUILDING. If the Building is damaged by fire or any
other cause to such extent that the cost of restoration, as reasonably estimated
by Lessor, 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 Lessor may, no later than the sixtieth (60th) day following the
damage, give Lessee a notice of election to terminate this Lease, or if the cost
of restoration will equal or exceed fifty (50%) percent of such replacement
value and if the Premises shall not be reasonably usable for the purpose for
which they are leased hereunder, then Lessee may, no later than the sixtieth
(60th) day following the damage, give Lessor a notice of election to terminate
this Lease. In either said event of election, this Lease shall be deemed to
terminate on the thirtieth (30th) day after the giving of said notice, and
Lessee shall surrender possession of the Premises within a reasonable time
thereafter; and the Term Fixed Basic Rent and any Additional Rent shall be
apportioned as of the date of said surrender, and any Term Fixed Basic Rent or
Additional Rent paid for any period beyond the latter of the thirtieth (30th)
day after said notice, or the date Lessee surrenders possession, shall be repaid
to Lessee. If the cost of restoration shall not entitle Lessor to terminate this
Lease or if, despite the cost, Lessor does not elect to terminate this Lease,
Lessor shall restore the Building and the Premises with reasonable promptness,
subject to Force Majeure, as hereinafter defined, and except as stated above,
Lessee shall have no right to terminate this Lease. Lessor need not restore
fixtures and improvements owned by Lessee.
Except as provided in Section 5 hereof, notwithstanding
11
the provisions of this Section or any other provision of this Lease, Lessor
shall not have any obligation whatsoever to repair, reconstruct, or restore the
Premises when the damages resulting from any casualty covered by the provisions
of this Section occur during the last six (6) months of the Term or any
extension thereof.
In any case in which use of the Premises is affected by any
damage to the Building, there shall be either an abatement or an equitable
reduction in Term Fixed Basic Rent and an equitable reduction in the Base Period
Costs as established in Section 25 depending on the period for which and the
extent to which the Premises are not reasonably usable for the purpose for which
they are leased hereunder. The words "restoration" and "restore" as used in this
Section 10 shall include repairs. If the damage results from the fault of the
Lessee, or Lessee's agents, servants, visitors or licensees, Lessee shall not be
entitled to any abatement or reduction in Term Fixed Basic Rent or Additional
Rent, except to the extent of any rent insurance received by Lessor.
11. WAIVER OF SUBROGATION. Except as provided in Section 5 hereof,
notwithstanding the provisions of this Section or any other provision of this
Lease, in the event of any loss or damage to the Building, the Premises and/or
any contents (herein "property damage"), each party waives all claims against
the other for any such loss or damage and each party shall look only to any
insurance which it has obtained to protect against such loss (or in the case of
Lessee, waives all claims against any tenant of the Building that has similarly
waived claims against such Lessee), and each party shall obtain, for each policy
of such insurance, provisions waiving any claim against the other party [and
against any other tenant(s) in the Building that has waived subrogation against
the Lessee] for loss or damage within the scope of such insurance.
12. EMINENT DOMAIN. If Lessee's use of the Premises is materially
affected due to the taking by eminent domain of (a) the Premises or any part
thereof or any estate therein; or (b) any other part of the Building; then, in
either event, this Lease shall terminate on the date when title vests pursuant
to such taking. The Term Fixed Basic Rent and any Additional Rent shall be
apportioned as of said termination date and any Term Fixed Basic Rent or
Additional Rent paid for any period beyond said date shall be repaid to Lessee.
Lessee shall not be entitled to any part of the award for such taking or any
payment in lieu thereof, but Lessee may file a separate claim for any taking of
fixtures and improvements owned by Lessee which have not become the Lessor's
property, and for moving expenses, provided the same shall in no way affect or
diminish Lessor's award. In the event of a partial taking which does not effect
a termination of this Lease but does deprive Lessee of the use of a portion of
the Demised Premises, there shall either be an abatement or an equitable
reduction of the Term Fixed Basic Rent, and an equitable adjustment reducing the
Base Period Costs depending on
12
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.
13. INSOLVENCY OF LESSEE. Either (a) the appointment of a receiver to
take possession of all or substantially all of the assets of Lessee, or (b) a
general assignment by Lessee for the benefit of creditors, or (c) any action
taken or suffered by Lessee under any insolvency or bankruptcy act, shall
constitute a default of this Lease by Lessee, and Lessor may terminate this
Lease forthwith and upon notice of such termination Lessee's right to possession
of the Demised Premises shall cease, and Lessee shall then quit and surrender
the Premises to Lessor but Lessee shall remain liable as hereinafter provided in
Section 14 hereof.
14. LESSOR'S REMEDIES ON DEFAULT. If Lessee defaults in the payment of
Term Fixed Basic Rent or any Additional Rent, or defaults in the performance of
any of the other covenants and conditions hereof or permits the Premises to
become deserted, abandoned or vacated, or defaults in the performance of any
other lease held by Lessee or its Affiliates from Lessor or from any landlord in
which Lessor's principals have at least a twenty-five (25%) percent interest,
Lessor may give Lessee notice of such default, and if Lessee does not cure any
Term Fixed Basic Rent or Additional Rent default within five (5) days of the
giving of such notice or other default within fifteen (15) days after giving of
such notice [or if such other default is of such nature that it cannot be
completely cured within such period, if Lessee does not commence such curing
within such fifteen (15) days and thereafter proceed with reasonable diligence
and in good faith to cure such default], then Lessor may terminate this Lease on
not less than ten (10) days' notice to Lessee, and on the date specified in said
notice, Lessee's right to possession of the Demised Premises shall cease, and
Lessee shall then quit and surrender the Premises to Lessor, but Lessee shall
remain liable as hereinafter provided. If this Lease shall have been so
terminated by Lessor pursuant to Sections 13 or 14 hereof, Lessor may at any
time thereafter resume possession of the Premises by any lawful means and remove
Lessee or other occupants and their effects.
15. DEFICIENCY. In any case where Lessor has recovered possession of
the Premises by reason of Lessee's default, Lessor may, at Lessor'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 Lessee 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 Lessor's option,
and receive Term Fixed Basic Rent and Additional Rent therefor. Term Fixed Basic
Rent or Additional Rent so received shall be applied first to the payment of
such expenses as Lessor may have incurred in connection with the recovery of
possession, redecorating,
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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 Term Fixed Basic Rent and Additional Rent hereunder and to the costs and
expenses of performance of the other covenants of Lessee as herein provided.
Lessee agrees, in any such case, whether or not Lessor has relet, to pay to
Lessor damages equal to the Term Fixed Basic Rent and Additional Rent and other
sums herein agreed to be paid by Lessee, as and when due, less the net proceeds
of the reletting, if any, as ascertained from time to time, as of the due date,
and the same shall be payable by Lessee on the several rent days above
specified. Lessee shall not be entitled to any surplus accruing as a result of
any such reletting, nor shall any surplus be applied to offset the damages
referred to in the preceding sentence. In reletting the Premises as aforesaid,
Lessor may grant rent concessions, and Lessee shall not be credited therewith.
No such reletting shall constitute a surrender and acceptance or be deemed
evidence thereof. If Lessor 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 shall be allowed against Lessee's
obligation for Term Fixed Basic Rent and Additional Rent or damages as herein
defined, during the period of Lessor's occupancy, the reasonable value of such
occupancy, not to exceed in any event the Term Fixed Basic Rent and Additional
Rent herein reserved and such occupancy shall not be construed as a release of
Lessee's liability hereunder. Alternatively, in any case where Lessor has
recovered possession of the Premises by reason of Lessee's default, Lessor may
at Lessor's option, and at any time thereafter, and without notice or other
action by Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from Lessee, as
damages for such breach, in addition to such other sums herein agreed to be paid
by Lessee, to the date of re-entry, expiration and/or dispossess, an amount
equal to the difference between the Term Fixed Basic Rent and the Additional
Rent reserved in this Lease from the date of such default to the date of
expiration of the original Term demised and the then fair and reasonable rental
value (inclusive of Additional Rent and Term Fixed Basic Rent) of the Premises
for the same period. Said damages shall become due and payable to Lessor
immediately upon such breach of this Lease and without regard to whether this
Lease be terminated or not, and if this Lease is terminated, without regard to
the manner in which it is terminated. In the computation of such damages, the
difference between any installments of rent (Fixed Basic and Additional)
thereafter becoming due, and fair and reasonable rental value of the Premises
(inclusive of the same rent components) for the period for which such
installment was payable shall be discounted to the date of such default at the
rate of not more than four (4%) percent per annum.
Lessee hereby waives all right of redemption to which Lessee
or any person under Lessee might be entitled by any law now or hereafter in
force. In addition, in the event of a
14
default which results in the Lessor recovering possession of the Premises,
Lessor will use reasonable efforts to relet the Premises in order to mitigate
its damages provided that Lessor shall retain the right, in the exercise of its
reasonable business judgment, to approve any tenant and determine the reasonable
terms and conditions of any lease, including, but not limited to, rent and
length of term. Notwithstanding the foregoing, Lessor shall not be obligated to
display the Premises to prospective tenants if Lessor has other premises
available in the Building or Complex. However, if prospective tenants do not
find such other premises suitable, Lessor agrees that it will then display the
Premises to the prospective tenants.
Lessor's remedies hereunder are in addition to any remedy
allowed by law.
Lessee agrees to pay, as Additional Rent, all attorney's fees
and other expenses incurred by the Lessor in enforcing any of the obligations
under this Lease, this covenant to survive the expiration or sooner termination
of this Lease.
16. SUBORDINATION OF LEASE. This Lease and any option contained herein
shall, at Lessor's option, or at the option of any holder of any underlying
lease or holder of any first mortgage or first deed of trust, be subject and
subordinate to any such underlying leases and to any such first mortgage and/or
first trust deed which may now or hereafter affect the real property of which
the Premises form a part, and also to all renewals, modifications,
consolidations and replacements of said underlying leases and said first
mortgage and first trust deed. Although no instrument or act on the part of
Lessee shall be necessary to effectuate such subordination, Lessee will,
nevertheless, execute and deliver such further instruments confirming such
subordination of this Lease as may be desired by the holders of said first
mortgage and first trust deed or by any of the lessors under such underlying
leases. If any underlying lease to which this Lease is subject terminates,
Lessee shall, on timely request, attorn to the owner of the reversion.
17. SECURITY DEPOSIT. Lessee shall deposit with Lessor on the signing
of this Lease the Security Deposit as defined on the Reference Page for the full
and faithful performance of Lessee's obligations under this Lease, including
without limitation, the surrender of possession of the Premises to Lessor as
herein provided. If Lessor applies any part of said deposit to cure any default
of Lessee, Lessee shall on demand deposit with Lessor the amount so applied so
that Lessor shall have the full deposit on hand at all times during the Term of
this Lease. In the event of a bona fide sale, subject to this Lease, Lessor
shall have the right to transfer the Security Deposit to the vendee and Lessor
shall be considered released by Lessee from all liability for the return of such
Security Deposit; and Lessee agrees to look solely to the new lessor for the
return of the said Security Deposit, and it is agreed that this shall apply to
every transfer or assignment made of the Security Deposit to a new lessor. The
15
Security Deposit (less any portions thereof used, applied or retained by Lessor
in accordance with the provisions of this Section 17), shall be returned to
Lessee after the expiration or sooner termination of this Lease without the
fault of the Lessee and after delivery of the entire Premises to Lessor in
accordance with the provisions of this Lease. Lessee covenants that it will not
assign or encumber or attempt to assign or encumber the Security Deposit and
Lessor shall not be bound by any such assignment, encumbrance or attempt
thereof.
In the event of the insolvency of Lessee or in the event of
the entry of a judgment declaring Lessee insolvent or bankrupt in any court
which is not discharged within thirty (30) days after entry, or in the event a
petition is filed by or against Lessee under any chapter of the bankruptcy laws
of the State of New Jersey or the United States of America, then and in such
event Lessor may require the Lessee to deposit additional security in the amount
specified in Subsection 8(E) (hereinafter called the "Additional Security
Deposit") to adequately assure Lessee's performance of all of its obligations
under this Lease including all payments subsequently accruing. Failure of Lessee
to deposit the Additional Security Deposit pursuant thereto within ten (10) days
after Lessor's written demand shall constitute a default by Lessee.
18. RIGHT TO CURE LESSEE'S BREACH. If Lessee breaches any covenant or
condition of this Lease, Lessor may, on reasonable notice to Lessee (except that
no notice need be given in case of emergency), cure such breach at the expense
of Lessee and the reasonable amount of all expenses, including attorneys' fees,
incurred by Lessor in so doing (whether paid by Lessor or not) shall be deemed
Additional Rent payable on demand, with interest at two (2%) percent per annum
over the prime lending rate announced as such by Chase Manhattan Bank to its
most creditworthy customers or the highest rate permitted by law, whichever is
lower.
19. LIENS. Lessee shall not do any act, or make any contract, which may
create or be the foundation for any lien or other encumbrance upon any interest
of Lessor or any ground or underlying lessor in any portion of the Premises. If,
because of any act or omission (or alleged act or omission) of Lessee, any
Construction Lien Claim or other lien (collectively "Lien"), charge, or order
for the payment of money or other encumbrance shall be filed against Lessor
and/or any ground or underlying lessor and/or any portion of the Premises
(whether or not such Lien, charge, order, or encumbrance is valid or enforceable
as such), Lessee shall, at its own cost and expense, cause same to be discharged
of record or bonded within fifteen (15) days after the filing thereof; and
Lessee shall indemnify and save harmless Lessor and all ground and underlying
lessor(s) against and from all costs, liabilities, suits, penalties, claims, and
demands, including reasonable counsel fees, resulting therefrom. If Lessee fails
to comply with the foregoing provisions, Lessor shall have the option of
discharging or bonding any such Xxxx,
00
charge, order, or encumbrance, and Lessee agrees to reimburse Lessor for all
costs, expenses and other sums of money in connection therewith (as additional
rental) with interest at the maximum rate permitted by law promptly upon demand.
All materialmen, contractors, artisans, mechanics, laborers, and any other
persons now or hereafter contracting with Lessee or any contractor or
subcontractor of Lessee for the furnishing of any labor services, materials,
supplies, or equipment with respect to any portion of the Premises, at any time
from the date hereof until the end of the Lease Term, are hereby charged with
notice that they look exclusively to Lessee to obtain payment for same.
20. RIGHT TO INSPECT AND REPAIR. Lessor 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 Lessee (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 Lessor deems necessary or desirable. Lessee shall
have no claims or cause of action against Lessor by reason thereof.
21. SERVICES TO BE PROVIDED BY LESSOR. Subject to intervening laws,
ordinances, regulations and executive orders, while Lessee is not in default
under any of the provisions of this Lease, Lessor agrees to furnish, on
"Business Days," as hereinafter defined:
(A) Janitorial services to be performed in accordance with
Building standards and practices, to include restroom supplies.
(B) Heating, ventilating and air conditioning (herein "HVAC"),
as appropriate for the season, together with Common Facilities lighting
and electric energy all during "Building Hours," as hereinafter
defined.
(C) Cold and hot water for drinking and lavatory purposes.
(D) Elevator service during Building Hours.
(E) Notwithstanding any other provision of this Lease, Lessor
shall not be liable for failure to furnish any of the aforesaid
services when such failure is due to Force Majeure, as hereinafter
defined.
22. AFTER-HOURS USE. Lessee shall be entitled to make use of HVAC beyond
Building Hours, at Lessee's sole cost and expense, provided Lessee shall notify
the Lessor twenty-four (24) hours prior to such desired overtime use, except if
such use is desired for a weekend, in which event Lessee shall notify Lessor no
later than 5:00 p.m. on the Thursday immediately preceding said weekend. It is
understood and agreed that Lessee shall pay the
17
sum of Eighty-five and 00/100 ($85.00) Dollars per hour, plus such additional
percentage increase of the aforesaid hourly sum computed by measuring the
percentage increase of the rate in effect (including fuel surcharges or
adjustments) during the month for which such overtime use is requested against
the Base Utility Rate, as defined on the Reference Page.
In no event shall the Lessee pay less than the sum of Eighty-five and
00/100 ($85.00) Dollars per hour for such aforesaid overtime use.
23. INTERRUPTION OF SERVICES OR USE. Interruption or curtailment of any
service maintained in the Building or the Complex or at the Parcel, if caused by
Force Majeure, as hereinafter defined, shall not entitle Lessee to any claim
against Lessor or to any abatement in Term Fixed Basic Rent or Additional Rent,
and shall not constitute a constructive or partial eviction, unless Lessor fails
to take measures as may be reasonable under the circumstances to restore the
service. If Lessor fails to take such measures as may be reasonable under the
circumstances to restore the curtailed service, Lessee's remedies shall be
limited to an equitable abatement of Term Fixed Basic Rent and Additional Rent
for the duration of the curtailment beyond said reasonable period, to the extent
such Premises are not reasonably usable by Lessee or to a claim of constructive
eviction. If the Premises are rendered untenantable in whole or in part, for a
period of ten (10) consecutive business days, by the making of repairs,
replacements or additions, other than those made with Lessee's consent or caused
by misuse or neglect by Lessee, or Lessee's agents, servants, visitors or
licensees, there shall be a proportionate abatement of Term Fixed Basic Rent and
Additional Rent from and after said tenth (10th) consecutive business day and
continuing for the period of such untenantability. In no event shall Lessee be
entitled to claim a constructive eviction from the Premises unless Lessee shall
first have notified Lessor in writing of the condition or conditions giving rise
thereto, and, if the complaints be justified, unless Lessor shall have failed,
within a reasonable time after receipt of such notice, to remedy, or commence
and proceed with due diligence to remedy, such condition or conditions, all
subject to Force Majeure, as hereinafter defined. The remedies provided for in
this Section 23 shall be Lessee's sole remedies for any interruption of services
or use as described above.
24. ELECTRICITY. (A) Lessor, subject to the provisions of this Section 24,
shall furnish electrical energy to or for the use of Lessee in the Premises in
accordance with this Section 24.
(B) Throughout the Term, Lessor shall redistribute electrical
energy to the Premises during Building Hours upon the following terms and
conditions: (i) Lessee shall pay for such electrical energy as provided by this
Section 24; (ii) Lessor will redistribute electricity to Lessee through
presently installed electrical facilities for Lessee's reasonable use of normal
office equipment and such lighting, electrical appliances
18
and equipment as Lessor may permit to be installed in the Premises, all
consistent with that wiring capacity that has been installed in the Premises;
(iii) Lessee agrees that an independent electrical engineering consultant
selected by Lessor shall from time to time make a survey of the electric power
demand of the electric lighting fixtures and the electric equipment of Lessee
used in the Premises to determine the average monthly electric consumption
thereof, said survey to be at Lessee's expense. Lessor reserves the right to
estimate Lessee's electric consumption until such a survey is made. The estimate
will be based on One and 00/100 ($1.00) Dollar per square foot per year of the
rentable area of the Premises and Lessee agrees that the Annual Fixed Basic
Rent, as defined on the Reference Page, has been increased to compensate Lessor
for supplying Lessee with electric current by an estimated Electric Rent
Inclusion Factor as defined on the Reference Page. The aforesaid survey shall
take into account, among other things, any special electrical requirements of
Lessee and use by Lessee of electrical energy at times other than during
Building Hours on Business Days. The findings of such engineer or consultant as
to the proper Electric Rent Inclusion Factor based on such average monthly
electric consumption shall be conclusive and binding upon the parties and the
amount thereof, less the Electric Rent Inclusion Factor, if in excess of the
Electric Rent Inclusion Factor, shall be added to the Annual Fixed Basic Rent
which shall be payable in installments of Monthly Fixed Basic Rent, payable for
each month from the Commencement Date or if the amount thereof shall be lower
than the Electric Rent Inclusion Factor, the difference therein shall be
subtracted from the Annual Fixed Basic Rent and the resulting sum shall be the
revised Annual Fixed Basic Rent which shall be payable in installments of
Monthly Fixed Basic Rent (except that if the amount of such rent increase or
decrease shall not have been determined on the Commencement Date, then, upon
such subsequent determination, Lessee shall pay or receive a credit, as the case
may be, for the retroactive determination from the Commencement Date to the date
of such determination); (iv) If the Electric Rates (as hereinafter defined) on
which the initial determination of said consultant was based shall be increased
or decreased, then the Annual Fixed Basic Rent shall be increased or decreased
in the amount equal to the change in Lessor's cost of supplying electrical
current to the Premises resulting from such rate change, retroactive if
necessary to the date of such increase or decrease in such Electric Rates. The
Term Fixed Basic Rent, as defined on the Reference Page, shall be deemed
modified accordingly by any of the aforesaid modifications.
(C) Lessee shall make no alterations or additions to the
electric equipment appliances without first obtaining written consent from
Lessor in each instance. If Lessee installs additional or substituted electrical
equipment or appliances or otherwise increases its use of current, then the
Electric Rent Inclusion Factor shall be redetermined by Lessor's electrical
engineer or consultant, at Lessee's expense, and such determination shall be
conclusive and binding upon Lessor and Lessee. Lessee may at any time it
believes any change in its
19
electrical equipment or appliances or fixtures has reduced its electrical
consumption request a resurvey of the Premises by Lessor's electrical engineer
or consultant, at Lessee's expense. Any change in the Electric Rent Inclusion
Factor resulting from a change in Lessee's consumption shall be effective as of
the date of such change, and the Term Fixed Basic Rent enumerated herein shall
be deemed modified accordingly, retroactive if necessary.
(D) Lessor shall not be liable in any way to Lessee for any
loss, damage or expense which Lessee may sustain or incur as a result of any
failure, defect or change in the quantity or character of electrical energy
available for redistribution to the Premises pursuant to this Section nor for
any interruption in the supply, and Lessee agrees that such supply may be
interrupted for inspection, repairs and replacement and in emergencies. In any
event, the full measure of Lessor's liability for any interruption in the supply
due to Lessor's acts or omissions shall be an abatement of Term Fixed Basic Rent
and Additional Rent. In no event shall Lessor be liable for any business
interruption suffered by Lessee. Lessee covenants and agrees that at all times
its use of electric current shall never exceed the capacity of existing feeders
to the Building or the risers or wiring installation. Any riser or risers to
supply Lessee's electrical requirements, upon written request of Lessee, shall
be installed by Lessor, at the sole cost and expense of Lessee, if, in Lessor's
sole judgment, the same are necessary and will not cause or create a dangerous
or hazardous condition or entail excessive or unreasonable alterations, repairs
or expense or interfere with or disturb other tenants or occupants. In addition
to the installation of such riser or risers, Lessor shall also, at the sole cost
and expense of Lessee, install all other equipment proper and necessary in
connection therewith subject to the aforesaid terms and conditions.
(E) Lessor reserves the right to terminate the redistribution
of electricity to the Premises at any time, upon thirty (30) days' written
notice to Lessee, in which event Lessee may make application directly to the
utility company servicing the Building for Lessee's entire separate supply of
electricity. Lessor, upon the expiration of the aforesaid thirty (30) day
period, may discontinue furnishing the electric current, in which latter event
Lessee's Annual Fixed Basic Rent shall be decreased by the charge for Electric
Rent Inclusion Factor as of the date of discontinuance of the supplying of
electric current, but this Lease shall otherwise remain in full force and
effect. The term "Electric Rates" shall be deemed to mean the rates for the
comparable usage charged by the public utility company furnishing electrical
energy to the Building, including but not limited to any charges or surcharges
incurred or taxes payable by Lessor in connection therewith or increase or
decrease thereof by reason of fuel adjustment or any substitutions for such
Electric Rates or additions thereto.
(F) If Lessor discontinues the furnishing of electricity, as
provided in this Section 24, then, and in such
20
event, Lessor shall permit Lessee to receive electrical service directly from
the public utility supplying electrical service to the Building and shall permit
the existing feeders, risers, wiring and other electrical facilities serving the
Premises to be used by Lessee for such purpose to the extent that they are
available, suitable and safe. Lessee shall, at its own expense, install any
necessary electrical meter equipment, panel boards, feeders, risers, wiring and
other conductor and equipment which may be required to obtain electrical energy
directly from the public utility supplying the same. Lessor shall have no
liability whatsoever to Lessee by reason of Lessor's discontinuance of
electrical service.
(G) Lessor, at Lessee's expense, shall furnish and install all
lamps (including incandescent and fluorescent), starters and ballasts used in
the Premises.
(H) Following a determination of an increase or decrease in
the Electric Rent Inclusion Factor attributable to the furnishing of electrical
energy to the Premises by Lessor as set forth in this Section 24, Lessor and
Lessee shall, upon request of either party, execute, acknowledge and deliver to
each other a supplemental agreement in form satisfactory to Lessor reflecting
such change in the Annual Fixed Basic Rent and Monthly Installment of Term Fixed
Basic Rent, but any such change shall be effective whether or not such agreement
is entered into.
(I) In addition to payments of the Electric Rent Inclusion
Factor, if Lessee makes use of electric current on non-Business Days or after
Building Hours, then Lessee shall pay to Lessor, as Additional Rent, Lessor's
cost of supplying electrical current to the Premises at all such times when
electrical current is so used. Such charge shall be made on a per hour (or any
portion thereof) basis determined by the hourly cost of supplying electrical
current to the Premises or such portions of the Building as must be supplied to
provide electric current to the Premises; provided, however, that Lessee shall
not be required under this Section to pay for use of electrical current which
shall have previously been included in a survey of Lessee's use of electrical
current pursuant to Subsection 24(B) above.
(J) Notwithstanding anything contained herein to the contrary,
Lessor reserves the right, at Lessor's cost and expense, to install a separate
meter to measure electrical consumption to the Premises for lighting and
equipment purposes, in which event Lessee shall pay the meter charges based upon
the Electric Rates for said consumption in lieu of the amount determined
pursuant to Subsection 24(B) hereof, in which event Lessee's Annual Fixed Basic
Rent shall be decreased by the charge for Electric Rent Inclusion Factor as of
the date of installation of the meter.
25. ADDITIONAL RENT. It is expressly agreed that Lessee will pay in
addition to the Term Fixed Basic Rent provided in
21
Section 3 above, an Additional Rent to cover Lessee's Percentage, as defined on
the Reference Page, of the increased cost to Lessor, for each of the categories
enumerated herein, over the "Base Period Costs," as defined on the Reference
Page, for said categories.
(A) Operating Cost Escalation. If during the Lease Term the
Operating Costs incurred for the Building in which the Demised Premises
are located, Complex and Parcel, for any Lease Year or proportionate
part thereof if the Lease Term expires prior to the expiration of a
Lease Year (herein the "Comparison Period") shall be greater than the
Base Operating Costs (adjusted proportionately if the Comparison Period
is less than a Lease Year), then Lessee shall pay to Lessor, as
Additional Rent, Lessee's Percentage of all such excess Operating
Costs. Operating Costs shall include, by way of illustration and not of
limitation: personal property taxes; management fees; labor, including
all wages and salaries; social security taxes, and other taxes which
may be levied against Lessor upon such wages and salaries; employee
benefits and payroll taxes; accounting and legal fees; any sales, use
or service taxes incurred in connection with the operation of the
Complex or Parcel; supplies; repairs and maintenance; maintenance and
service contracts; the cost of security and alarm services; license
permits and inspection fees; painting; wall and window washing; laundry
and towel service; tools and equipment (which are not required to be
capitalized for Federal income tax purposes); fire and other insurance;
trash removal; lawn care; snow removal and all other items properly
constituting direct operating costs according to standard accounting
practices (hereinafter collectively referred to as the "Operating
Costs"). Lessor shall be entitled to amortize and include in Operating
Costs an allocable portion of the cost of capital improvement items,
including life safety systems, which are reasonably calculated to
reduce operating expenses or which are required under any governmental
laws, regulations or ordinances which were not applicable to the
Building or Complex or Parcel at the time it was constructed. All such
costs shall be amortized over the reasonable life of such improvements
with interest at two (2%) percent over the prime lending rate announced
as such by Chase Manhattan Bank to its most creditworthy borrowers on
the unamortized amount in accordance with such reasonable life and
amortization schedules as shall be determined by Lessor in accordance
with generally accepted accounting principles. As used in this
Subsection 25(A), the Base Period Costs for Operating Costs shall be as
defined on the Reference Page.
(B) Fuel, Utilities and Electric Cost Escalation
22
(hereinafter "Utility and Energy Costs"). If during the Lease Term the
Utility and Energy Costs, including any fuel surcharges or adjustments
with respect thereto, incurred for water, sewer, other utilities and
heating, ventilating and air conditioning for the Building, Complex
and Parcel to include all leased and leasable areas (not separately
billed or metered within the Building) and Common Facilities electric,
lighting, water, sewer and other utilities for the Building, the
Complex and Parcel, for any Comparison Period shall be greater than
the Base Utility and Energy Costs (adjusted proportionately if the
Comparison Period is less than a Lease Year), then Lessee shall pay to
Lessor as Additional Rent, Lessee's Percentage of all such excess
Utility and Energy Costs. Common Facilities electric consumption shall
be charged at the bulk rate at which Lessor purchases electrical
energy from the public utility supplying electrical service to the
Building. As used in this Subsection 25(B), the Base Utility and
Energy Costs shall be as defined on the Reference Page.
(C) Tax Escalation. If during the Lease Term the Real Estate
Taxes for the Building, the Complex and Parcel at which the Demised
Premises are located for any Comparison Period shall be greater than
the Base Real Estate Taxes (adjusted proportionately if the Comparison
Period is less than a Lease Year), then Lessee shall pay to Lessor as
Additional Rent, Lessee's Percentage of all such excess Real Estate
Taxes.
As used in this Subsection 25(C), the words and terms which
follow mean and include the following:
(i) The Base Period Costs for "Real Estate Taxes" shall be as
defined on the Reference Page.
(ii) "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building, the Complex and Parcel, or upon
the Term Fixed Basic Rent and Additional Rent, as such, payable to the
Lessor including, but not limited to, real estate, city, county,
village, school and transit taxes, or taxes, assessments or charges
levied, imposed or assessed against the Building and Complex by any
other taxing authority, whether general or specific, ordinary or
extraordinary, foreseen or unforeseen. If due to a future change in
the method of taxation, any franchise, income or profit tax shall be
levied against Lessor 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 a Real
Estate Tax for the purposes hereof; conversely, any additional real
estate tax hereafter imposed in substitution for, or in lieu
23
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. Notwithstanding anything contained herein to the
contrary, Lessee shall assume and pay to Lessor in full at the time of
paying the Term Fixed Basic Rent, any excise, sales, use, gross
receipts or other taxes (other than a net income or excess profits
tax) which may be imposed on or measured by such Term Fixed Basic Rent
or Additional Rent or may be imposed on Lessor or on account of the
letting or which Lessor may be required to pay or collect under any
law now in effect or hereafter enacted.
(D) Lease Year. As used in this Lease, Lease Year shall mean the
twelve (12) month period commencing on the Commencement Date and each
twelve (12) month period thereafter. Once the base costs are
established, in the event any lease period is less than twelve (12)
months, then the Base Period Costs for the categories listed above
shall be adjusted to equal the proportion that said period bears to
twelve (12) months, and Lessee shall pay to Lessor as Additional Rent
for such period, an amount equal to Lessee's Percentage of the excess
for said period over the adjusted base with respect to each of the
aforesaid categories. Notwithstanding anything contained herein to the
contrary, once the base costs are established, Lessor reserves the
right to calendarize billing and payment in order to establish
operating consistency.
(E) Payment. At any time, and from time to time, after the
establishment of the Base Period Costs for each of the categories
referred to above, Lessor shall advise the Lessee in writing of
Lessee's Percentage, as defined on the Reference Page, with respect to
each of the categories as estimated for the current Lease Year [and
for each succeeding Lease Year 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 Lessor, and thereafter, the Lessee shall
pay as Additional Rent, Lessee's Percentage of the excess of these
costs over the Base Period Costs for the then current period affected
by such advice (as the same may be periodically revised by Lessor as
additional costs are incurred) in equal monthly installments on the
first day of each month, such new rates being applied to any months
for which the installments of Monthly Fixed Basic Rent 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
24
made at the payment of the next succeeding installment of Monthly
Fixed Basic Rent, all subject to final adjustment at the expiration of
each Lease Year as defined in Subsection 25(D) hereof [or
proportionate part thereof, if the last period prior to the Lease's
termination is less than twelve (12) months]. In the event the last
period prior to the Lease's termination is less than twelve (12)
months, the Base Period Costs during said period shall be
proportionately reduced to correspond to the duration of said final
period.
(F) Books and Records. For the protection of Lessee, Lessor shall
maintain books of account which shall be open to Lessee and its
representatives at all reasonable times so that Lessee can determine
that such Operating, Utility, Energy and Tax Costs have, in fact, been
paid or incurred. Any disagreement with respect to any one or more of
said charges if not satisfactorily settled between Lessor and Lessee
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. Pending resolution of said
dispute, the Lessee shall pay to Lessor the sum so billed by Lessor
subject to its ultimate resolution as aforesaid.
(G) Right of Review. Once Lessor shall have finally determined
said Operating, Utility and Energy or Tax Costs at the expiration of a
Lease Year, then, as to the item so established, Lessee shall only be
entitled to dispute said charge as finally established for a period of
six (6) months after such charge is finally established, and Lessee
specifically waives any right to dispute any such charge at the
expiration of said six (6) month period.
(H) Occupancy Adjustment. If, with respect to Operating Cost
Escalation, as established in Subsection 25(A) hereof, and Utility and
Energy Cost Escalation, as established in Subsection 25(B) hereof, the
Building is not ninety-five (95%) percent occupied during the
establishment of the respective Base Period Costs, then the Base
Period Costs incurred with respect to said Operating Cost or Utility
and Energy Cost shall be adjusted during any such period so as to
reflect ninety-five (95%) percent occupancy. Similarly, if, during any
Lease Year or proportionate part thereof subsequent to the
establishment of the respective Base Period Costs the Building is less
than ninety-five (95%) percent occupied, then the actual costs
incurred for Operating Cost and Utility and Energy Cost shall be
25
increased during any such period to reflect ninety-five (95%) percent
occupancy so that at all times after the establishment of the
aforesaid Base Period Costs, the Utility and Energy Cost and Operating
Cost shall be actual costs, but in the event less than ninety-five
(95%) percent of the Building is occupied during all or part of the
Lease Year involved, the Utility and Energy Cost and Operating Cost
shall not be less than that which would have been incurred had
ninety-five (95%) percent of the Building been occupied. The aforesaid
adjustment shall only be made with respect to those items that are in
fact affected by variations in occupancy levels. To the extent any
Operating Cost or Utility and Energy Cost is separately billed or
metered or paid for directly by any Building tenant, to include but
not be limited to Lessee, or for which Lessor receives reimbursements,
said space shall be considered vacant space for purposes of the
aforesaid adjustment.
26. LESSEE'S ESTOPPEL. (A) Lessee shall, from time to time, within ten
(10) days of Lessor's written request, execute, acknowledge and deliver to
Lessor a written statement certifying 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 dates to which the Monthly Fixed
Basic Rent and Additional Rent and charges have been paid; and, to the best of
Lessee's knowledge, whether or not Lessor is in default hereunder, and if so,
specifying the nature of the default; and any other information which Lessor
shall reasonably request. It is intended that any such statement delivered
pursuant to this Section 26 may be relied on by a prospective purchaser of
Lessor's interest or mortgagee of Lessor's interest or assignee of any mortgage
of Lessor's interest.
(B) Lessee's failure to deliver such statement within five (5)
business days following notice from Lessor of Lessee's failure to do so pursuant
to Subsection 26(A) shall be conclusive upon Lessee that: (i) this Lease is in
full force and effect and not modified except as Lessor may represent; (ii) not
more than one (1) installment of Monthly Fixed Basic Rent has been paid in
advance; (iii) there are no such defaults; and (iv) notices to Lessee shall be
sent to Lessee's mailing address as set forth in this Lease. Notwithstanding the
presumptions of this Section, Lessee shall not be relieved of its obligation to
deliver said statement.
27. HOLDOVER TENANCY. If Lessee holds possession of the Premises after
the Term of this Lease, Lessee shall become a tenant from month to month under
the provisions herein provided, but at a Monthly Fixed Basic Rent of one hundred
fifty (150%) percent of the Monthly Fixed Basic Rent for the last month of the
Term (as the same may have been extended pursuant to any option) and without the
requirement for demand or notice by Lessor to Lessee demanding delivery of
possession of said Premises (but
26
Additional Rent shall continue as provided in this Lease), which sum shall be
payable in advance on the first day of each month, and such tenancy shall
continue until terminated by Lessor, or until Lessee shall have given to Lessor,
at least sixty (60) days prior to the intended date of termination, a written
notice of intent to terminate such tenancy, which termination date must be as of
the end of a calendar month. Lessee shall pay Term Fixed Basic Rent and
Additional Rent until such alterations and corrections as are required to be
made by Lessee are made, and until such additions and improvements as Lessee is
entitled to remove have been removed. Lessee shall also pay all damages
sustained by Lessor from any loss or liability resulting from such holding over
and delay in surrender. The time limitations described in this Section 27 shall
not be subject to extension for Force Majeure.
28. RIGHT TO SHOW PREMISES. Lessor may show the Premises to prospective
purchasers and mortgagees; and, during the six (6) months prior to termination
of this Lease, to prospective tenants, during Building Hours on reasonable
notice to Lessee.
29. CONDITION OF PREMISES. Lessee hereby acknowledges to Lessor that during
the Term hereof, Lessee is leasing the Premises in its "AS IS" condition. Lessor
shall cause to be performed any alterations to the Premises which are requested
by Lessee within the first three (3) months of the Term (the "Work"). Lessor
shall estimate the cost of the Work (without overhead, profit or interest) and
Lessee shall pay, upon receipt of an invoice therefor and prior to the
performance of the Work, the full amount of such estimate. Any cost of the Work
in excess of the cost estimated by Lessor shall be paid in full by Lessee, as
Additional Rent, within ten (10) days following receipt by Lessee of an invoice
from Lessor. Lessor agrees, upon request by Lessee, to provide Lessee with
evidence of the cost of the Work by means of either third-party invoices or
other reasonable means of independent verification.
30. 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.
31. LATE CHARGE. Lessee recognizes that late payment of any Term Fixed
Basic Rent or Additional Rent or other sum due hereunder will result in
administrative expense to Lessor, the extent of which additional expense is
extremely difficult and economically impractical to ascertain. Lessee therefore
agrees that if Monthly Fixed Basic Rent or Additional Rent or any other sum is
due and payable pursuant to this Lease, and such amount remains due and unpaid
ten (10) days after said amount is due, such amount shall be increased by a late
charge in an amount equal to the greater of: (a) Fifty and 00/100 ($50.00)
Dollars; or (b) a sum equal to five (5%) percent of the unpaid Monthly Fixed
Basic Rent or Additional Rent or other payment. The amount of the late charge to
be paid by Lessee shall be reassessed and
27
added to Lessee's obligation for each successive monthly period until paid. The
provisions of this Section 31 in no way relieve Lessee of the obligation to pay
Term Fixed Basic Rent or Additional Rent or other payment on or before the date
on which they are due nor do the terms of this Section 31 in any way affect
Lessor's remedies pursuant to Section 14 in the event said Term Fixed Basic Rent
or Additional Rent or other payment is unpaid after date due.
32. INSURANCE.
(A) Lessee's Insurance.
(1) Lessee covenants and represents, said representation being
specifically designed to induce Lessor to execute this Lease, that
during the entire Term hereof, at its sole cost and expense, Lessee
shall obtain, maintain and keep in full force and effect the following
insurance:
(a) "All Risk" property insurance against fire, theft, vandalism,
malicious mischief, sprinkler, leakage and such additional perils as
are now, or hereafter may be, included in a standard extended coverage
endorsement from time to time in general use in the State of New
Jersey upon property of every description and kind owned by Lessee or
under Lessee's care, custody or control and located in the Building,
Complex or Parcel or for which Lessee is legally liable or installed
by or on behalf of Lessee, including by way of example and not by way
of limitation, furniture, fixtures, fittings, installations and any
other personal property in an amount equal to the full replacement
cost thereof.
(b) Comprehensive General Liability Insurance coverage to include
personal injury, bodily injury, broad form property damage, operations
hazard, owner's protective coverage, contractual liability, products
and completed operations liability naming Lessor and Lessor's
mortgagee or trust deed holder and ground lessors (if any) as
additional named insureds in limits of not less than One Million and
00/100 ($1,000,000.00) Dollars.
(c) Business interruption insurance in such amounts as will
reimburse Lessee for direct or indirect loss of earnings attributable
to all perils commonly insured against by prudent tenants or assumed
by Lessee pursuant to this Lease or attributable to prevention or
denial of access to the Premises, Building, Complex or Parcel as a
result of such perils.
(d) Workers' Compensation insurance in form and amount as
required by law.
28
(e) Business auto liability covering owned, non-owned and hired
vehicles with a limit of not less than One Million and 00/100
($1,000,000.00) Dollars per accident.
(f) Any other form or forms of insurance or any increase in the
limits of any of the aforesaid enumerated coverages or other forms of
insurance as Lessor or the mortgagees or ground lessors (if any) of
Lessor may reasonably require from time to time if in the reasonable
opinion of Lessor or said mortgagees or ground lessors said coverage
and/or limits become inadequate or less than that commonly maintained
by prudent tenants in similar buildings in the area by tenants making
similar uses.
(2) All insurance policies required pursuant to this Section 32
shall be taken out with insurers rated at least A+XV by A.M. Best
Company, Oldwick, New Jersey, who are licensed to do business in the
State and shall be in form satisfactory from time to time to Lessor. A
policy or certificate evidencing such insurance together with a paid
xxxx shall be delivered to Lessor not less than fifteen (15) days
prior to the commencement of the Term hereof. Such insurance policy or
certificate will provide an undertaking by the insurers to notify
Lessor and the mortgagees or ground lessors (if any) of Lessor in
writing not less than thirty (30) days prior to any material change,
reduction in coverage, cancellation, or other termination thereof.
Should a certificate of insurance initially be provided a policy shall
be furnished by Lessee within thirty (30) days of the Term's
commencement. The aforesaid insurance shall be written with no
deductible.
(3) In the event of damage to or destruction of the Building
and/or Premises entitling Lessor or Lessee to terminate this Lease
pursuant to Section 10 hereof, and if this Lease be so terminated,
Lessee will immediately pay to Lessor all of its insurance proceeds,
if any, relating to the leasehold improvements and alterations (but
not Lessee's trade fixtures, equipment, furniture or other personal
property of Lessee in the Premises) which have become Lessor's
property on installation or would have become Lessor's property at the
Term's expiration or sooner termination. If the termination of the
Lease, at Lessor's election, is due to damage to the Building, and if
the Premises have not been so damaged, Lessee will deliver to Lessor,
in accordance with the provisions of this Lease, the improvements and
alterations to the Premises which have become on installation or would
have become at the Term's expiration, Lessor's property.
29
(4) Lessee agrees that it will not keep or use or offer for sale
(if sales of goods is a permitted use pursuant to Section 4 hereof) in
or upon the Premises or within the Building, Complex or Parcel, any
article which may be prohibited by any insurance policy in force from
time to time covering the Building, Complex or Parcel. In the event
Lessee's occupancy or conduct of business in or on the Premises,
Building, Complex or Parcel, whether or not Lessor has consented to
the same, results in any increase in premiums for insurance carried
from time to time by Lessor with respect to the Building, Complex or
Parcel, Lessee shall pay such increase in premiums as Additional Rent
within ten (10) days after being billed therefor by Lessor. In
determining whether increased premiums are a result of Lessee's use
and occupancy, a schedule issued by the organization computing the
insurance rate on the Building, Complex or Parcel showing the
components of such rate shall be conclusive evidence of the items and
charges making up such rate. Lessee shall promptly comply with all
reasonable requirements of the insurance authority or of any insurer
now or hereafter in effect relating to the Premises, Building, Complex
or Parcel.
(5) If any insurance policy carried by either party as required
by this Section 32 shall be cancelled or cancellation shall be
threatened or the coverage thereunder reduced or threatened to be
reduced in any way by reason of the use or occupation of the Premises,
Building, Complex or Parcel or any part thereof by Lessee or any
assignee or sublessee of Lessee or anyone permitted by Lessee to be
upon the Premises, and if Lessee fails to remedy the conditions giving
rise to said cancellation or threatened cancellation or reduction in
coverage on or before the earlier of (i) forty-eight (48) hours after
notice thereof from Lessor, or (ii) prior to said cancellation or
reduction becoming effective, Lessee shall be in default hereunder and
Lessor shall have all of the remedies available to Lessor pursuant to
this Lease.
(B) Lessor's Insurance. Lessor covenants and agrees that throughout the
Term it will insure the Building [excluding any property with respect to which
Lessee is obligated to insure pursuant to Subsection 32(A)(1)(a) above] against
damage by fire and standard extended coverage perils and public liability
insurance in such reasonable amounts with such reasonable deductibles as
required by any mortgagee or ground lessor, or if none, as would be carried by a
prudent owner of a similar building in the area. In addition, Lessor shall
maintain and keep in force and effect during the Term, rental income insurance
insuring Lessor against abatement or loss of Term Fixed Basic Rent, including
items of Additional Rent, in case of fire or
30
other casualty similarly insured against, in an amount at least equal to the
Term Fixed Basic Rent and Additional Rent during, at the minimum, one (1) Lease
Year hereunder. Lessor may, but shall not be obligated to, take out and carry
any other forms of insurance as it or the mortgagee or ground lessor (if any) of
Lessor may require or reasonably determine available. All insurance carried by
Lessor on the Building, Complex or Parcel shall be included as an Operating Cost
pursuant to Subsection 25(A). Notwithstanding its inclusion as an Operating Cost
or any contribution by Lessee to the cost of insurance premiums by Lessee as
provided herein, Lessee acknowledges that it has no right to receive any
proceeds from any such insurance policies carried by Lessor. Lessee further
acknowledges that the exculpatory provisions of this Lease as set forth in
Section 39 and the provisions of this Section 32 as to Lessee's insurance are
designed to insure adequate coverage as to Lessee's property and business
without regard to fault and avoid Lessor obtaining similar coverage for said
loss for its negligence or that of its agents, servants or employees which could
result in additional costs includable as part of Operating Costs which are
payable by Lessee. Lessor will not carry insurance of any kind on Lessee's
furniture or furnishings, or on any fixtures, equipment, appurtenances or
improvements of Lessee under this Lease and Lessor shall not be obligated to
repair any damage thereto or replace the same.
(C) Waiver of Subrogation. Any policy or policies of fire,
extended coverage or similar casualty insurance, which either party obtains in
connection with the Premises, Building, Complex or Parcel shall include a clause
or endorsement denying the insurer any rights of subrogation against the other
party (i.e. Lessor or Lessee) for all perils covered by said policy. Should such
waiver not be available, then the policy for which the waiver is not available
must name the other party as an additional named insured affording it the same
coverage as that provided the party obtaining said coverage.
33. 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).
34. QUIET ENJOYMENT. Lessor covenants that if, and so long as, Lessee pays
the Term Fixed Basic Rent and any Additional Rent as herein provided, and
performs the covenants hereof, Lessor shall do nothing to affect Lessee's right
to peaceably and quietly have, hold and enjoy the Premises for the Term herein
mentioned, subject to the provisions of this Lease and to any mortgage or deed
of trust to which this Lease shall be subordinate.
35. INDEMNITY. Lessee shall indemnify and save harmless Lessor and its
agents against and from (a) any and all claims (i) arising from (x) the conduct
or management by Lessee, its
31
subtenants, licensees, its or their employees, agents, contractors or invitees
on the Demised Premises or of any business therein, or (y) any work or thing
whatsoever done, or any condition created (other than by Lessor for Lessor's or
Lessee's account) in or about the Demised Premises during the Term of this Lease
or during the period of time, if any, prior to the Commencement Date that Lessee
may have been given access to the Demised Premises, or (ii) arising from any
negligent or otherwise wrongful act or omission of Lessee or any of its
subtenants or licensees or its or their employees, agents, contractors or
invitees, and (b) all costs, expenses and liabilities incurred in or in
connection with each such claim or action or proceeding brought thereon. In case
any action or proceeding be brought against Lessor by reason of any such claim,
Lessee, upon notice from Lessor, shall resist and defend such action or
proceeding. The provisions of this Section 35 shall survive the expiration or
sooner termination of this Lease.
36. RULES OF CONSTRUCTION/APPLICABLE LAW. Any table of contents,
captions, headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. This Lease shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. If any words or phrases in this
Lease shall have been stricken out or otherwise eliminated, whether or not any
other words or phrases have been added, this Lease shall be construed as if the
words or phrases so stricken out or otherwise eliminated were never included in
this Lease no implication or inference shall be drawn from the fact that said
words or phrases were so stricken out or otherwise eliminated. Each covenant,
agreement, obligation or other provision of this Lease on Lessee's part to be
performed, shall be deemed and construed as a separate and independent covenant
of Lessee, not dependent on any other provision of this Lease. All terms and
words used in this Lease, regardless of the number or gender in which they are
used, shall be deemed to include any other number and any other gender as the
context may require. This Lease shall be governed and construed in accordance
with the laws of the State of New Jersey (excluding New Jersey conflict of laws)
and by the State courts of New Jersey. If any of the provisions of this Lease,
or the application thereof to any person or circumstances, shall to any extent
be invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
37. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease
shall apply to, bind and inure to the benefit of Lessor and Lessee, and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Lessor" as used in this Lease means only the owner, a
mortgagee in possession or a term lessee of the Building, so that in the
32
event of any sale of the Building or of any lease thereof, or if a mortgagee
shall take possession of the Premises, the Lessor named herein shall be and
hereby is entirely freed and relieved of all covenants and obligations of Lessor
hereunder accruing thereafter, and it shall be deemed without further agreement
that the purchaser, the term lessee of the Building, or the mortgagee in
possession has assumed and agreed to carry out any and all covenants and
obligations of Lessor hereunder.
38. PARKING. Lessor agrees that Lessee, its employees, agents,
permitted subtenants, customers and invitees shall be entitled, in the
aggregate, to the use of those parking spaces as enumerated on the Reference
Page, from time to time, as, when and where available in the parking areas
appurtenant to the Building. Lessor hereby expressly reserves the right, from
time to time, to change the area, level, location and arrangement of the parking
areas; to build multi-story parking facilities; to restrict parking by tenants
and to the occupants of the Building and their employees, agents, permitted
subtenants, customers and invitees; to enforce parking charges (by operation of
meters or otherwise); and to close temporarily all or any portion of the parking
areas or other common areas for the purpose of making repairs or changes thereto
and to discourage non-customer parking. If any vehicle of Lessee, or of any
subtenant, licensee, or concessionaire, or of their respective officers, agents
or employees, is parked in any part of the Common Facilities other than the
employee parking area(s) designated therefor by Lessor, Lessee shall pay to
Lessor such reasonable penalty as may be fixed by Lessor from time to time. All
amounts due under the provisions of this Section shall be deemed to be
Additional Rent. Lessee agrees promptly to execute Lessor's standard parking
agreement if, as and when promulgated by Lessor for use in connection with the
Building, provided that Lessee shall have been provided with a copy of such
agreement. Notwithstanding anything contained herein to the contrary, it is
understood and agreed that a gate-controlled area is utilized for covered
parking spaces. The spaces within said covered area shall not be specifically
assigned on an individual basis and those spaces enumerated on the Reference
Page as being covered shall be undercover but not specifically earmarked for
Lessee, said spaces to be available on a first come first serve basis to all
those entitled to covered spaces who have been assigned spaces within said area.
The total spaces available within said area shall equal the total number of
people with access to said area. Nothing contained herein shall be deemed to
impose any obligation on Lessor to police the parking area.
39. LESSOR'S EXCULPATION. Lessor shall not be liable to Lessee for any
property damage or business interruption loss or loss of profit suffered by
Lessee under any circumstances, including, but not limited to (i) that arising
from the negligence of Lessor, its agents, servants, invitees, contractors or
subcontractors, or from defects, errors or omissions in the construction or
design of the Premises and/or the Building and/or the Complex and/or the Parcel
including the structural and
33
nonstructural portions thereof; or (ii) for loss of or injury to Lessee or to
Lessee's property or that for which Lessee is legally liable from any cause
whatsoever, including but not limited to theft or burglary; or (iii) for that
which results from or is incidental to the furnishing of or failure to furnish
or the interruption in connection with the furnishing of any service which
Lessor is obligated to furnish pursuant to this Lease; or (iv) for that which
results from any inspection, repair, alteration or addition or the failure
thereof undertaken or failed to be undertaken by Lessor; or (v) for any
interruption to Lessee's business, however occurring. The aforesaid exculpatory
Section is to induce the Lessor, in its judgment, to avoid or minimize covering
risks which are better quantified and covered by Lessee either through insurance
(or self-insurance or combinations thereof if specifically permitted pursuant to
this Lease), thereby permitting potential cost savings in connection with the
Operating Costs borne by Lessee pursuant to Section 25.
40. COMMISSION. Lessee and Lessor represent and warrant one to the other
that the Brokers, as defined on the Reference Page, are the sole brokers with
whom either party has negotiated in bringing about this Lease and Lessee and
Lessor agree to indemnify and hold each other and Lessor's mortgagee(s) harmless
from any and all claims of other brokers and expenses in connection therewith
arising out of or in connection with any conduct inconsistent with the
representations tendered by one to the other herein. In no event shall Lessor's
mortgagee(s) have any obligation to any broker involved in this transaction. In
the event that no broker was involved as aforesaid, then Lessee and Lessor
represent and warrant one to the other that no broker brought about this
transaction, and Lessee and Lessor agree to indemnify and hold each other
harmless from any and all claims of any brokers arising out of or in connection
with any conduct inconsistent with the representations tendered by one to the
other herein.
41. RECORDATION. Lessee shall not record this Lease or a short form
memorandum hereof without the prior written consent of Lessor. If Lessee does
record this Lease or a short form memorandum without the prior written consent
of Lessor, it shall be considered a default under the Lease entitling the Lessor
to terminate the Lessee's occupancy.
42. NO OPTION. The submission of this Lease Agreement for examination does
not constitute a reservation of, or option for, the Premises, and this Lease
Agreement becomes effective as a Lease Agreement only upon execution and
delivery thereof by Lessor and Lessee.
43. DEFINITIONS. (A) Affiliate. Affiliate shall mean any corporation
related to Lessee as a parent, subsidiary or brother-sister corporation so that
such corporation and such party or such corporation and such party and other
corporations constitute a controlled group as determined under Section 1563 of
the Internal Revenue Code of 1986, as amended and as elaborated
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by the Treasury Regulations promulgated thereunder or any business entity in
which Lessee has more than a fifty (50%) percent interest.
(B) Business Days and Building Hours. As used in this Lease,
the "Business Days" and the "Building Hours" shall be Monday through Friday,
8:00 a.m. to 6:00 p.m., and on Saturdays from 8:00 a.m. to 1:00 p.m., excluding
those Federal and/or State holidays observed by the employees of Lessor, except
that Common Facilities lighting in the Building, the Complex and Parcel shall be
maintained for such additional hours as, in Lessor's sole judgment, is necessary
or desirable to insure proper operation of the Building, the Complex and Parcel.
(C) Common Facilities. Common Facilities shall include, by way
of example and not by way of limitation, the parking areas; ingress and egress
areas to the Complex; lobby; elevator(s); public hallways; public lavatories;
all other general Building or Complex facilities that service all Building
tenants; air conditioning rooms; fan rooms; janitors' closets; electrical
closets; telephone closets; elevator shafts and machine rooms; flues; stacks;
pipe shafts and vertical ducts with their enclosing walls. Lessee's use of those
Common Facilities not open to all tenants is subject to Lessor's consent which
may be denied for any reason. Lessor may at any time close temporarily any of
the Common Facilities to make repairs or changes therein or to effect
construction, repairs or changes within the Building, Complex or Parcel, or to
discourage non-tenant parking or to prevent the dedication of the same, and may
do such other acts in and to any of the Common Facilities as in its judgment may
be desirable to improve the convenience thereof but shall always in connection
therewith endeavor to minimize any inconvenience to Lessee.
(D) Force Majeure. Force Majeure shall mean and include those
situations beyond either party's control, including by way of example and not by
way of limitation, acts of God; accidents; repairs; strikes; shortages of labor,
supplies or materials; inclement weather; or, where applicable, the passage of
time while waiting for an adjustment of insurance proceeds. Any time limits
required to be met by either party hereunder, whether specifically made subject
to Force Majeure or not, except those related to the payment of Term Fixed Basic
Rent or Additional Rent and except as to the time periods set forth in Section
27, shall, unless specifically stated to the contrary elsewhere in this Lease,
be automatically extended by the number of days by which any performance called
for is delayed due to Force Majeure.
(E) Lessee's Percentage. The parties agree that Lessee's
Percentage, as defined on the Reference Page, reflects and will be continually
adjusted to reflect the sum arrived at by dividing the gross square feet of the
area rented to Lessee (including an allocable share of all Common Facilities) as
set forth in Section 1 [the numerator], plus any additional gross
35
square footage leased from time to time pursuant to this Lease, by the total
number of gross square feet of the Complex (or additional buildings that may be
constructed within the Parcel), [the denominator], measured outside wall to
outside wall less five (5%) percent vacancy allowance of the Complex. Lessor
shall have the right to make changes or revisions in the Common Facilities of
the Building or Complex so as to provide additional leasing area. Lessor shall
also have the right to construct additional buildings in the Parcel for such
purposes as Lessor may deem appropriate and subdivide the lands for that purpose
if necessary, and upon so doing, the Parcel shall become the subdivided lot on
which the Building in which the Demised Premises is located. If any service
provided for in Subsection 25(A) or any utility provided for in Subsection 25(B)
is separately billed or separately metered within the Building or within the
Complex, then the square footage so billed or metered shall be deemed vacant and
if applicable subject to the Occupancy Adjustment set forth in Subsection 25(H).
Lessee understands that as a result of changes in the layout of the Common
Facilities from time to time occurring due to, by way of example and not by way
of limitation, the rearrangement of corridors, the aggregate of all tenant
Building proportionate shares or complex proportionate shares may be equal to,
less than or greater than one hundred (100%) percent.
44. LEASE COMMENCEMENT. Notwithstanding anything contained herein to
the contrary, if Lessor, for any reason whatsoever, including Lessor's
negligence, cannot deliver possession of the Premises to Lessee at the
commencement of the agreed Term as set forth in Section 2, this Lease shall not
be void or voidable, nor shall Lessor be liable to Lessee for any loss or damage
resulting therefrom, but in that event, the Lease Term shall be for the full
Term as specified above to commence from and after the date Lessor shall have
delivered possession of the Premises to Lessee or from the date Lessor would
have delivered possession of the Premises to Lessee but for any reason
attributable to Lessee (herein the "Commencement Date") and to terminate
midnight of the Termination Date, and if requested by Lessor, Lessor and Lessee
shall, by a writing signed by the parties, ratify and confirm said commencement
and termination dates. Notwithstanding anything contained herein to the
contrary, if Lessor shall not have delivered possession of the Demised Premises
to Lessee on or before October 1, 1996 as such date may be extended for reasons
of Force Majeure, and provided the reason therefor has not been as a result of
Lessee's acts or omissions, then, and in such event, Lessee may cancel this
Lease upon thirty (30) days' notice to Lessor, which notice may be given on or
after November 1, 1996 (as such date may be extended for reasons of Force
Majeure), and unless Lessor delivers possession of the Demised Premises within
the aforesaid thirty (30) days (similarly extended for reasons of Force
Majeure), this Lease shall terminate upon the expiration of said thirty (30) day
period (as extended for Force Majeure if applicable) and the parties shall be
released herefrom.
45. NOTICES. Any notice by either party to the other shall
36
be in writing and shall be deemed to have been duly given only if delivered
personally, sent by nationally recognized overnight courier service, or sent by
registered mail or certified mail in a postpaid envelope or by regulated carrier
service with return receipt addressed, if to Lessee, at the above-described
Building, with copy to Xxxxx Xxxxxx, Esq., Xxxxxx Xxxxx & Bockius LLP, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if to Lessor, at Lessor's address as set forth
above, with copy to Xxxxxxxxx & Xxxxxxxxx, P.A., 000 Xxxx Xxxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxx, Esq.; or to
either at such other address as Lessee or Lessor, respectively, may designate in
writing. Notice shall be deemed to have been duly given, if delivered
personally, on delivery thereof, and if mailed, upon the fifth (5th) day after
the mailing thereof.
46. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor
of a lesser amount than the Monthly Fixed Basic Rent and Additional Rent payable
hereunder shall be deemed to be other than a payment on account of the earliest
stipulated Monthly Fixed Basic Rent and Additional Rent, nor shall any
endorsement or statement on any check or any letter accompanying any check or
payment for Fixed Basic Rent or Additional Rent be deemed an accord and
satisfaction, and Lessor may accept such check or payment without prejudice to
Lessor's right to recover the balance of such Fixed Basic Rent and Additional
Rent or pursue any other remedy provided herein or by law.
47. EFFECT OF WAIVERS. No failure by Lessor or Lessee to insist upon
the strict performance of any covenant, agreement, term or condition of this
Lease, or to exercise any right or remedy consequent upon a breach thereof, and
no acceptance of full or partial Monthly Fixed Basic Rent or Additional Rent
during the continuance of any such breach, shall constitute a waiver of any such
breach or of such covenant, agreement, term or condition. No consent or waiver,
express or implied, by Lessor or Lessee to or of any breach of any covenant,
condition or duty of the other party shall be construed as a consent or waiver
to or of any other breach of the same or any other covenant, condition or duty,
unless in writing signed by the waiving party.
48. LESSOR'S RESERVED RIGHT. Lessor and Lessee acknowledge that the
Premises are in a Building which is not open to the general public. Access to
the Building is restricted to Lessor, Lessee, their agents, employees and
contractors and to their invited visitors. In the event of a labor dispute
including a strike, picketing, informational or associational activities
directed at Lessee or any other tenant, Lessor reserves the right unilaterally
to alter Lessee's ingress and egress to the Building or make any other change in
operating conditions to restrict pedestrian, vehicular or delivery ingress and
egress to a particular location.
49. ERISA REPRESENTATION. Lessee represents and warrants to Lessor to
the best of its knowledge that, as of the date hereof, neither Lessee nor any
affiliate of Lessee has employee
37
pension or profit-sharing plans that hold, in the aggregate, beneficial
interests representing greater than five (5%) percent of the total assets of any
RREEF investment fund. Lessee acknowledges that a breach of the foregoing
representation and warranty may constitute a prohibited transaction under the
terms of the Employee Retirement Income Security Act of 1974 and the Internal
Revenue Code, as modified by PTE 82-51, an administrative exemption from certain
of the prohibited transaction rules granted to the RREEF Funds by the United
States Department of Labor [46 Fed. Reg. 14, 238 (April 2, 1982)]. If at any
time Lessee or any affiliate of Lessee has employee pension or profit-sharing
plans that hold, in the aggregate, beneficial interests representing greater
than five (5%) percent of the total assets of any RREEF investment fund, Lessee
shall promptly advise Lessor of such fact in writing.
50. RELOCATION BY LESSEE. Lessor hereby reserves the right, at its sole
expense and on at least ninety (90) days' prior written notice but not more than
once during the Term, to require Lessee to move from the Premises to other space
within the Complex of comparable size and decor in order to permit Lessor to
consolidate the space leased to Lessee with any other space leased or to be
leased provided, however, that in the event of receipt of any such notice,
Lessee, by written notice to Lessor, may elect not to move to the other space
and in lieu thereof terminate this Lease effective sixty (60) days after the
date of the original notice of relocation by Lessor. In the event Lessee elects
to terminate as aforesaid, Lessor shall have the option to withdraw its exercise
of the relocation option. In the event of any such relocation, Lessor will pay
all expenses of preparing and decorating the new premises so that they will be
substantially similar to the Premises from which Lessee is moving and Lessor
will also pay the expense of moving Lessee's furniture and equipment to the
relocated premises as well as the cost of installing telephone, internet and
computer wiring therein. In such event, this Lease and each and all of the
terms, covenants and conditions hereof, shall remain in full force and effect
and thereupon be deemed applicable to such new space except that the description
of the Premises shall be revised and if applicable Lessee's Percentage shall
likewise be revised.
51. CORPORATE AUTHORITY. If Lessee is a corporation, Lessee represents
and warrants that this Lease and the undersigned's execution of this Lease has
been duly authorized and approved by the corporation's Board of Directors. The
undersigned officers and representatives of the corporation executing this Lease
on behalf of the corporation represent and warrant that they are officers of the
corporation with authority to execute this Lease on behalf of the corporation,
and within fifteen (15) days of execution hereof, Lessee will provide Lessor
with a corporate resolution confirming the aforesaid.
52. NUMBER AND GENDER. The terms "Lessor" and "Lessee" or any pronoun
used in place thereof shall indicate and include Landlord and Tenant, the
masculine or feminine, the singular or
38
plural number, individuals, firms or corporations, and their and each of their
respective successors, executors, administrators and permitted assigns,
according to the context hereof. In any case, where this Lease is signed by more
than one person, the obligations hereunder shall be joint and several.
53. LESSEE RESTRICTION. Lessee acknowledges that it has been advised by
Lessor that Lessor shall be precluded from permitting leases in the Building or
Complex to any cafeteria/restaurant operation including take-out service, coffee
wagon service, delivery service and/or catering service, and Lessee agrees that
Lessor's refusal to consent to any sublease or assignment proposed by Lessee to
any of the aforesaid entities shall not be considered unreasonable.
54. GOVERNMENT REQUIREMENTS. In the event of the imposition of Federal,
State, or local governmental control, rules, regulations, or restrictions on the
use or consumption of energy or other utilities or with respect to any other
aspect of this Lease during the Term, both Lessor and Lessee shall be bound
thereby. In the event of a difference in interpretation of any governmental
control, rule, regulation or restriction between Lessor and Lessee, the
interpretation of Lessor shall prevail, and Lessor shall have the right to
enforce compliance, including the right of entry into the Premises to effect
compliance.
55. CONTINGENCY. This Lease is hereby conditioned upon Lessor entering
into a surrender and acceptance agreement with the current tenant of the
Premises, which agreement shall be satisfactory to Lessor in its sole judgment,
failing which, at Lessor's option, this Agreement shall be deemed null and void
and of no further force or effect.
56. LIMITATION OF LESSOR'S 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
Lessor, that there shall be absolutely no personal liability on the part of
Lessor, its constituent members (to include but not be limited to officers,
directors, partners and trustees), their respective successors, assigns or any
mortgagee in possession (for the purposes of this Section, collectively referred
to as "Lessor"), with respect to any of the terms, covenants and conditions of
this Lease, and that Lessee shall look solely to the equity of Lessor in the
Building for the satisfaction of each and every remedy of Lessee in the event of
any breach by Lessor of any of the terms, covenants and conditions of this Lease
to be performed by Lessor, such exculpation of liability to be absolute and
without any exceptions whatsoever. A deficit capital account of any portion in
Lessor shall not be deemed an asset or property of Lessor. The foregoing
limitation of liability shall be noted in any judgment secured against Lessor
and in the judgment index.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
00
XX XXXXXXX XXX., Xxxxxx XXXXX XXX FUND-I, a California
Group Trust, Lessor
BY: RREEF MANAGEMENT COMPANY, a
California Corporation
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxx X. Xxxxxx
_______________________ ___________________________
XXXX X. XXXXXX,
Name: Xxxxx Xxxxxxxxx District Manager
_____________________
Title: President
____________________
Dated: August 1, 1996 8/7/96
____________________ Dated:________________________
40
