AGREEMENT OF LEASE
Between
REGENT PARK ASSOCIATES
As Landlord
And
AMERICAN DISEASE
MANAGEMENT ASSOCIATES
As Tenant
Dated: July 22, 1996
INDEX
DEFINITIONS ..................................................................1
ADDITIONAL RENT
BASIC RENT
BROKER
BUILDING
BUILDING HOLIDAY
COMMENCEMENT DATE
EXUSABLE DELAY
GOVERNMENTAL AUTHORITY
PARKING SPACES.................................................2
PREMISES
REAL PROPERTY
RENTABLE AREA OF THE BUILDING
RENTABLE AREA OF THE PREMISES
SECURITY DEPOSIT
STRUCTURAL REPAIRS
TENANT'S PROPORTIONATE SHARE
TERM
TERMINATION DATE
ARTICLE I
1.1 RENT...........................................................3
ARTICLE II
2.1 USE............................................................3
ARTICLE III
3.1 CHANGE OF COMMENCEMENT DATE ...................................4
ARTICLE IV
4.1 ACCEPTANCE.....................................................4
ARTICLE V
5.1 COMPLIANCE WITH LAWS AND
INSURANCE REQUIREMENTS ........................................4
ARTICLE VI
6.1 PERSONAL PROPERTY TAXES .......................................4
ARTICLE VII
7.1 ADDITIONAL RENT................................................4
7.2 TAXES.............................................................5
7.3 OPERATING EXPENSES.................................................5
7.4 LANDLORD'S STATEMENTS ............................................6
ARTICLE VIII
8.1 RULES AND REGULATIONS .........................................6
ARTICLE IX
9.1 LANDLORD'S RIGHT OF ENTRY .....................................7
ARTICLE X
10.1 MAINTENANCE BY TENANT ...........................................7
10.2 MAINTENANCE BY LANDLORD .........................................7
ARTICLE XI
11.1 ALTERATIONS OR IMPROVEMENTS BY TENANT............................7
ARTICLE XII
12.1 ASSIGNMENT AND SUBLETTING .......................................8
ARTICLE XIII
13.1 SURRENDER.......................................................10
ARTICLE XIV
14.1 HOLDING OVER....................................................10
ARTICLE XV
15.1 ELECTRICITY.....................................................10
ARTICLE XVI
16.1 QUIET ENJOYMENT.................................................11
ARTICLE XVII
17.1 AIR AND LIGHT...................................................11
ARTICLE XVII
18.1 DEFAULT.........................................................11
ARTICLE XIX
19.1 LANDLORD'S RIGHTS UPON TENANT'S DEFAULT ........................12
ARTICLE XX
20.1 LANDLORD'S REMEDIES CUMULATIVE:EXPENSES.........................14
ARTICLE XXI
21.1 SUBORDINATION, ESTOPPEL & ATTORNMENT ...........................14
ARTICLE XXII
22.1 DAMAGE BY FIRE OR OTHER CASUALTY ...............................15
ARTICLE XXIII
23.1 MUTUAL WAIVER OF SUBROGATION....................................15
ARTICLE XXIV
24.1 CONDEMNATION....................................................16
ARTICLE XXV
25.1 CHANGES SURROUNDING BUILDING....................................16
ARTICLE XXVI
26.1 NOTICES.........................................................16
ARTICLE XXVII
27.1 NO WAIVER.......................................................17
ARTICLE XXVIII
28.1 LANDLORD'S RESERVED RIGHTS .....................................17
ARTICLE XXIX
29.1 LANDLORD'S LIABILITY............................................17
ARTICLE XXX
30.1 TENANT'S LIABILITY..............................................17
ARTICLE XXXI
31.1 TENANT'S INSURANCE..............................................18
ARTICLE XXII
32.1 MECHANICS' LIENS................................................18
ARTICLE XXXIII
33.1 NOTICE OF FIRE AND ACCIDENTS ...................................19
ARTICLE XXXIV
34.1 RELEASE OF LANDLORD ............................................19
ARTICLE XXXV
35.1 USE OF SECURITY DEPOSIT ........................................19
ARTICLE XXXVI
36.1 SIGNS...........................................................20
ARTICLE XXXVII
37.1 GLASS...........................................................20
ARTICLE XXXVIII
38.1 HAZARDOUS WASTE, AIR, WATER AND GROUND POLLUTION ...............20
ARTICLE XXXIX
39.1 ISRA COMPLIANCE.................................................21
ARTICLE XL
40.1 TENANT RELOCATION ..............................................21
ARTICLE XLI
41.1 NET RENT........................................................21
ARTICLE XLII
MISCELLANEOUS
42.1 ENTIRE AGREEMENTS ..............................................22
42.2 JURY TRIAL WAIVER ..............................................22
42.3 FORCE MAJEURE ..................................................22
42.4 BROKER 22
42.5 SEPARABILITY ...................................................22
42.6 INTERPRETATION .................................................22
42.7 FINANCIAL STATEMENTS ...........................................23
42.8 PARKING 23
ARTICLE XLIII
43.1 LETTER OF CREDIT................................................23
SIGNATURE PAGE
ACKNOWLEDGEMENTS.............................................................24
ATTACHMENTS:
USE AND OCCUPANCY AGREEMENT
WORKLETTER
RULES AND REGULATIONS
EXHIBIT "A"
AGREEMENT OF LEASE
AGREEMENT OF LEASE made this 22ND of JULY, 1996 between REGENT
PARK ASSOCIATES, a New Jersey Partnership, having a principal place of business
at c/o Eastman Management Corporation, 000 X. Xx. Xxxxxxxx Xxx., Xxxxxxxxxx, XX
00000, hereinafter referred to as "Landlord"; and AMERICAN DISEASE MANAGEMENT
ASSOCIATES a New Jersey Corporation, having an office and principal place of
business at 0000 Xxxxxx Xxxxxx, Xxxxx, Xxx Xxxxxx, hereinafter referred to as
"Tenant".
WITNESSETH:
For and in consideration of the covenants herein contained, and upon the terms
and conditions herein set forth, Landlord and Tenant agree as follows:
DEFINITIONS
For all purposes of this Lease and all agreements supplemental thereto or
modifying this Lease, the following terms shall have the meaning specified:
"ADDITIONAL RENT"
ADDITIONAL RENT shall mean all sums payable by Tenant to Landlord
pursuant to the various Articles herein in which said term is used.
"BASIC RENT"
BASIC RENT shall mean $38,713.50 per annum, payable in equal
monthly installments on the first day of each month during the
Term, in advance, in the amount of $3,226.13 to be paid at the
office of Landlord, or such other place as Landlord may
designate, without any set-off demand or deduction whatsoever,
except that Tenant shall pay the first monthly installment of
Basic Rent ($3,226.13) and Additional Rent ($1,305.81)
simultaneously with the execution hereof, receipt of which
Landlord hereby acknowledges. To the extent the actual Rentable
Area of the Premises, as that term is herein defined, differs
from that which is set forth herein, the Basic Rent shall be
adjusted accordingly.
"BROKER"
Broker shall mean Xxxxxxx Management Corporation
"BUILDING"
BUILDING shall mean the building known as 5 N Regent Park, and
located at 0 X Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxx Xxxxxx.
"BUILDING HOLIDAY"
BUILDING HOLIDAY shall mean President's Day, Memorial Day,
Independence Day, Labor Day, Columbus Day, Veteran's Day,
Thanksgiving Day and the day after, Christmas Day, and New Year's
Day as each of said holidays are celebrated in the state in which
the Real Property is located.
"COMMENCEMENT DATE"
COMMENCEMENT DATE shall mean October 28, 1996.
In the event the COMMENCEMENT DATE shall fall on a day other than
the first day of a month, then, in such event, the BASIC RENT and
ADDITIONAL RENT payable hereunder shall be apportioned for the
number of days remaining in that month until the last day
thereof.
"EXCUSABLE DELAY"
EXCUSABLE DELAY shall mean a delay caused by strike, lock-out or
other labor troubles, act of God, inability to obtain labor or
materials, governmental restrictions, enemy action, civil
commotion, fire, unavoidable casualty, or any other cause similar
or dissimilar, beyond the reasonable control of either Landlord
or Tenant, or due to the passing of time while waiting for an
adjustment of insurance proceeds.
"GOVERNMENTAL AUTHORITY"
GOVERNMENTAL AUTHORITY shall mean the town, village, city,
county, state, or federal government, or any agency or
quasi-governmental agency having jurisdiction over the Real
Property.
"PARKING SPACES"
PARKING SPACES shall mean the parking spaces located on the Real
Property.
"PREMISES"
PREMISES shall mean the area cross hatched on the floor plan of
the Building annexed hereto as Exhibit A and made a part hereof.
"REAL PROPERTY"
REAL PROPERTY shall mean the land upon which the Building is
located and the Building collectively.
"RENTABLE AREA OF THE BUILDING"
RENTABLE AREA OF THE BUILDING shall mean 68,808 square feet.
"RENTABLE AREA OF THE PREMISES"
RENTABLE AREA OF THE PREMISES shall mean the sum of (1) the total
number of square feet contained in the area shown on Exhibit A
computed by measuring from the outside finish of the exterior of
the Building wall(s) to the corridor side of the corridor walls
or permanent partitions in the Premises, and to the center of
partitions that separate the Premises from adjoining areas in the
Building; plus (2) an appropriate adjustment of once percent (1%)
for the Premises' allocable share of the Building that is used
for public corridors, public toilets, air-conditioning rooms, fan
rooms, janitor's closets, electrical closets, telephone closets,
elevator shafts, flues, stacks, pipe shafts and vertical ducts
with their enclosing walls. In computing Rentable Area of the
Premises and Rentable Area of the Building, no deduction shall be
made for columns and projections necessary for the structural
integrity of the Building, and the measurements provided to
Landlord by Landlord's architect shall be conclusive and binding
upon the parties hereto. The Rentable area of the Premises is
3,687 square feet.
"SECURITY DEPOSIT"
SECURITY DEPOSIT shall mean $18,127.75 deposited by Tenant with
Landlord simultaneously herewith. Said amount shall increase
proportionately in the same percentage as any increase in Basic
Rent. However, Tenant may split the above amount as $9,063.88
cash and the balance in the form of a L/C, as more fully
described in Article 43 herein.
"STRUCTURAL REPAIRS"
STRUCTURAL REPAIRS shall mean repairs to the roof, foundation,
and permanent exterior walls and support columns of the Building.
"TENANT'S PROPORTIONATE SHARE"
TENANT'S PROPORTIONATE SHARE is five point four Percent (5.4%).
To the extent the actual Rentable Area of the Premises or the
actual Rentable Area of the Building, as those terms are herein
defined, differs from that which is set forth herein, Tenant's
Proportionate Share shall be adjusted accordingly.
"TERM"
TERM shall mean a period of thirty six (36) months commencing on
the Commencement Date or on the 1st day of the first full month
after the Commencement Date if same shall not be on the first day
of the month, and terminating on the Termination Date.
"TERMINATION DATE"
TERMINATION DATE shall mean thirty six (36) months from the later
of the Commencement Date or the first day of the first full month
after the Commencement Date if same shall not be on the first day
of the month.
This Lease consists of this LEASE AGREEMENT and EXHIBIT A (floor plans of
Premises), a WORK LETTER, RULES AND REGULATIONS.
ARTICLE I
1. RENT
1.1 Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord the Premises for the Term.
1.2 Tenant hereby covenants and agrees to pay, when due, the Basic Rent
and all Additional Rent as herein provided.
1.3 Any installment or installments of Basic Rent or Additional Rent
accruing hereunder, and all other sums payable by Tenant hereunder which
are not paid when due (without regard to any otherwise applicable cure
period), shall bear interest at the rate of two (2%) percent per month
(unless such rate shall be unlawful, in which case the highest permitted
legal rate shall apply). In addition, if Tenant is delinquent more than
five (5) days in the payment of any Basic Rent or Additional Rent it
shall pay to the Landlord a late charge equal to five ($.05) cents for
each dollar of Basic Rent or Additional Rent which is delinquent.
1.4 In the event any check paid by Tenant for the payment of any
installment or installments of Basic Rent or Additional Rent or for any
other sums payable by Tenant hereunder is returned by Landlord's bank
for insufficient or unavailable funds, Tenant shall pay to Landlord a
Fifty ($50.00) Dollar handling and administration fee upon notice and
demand by Landlord.
ARTICLE II
2. USE
2.1 The Premises are to be used only for executive, general, and
administrative offices and for no other purpose. Neither Tenant nor any
of Tenant's servants, agents, employees, invitees or licensees shall
damage, disfigure or injure the Premises or any portion thereof or the
Real Property; nor shall Tenant allow the emission of any offensive
odors or noise from the Premises. Any office equipment or machines used
by Tenant within the Premises which may interfere with the use or
enjoyment of any other tenant or occupant of the Building or which may
be heard from any public area in or about the building shall be placed
and maintained by Tenant, at Tenant's sole expense, in a sound proof
setting such as cork, rubber or vibration eliminators to eliminate any
such noise or vibration. As an ancillary use, Tenant may mix
pharmaceutical prescriptions in the space marked "Pharmaceutical" on the
attached plan.
2.2 If any governmental license or permits, other than a certificate of
occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Premises, or any part thereof, and if failure
to secure such license or permit would in any way affect Landlord,
Tenant, at its expense shall duly procure and thereafter maintain such
license or permit and submit the same to inspection by Landlord. Tenant
shall, at all times, comply with the terms and conditions of each such
license or permit.
2.3 Tenant shall not store, place or allow the storing or placement of
any materials, debris or other obstructions of any nature in any
hallway, lobby or other public areas of the interior of the Real
Property or on the sidewalk, parking area or other area or areas
abutting or adjacent to the Real Property.
2.4 Tenant shall not place anything on any floor of the Premises which
will create a load in excess of the load per square foot which such
floor was designed to carry.
2.5 Tenant shall not move any heavy equipment or bulky matter,
including, but not limited to safes or large office equipment or
furniture, into or out of the Building without first obtaining
Landlord's consent. If the movement of such items requires any special
handling, all such work shall be done in full compliance with applicable
laws, ordinances, codes, rules and regulations and any other applicable
governmental requirements. All such movements shall be made during hours
designated by Landlord which will least interfere with the normal
operation of the Building, and all damage directly or indirectly caused
by such movement shall be promptly repaired by Tenant at Tenant's
expense.
2.6 Landlord shall provide Tenant with up to four (4) undesignated
parking spaces per one thousand (1,000) square feet of floor space of
the Premises.
ARTICLE III
3. CHANGE OF COMMENCEMENT DATE
3.1 If, for any reason, the Premises are not, or will not be, ready for
occupancy on the Estimated Commencement Date, this Lease shall
nevertheless continue in full force and effect and Tenant shall have no
right to rescind, cancel, or terminate same, nor shall Landlord be
liable for damages, if any, sustained by Tenant by reason of inability
to obtain possession thereof on such date. In such event, Landlord will
give Tenant notice, oral or otherwise, at least three (3) days in
advance of the date when Landlord expects the Premises to be ready for
occupancy by Tenant, which date shall be the then Estimated Commencement
Date.
3.2 If Tenant shall use or occupy all or any part of the Premises for
the conduct of business prior to the Commencement Date, such use or
occupancy shall be deemed to be under all of the terms, covenants and
conditions of this Lease, including the covenant to pay Basic Rent and
Additional Rent for the period from the commencement of said use or
occupancy to and including the date immediately preceding the
Commencement Date, without, however, affecting the Term or the
Termination Date. The provisions of the foregoing sentence shall not be
deemed to give to Tenant any right or ability to use or occupy the
Premises prior to the Commencement Date without the written consent of
Landlord.
ARTICLE IV
4. ACCEPTANCE
4.1 When Tenant takes possession of the Premises, Tenant shall be deemed
to have accepted the Premises as being satisfactory and in good
condition as of the date of such possession, unless Tenant gives notice
to Landlord to the contrary within thirty (30) days thereafter.
ARTICLE V
5. COMPLIANCE WITH LAWS AND INSURANCE REQUIREMENTS
5.1 Tenant shall not do, or permit anything to be done in or to the
Premises, or bring or keep anything therein which will, in any way,
increase the cost of property or public liability insurance on the Real
Property, or invalidate or conflict with the property insurance or
public liability insurance policies covering the Real Property, any
Building Fixtures, or any personal property kept therein, or obstruct or
interfere with the rights of Landlord or of other tenants, or in any
other way injure or annoy Landlord or other tenants, or subject Landlord
to any liability for injury to persons or damage to property, or
interfere with the good order of the Building, or conflict with the
present or future laws, rules, or regulations of any Governmental
Authority. Tenant hereby indemnifies and will hold Landlord harmless of
and from all liability for injury to persons or damage occurring on the
Premises, in the Building, or on the Real Property, whether occasioned
by any act or omission of Tenant, or Tenant's agents, servants,
employees, invitees, or licensees. Tenant agrees that any increase in
insurance premiums on the Building or contents caused by the occupancy
of Tenant and any expense or cost incurred in consequence of negligence,
carelessness, or willful action of Tenant, Tenant's agents, servants,
employees, invitees or licensees, shall be reimbursed to Landlord within
ten (10) days of deemed therefore. Any amounts payable by Tenant
hereunder shall be deemed Additional Rent.
ARTICLE VI
6. PERSONAL PROPERTY TAXES
6.1 Tenant agrees to pay all taxes imposed on the personal property of
Tenant, the conduct of its business, and its use and occupancy of the
Premise.
ARTICLE VII
7.1 ADDITIONAL RENT
7.1.1 Tenant hereby covenants and agrees to pay, as Additional Rent the
amounts as set forth below.
7.2 TAXES
7.2.1 For each year or part of a year occurring within the Term, Tenant
shall pay to Landlord, within thirty (30) days after Landlord's
presentation of Landlord's Statement (as hereinafter defined), to Tenant
therefor, as Additional Rent, Tenant's Proportionate Share of all real
estate and personal property taxes (inclusive of municipal sewer and
water rents and charges, if any) assessed against the Real Property and
Building of which the Premises are a part .
7.2.2 As used herein, the term "Real Estate Taxes" shall mean those real
estate taxes, assessments, sewer rents, rates and charges which shall be
levied, imposed or assessed upon the Real Property, provided that, if
because of any change in the method of taxation of real estate any other
tax or assessment is imposed upon Landlord or the owner of the Real
Property or upon or with respect to the Real Property or the rents or
income therefrom in substitution for or in lieu of those taxes
attributable to the Real Property, such other tax or assessment shall be
deemed Real Estate Taxes for the purpose herein; provided, however, that
Real Estate Taxes shall not include any gift, inheritance, estate,
franchise, income, profits, capital or similar tax imposed, unless and
to the extent any such tax shall be imposed or levied in lieu of Real
Estate Taxes.
7.2.3 Landlord may take the benefit of the provisions of any statute or
ordinance permitting any Real Estate Taxes to be paid over a period of
time.
7.2.4 If Landlord shall receive any refund of Real Estate Taxes in
respect of any tax year, Landlord shall deduct from such refund any
expenses incurred in obtaining such refund, and out of the remaining
balance of such refund, Landlord shall credit to Tenant Tenant's
Proportionate Share of such refund provided however, that in no event
shall any such refund reduce Tenant's Proportionate Share of Real Estate
Taxes beyond that which was originally charged to Tenant as Additional
Rent. Any expenses incurred by Landlord in contesting the validity of
the amount of the assessed valuation of the Real Property or of any Real
Estate Taxes, to the extent not offset by a tax refund, shall be
included as an item of Real Estate Taxes for the tax year in which such
contest shall be finally determined for the purpose of computing the
Additional Rent due Landlord or any credit due to Tenant hereunder.
7.2.5 If the tax year for Real Estate Taxes shall be changed, then
appropriate adjustment shall be made in the computation of the
Additional Rent due to Landlord or any credit due to Tenant, in
accordance with sound accounting principles to effectuate the changeover
to any new tax year adopted by any taxing authority.
7.2.6 If the last year of the Term ends on any day other than the last
day of a tax year, any payment due to Landlord or credit due to Tenant
by reason of any increase in Real Estate Taxes shall be prorated and
Tenant covenants to pay any amount due to Landlord within thirty (30)
days after being billed therefore and Landlord covenants to credit any
amount due to Tenant as the case may be. These covenants shall survive
the expiration or termination of this Lease.
7.3 OPERATING EXPENSES
7.3.1 For each year or part of a year occurring within the Term, Tenant
shall pay to Landlord within thirty (30) days after Landlord's
presentation of Landlord's Statement (as hereinafter defined) to Tenant
therefor, as Additional Rent, Tenant's Proportionate Share of the
Operating Expenses attributable to the Real Property and Building.
7.3.2 As used herein, the term "Landlord's Operating Expenses" shall
mean those costs or expenses paid or incurred by Landlord for operating,
maintaining, and repairing (inclusive of Structural Repairs) the
Building, any of its systems, or the Real Property, including the cost
of electricity, gas, water, fuel, window cleaning, janitorial service,
insurance of all kinds carried in good faith by Landlord and applicable
to the Building or the Real Property, snow removal, maintenance and
cleaning of the parking lot, landscape maintenance (including replanting
and replacing flowers and other plantings), painting or repainting or
redecorating of the public areas, maintenance of equipment and
replacement of worn out mechanical or damaged equipment, uniforms,
management fees, typical and customary office expenses, building
supplies, sundries, sales or use tax on supplies or services, wages,
salaries and other compensation, including applicable payroll taxes and
benefits, of all persons engaged by Landlord for the operation,
maintenance and repair of the Building and the Real Property including
independent contractors' fees, replacement cost of tools and equipment,
legal and accounting expenses, and any other expenses or costs, which in
accordance with generally accepted accounting principles and the
standard management practices for office buildings comparable to the
Building would be considered as an expense of operating, maintaining, or
repairing the Building and the Real Property. Excluded from Landlord's
Operating Expenses are capital improvement costs (unless any such cost
or costs are incurred as a cost savings measure (not to exceed the
actual cost savings) that will, at least in part, be of benefit to
Tenant), costs reimbursed by insurance or otherwise, the cost of work
performed specifically for a tenant in the Building for which such
tenant reimburses Landlord, costs in connection with preparing space for
a new tenant and real estate broker's commissions.
7.4 LANDLORD'S STATEMENTS
7.4.1 On or about May first of each year of the Term, or within a
reasonable period of time thereafter, Landlord shall submit to Tenant a
statement ("Landlord's Statement") showing in reasonable detail
Landlord's Operating Expenses and Real Estate Taxes during the preceding
calendar year. Within ten (10) business days next following the
submission of a Landlord's Statement Tenant shall pay to Landlord
Tenant's Proportionate Share. Provided Tenant pays its Proportionate
Share of said amount in accordance with the terms herein, Tenant or its
representative shall have the right to examine Landlord's books and
records with respect to the items in the foregoing Landlord's Statement
during normal business hours at any time within twenty (20) days
following the delivery by Landlord to Tenant of such Landlord's
Statement. Tenant's failure to inspect during said time period shall be
deemed a waiver of Tenant's right to so inspect and Tenant waives its
right to request any such inspection after said twenty (20) day period.
Unless Tenant shall take written exception to any item contained therein
within thirty (30) days after the delivery of same, such Landlord's
Statement shall be considered as final and accepted by Tenant and Tenant
waives its right to take exception after said thirty (30) day period. In
the event Tenant takes timely written exception to any item contained in
Landlord's books and records with respect to the items in the foregoing
Landlord's Statement, any payment made in accordance with this Paragraph
7.4.1 shall be deemed made in protest to the extent of such exception.
7.4.2 On the first day of each month following the submission of any
Landlord's Statement which shows that Tenant is obligated to pay
Additional Rent pursuant to this ARTICLE, Tenant shall pay to Landlord,
on account of its potential obligation to pay such Additional Rent for
the calendar year following the calendar year for which such Landlord's
Statement shall have been rendered, a sum equal to one-twelfth (1/12) of
the amount which the Tenant shall have paid as such Additional Rent for
such prior calendar year. Such sum shall be due with each monthly
installment of Basic Rent until submission of the next succeeding
Landlord's Statement and shall be collectible by Landlord as Additional
Rent. However, the Landlord may, at its discretion from time to time
determine the new monthly account payments based on the Landlord's
operating budget for the year to which the monthly account payments
apply (Budget Billing). Such account payments may begin on January 1 of
the subject year or thereafter whenever the account payments are
determined with an appropriate retroactive adjustment to January 1 of
that year.
7.4.3 In each Landlord's Statement there shall be a reconciliation as
follows: Tenant shall be charged with any Additional Rent shown on such
Landlord's Statement, which charge shall be reduced by the aggregate
amount, if any, paid by Tenant on account thereof. Tenant shall pay any
net balance due to Landlord within thirty (30) days as set forth above;
any overpayment shall be applied by Landlord against the next accruing
monthly installment of Additional Rent, or shall be paid over to Tenant
upon termination of this Lease, subject to Landlord's rights and
remedies hereunder.
7.4.4 Any Additional Rent under this ARTICLE shall be prorated for the
final calendar year of the Term if such year covers a period of less
than twelve (12) months. In no event shall any adjustment in Tenant's
obligation to pay Additional Rent under this ARTICLE result in a
decrease in the Basic Rent payable hereunder. Tenant's obligation to pay
Additional Rent and Landlord's obligation to credit to Tenant any amount
referred to in this ARTICLE for the final year of the Term shall survive
the expiration or termination of this Lease.
ARTICLE VIII
8. RULES AND REGULATIONS
8.1 Tenant, on behalf of itself and its employees, agents, servants,
invitees, and licensees, agrees to comply with the Rules and Regulations
with respect to the Real Property which are set forth at the end of this
Lease and are expressly made a part hereof. Landlord shall have the
right to make reasonable amendments thereto from time to time for the
safety, care, and cleanliness of the Real Property, the preservation of
good order therein, and the general convenience of all the tenants and
Tenant agrees to comply with such amended Rules and Regulations, after
twenty (20) days written notice thereof from Landlord. All such
amendments shall apply to all tenants in the Building, and will not
materially interfere with the use and enjoyment of the Premises or the
parking lot by Tenant.
ARTICLE IX
9. LANDLORD'S RIGHT OF ENTRY
9.1 Landlord and Landlord's agents and representatives shall have the
right to enter into or upon the Premises, or any part thereof, at all
reasonable hours for the following purposes: (1) examining the Premises;
(2) making such repairs or alterations therein as may be necessary in
Landlord's sole judgment for the safety and preservation thereof; (3)
erecting, maintaining, repairing, or replacing wires, cables, conduits,
vents or plumbing equipment running in, to, or through the Premises; or
(4) showing the Premises to prospective purchasers or lessees of the
Building or to prospective mortgagees or to prospective assignees of any
such mortgagees or others; or (5) showing the Premises to prospective
new tenants of the Premises during the last year of the Term. However,
Landlord shall give Tenant prior notice, oral or otherwise, before
commencing any non-emergency repair or alteration.
9.2 Landlord may enter upon the Premises at any time in case of
emergency without prior notice to Tenant.
9.3 Landlord, in exercising any of its rights under this ARTICLE IX,
shall not be deemed guilty of an eviction, or disturbance of Tenant's
use or possession of the Premises and shall not be liable to Tenant for
the same. The Basic Rent and Additional Rent as defined in this Lease
shall in no way xxxxx while said repairs or alterations are being made.
9.4 All work performed by or on behalf of Landlord in or on the Premises
pursuant to this ARTICLE IX shall be performed with as little
inconvenience to Tenant's business as possible, and in such manner as
not unreasonably to interfere therewith.
ARTICLE X
10.1 MAINTENANCE BY TENANT
10.1.1 Tenant shall take good care of the Premises throughout the Term
and shall preserve the same in the condition delivered to Tenant on the
Commencement Date, normal wear and tear excepted. Tenant, at its sole
cost, shall be responsible for the cleaning and maintenance of the
Premises and shall retain and maintain its own janitorial services.
Tenant further agrees not to injure, overload, deface, or commit waste
of the Premises, the Building or the Real Property. Tenant shall be
responsible for all injury or damage of any kind or character to the
Real Property, including the windows, floors, walls, ceilings, lights,
electrical equipment, plumbing and HVAC equipment, caused by Tenant or
by anyone using or occupying the Premises by, through, or under the
Tenant. In addition, Tenant shall, at its sole cost and expense,
maintain a service contract with a reliable HVAC contractor reasonably
acceptable to Landlord to perform regular monthly or other required
service and maintenance to the HVAC system. If the Premises become
infested with vermin, Tenant shall, at Tenant's expense, cause the same
to be exterminated from time to time to the satisfaction of Landlord and
shall employ such extermination company as shall be approved by
Landlord.
10.2 MAINTENANCE BY LANDLORD
10.2.1 Landlord shall be responsible for making all Structural Repairs and
shall maintain, repair and replace the parking area and the exterior of
the Building, except those repairs or replacements arising from the
negligence of Tenant, its agents, servants, employees, licensees, or
invitees, which shall be the sole responsibility of Tenant.
ARTICLE XI
11. ALTERATIONS OR IMPROVEMENTS BY TENANT
11.1 Tenant shall make no changes in or to the Premises of any nature
without Landlord's prior written consent and without first representing
that the contemplated changes in or to the Premises will do nothing to
increase the property or liability rates charged to Landlord for the
Building. In the event Landlord consents to the contemplated changes and
such changes result in an increase in the property or liability rates
charged to Landlord for the Building, Tenant shall be responsible for such
increase as Additional Rent. Subject to the aforementioned consent of
Landlord, Tenant at Tenant's sole expense, may hire contractors approved
by Landlord, or Landlord may elect, on Tenant's behalf, to make such
alterations, installations, additions, or improvements in or to the
Premises (collectively "Tenant Alterations") which are non-structural and
which do not affect utility services, plumbing, electrical lines,
sprinkler systems, HVAC systems or any other mechanical systems, in or to
the Premises or Building or which involve any drywall construction. All
such Tenant Alterations shall, upon installation, become the property of
Landlord and shall remain upon and be surrendered with the Premises,
unless otherwise required by Landlord to be removed by Tenant upon the
expiration or termination of this Lease or unless Tenant, by notice to
Landlord no later than thirty (30) days prior to the Termination Date,
requests Landlord's consent to remove the same. If Landlord so consents
the same shall be removed from the Premises by Tenant prior to the
Termination Date at Tenant's sole expense. Nothing in this ARTICLE XI
shall be construed to give Landlord title to or to prevent Tenant's
removal of trade fixtures, movable office furniture and equipment, but
upon removal of any such from the Premises or upon removal of any other
installation as may be permitted by Landlord, Tenant shall immediately and
at its expense, repair and restore the Premises to the condition existing
prior to such Tenant Alterations, taking care during such removal. Tenant
shall repair any damage to the Premises or to the Real Property incurred
during such removal. All property permitted or required to be removed by
Tenant at the end of the Term which remains on the Premises after the
Termination Date shall be deemed abandoned and may, at the election of
Landlord, either be retained as Landlord's property or may be removed from
the Premises by Landlord at Tenant's expense.
11.2 Prior to the commencement of any Tenant Alterations, Tenant shall at
its sole expense, obtain all required permits, approvals, and certificates
required by all Governmental Authorities. Upon completion of the Tenant
Alterations, Tenant shall, at its sole expense, obtain certificates of
final approval thereof. Tenant shall deliver to Landlord duplicates of the
same prior to commencing the said Tenant Alterations and promptly upon
completion of the same, as the case may be. Tenant shall carry and will
cause Tenant's contractors and subcontractors to carry such xxxxxxx'x
compensation, as required by law, general liability, (including, but not
limited to completed operations, broad form property damage and hired and
non-owned automobile coverage), personal and property damage insurance,
and automobile liability insurance in amounts no less than the amounts set
forth in ARTICLE XXXI below.
11.3 Upon completion of any Tenant alterations as defined herein, Tenant
shall immediately deliver to Landlord (i) an unconditional, final
Certificate of Occupancy, (ii) "as-built" final plans and drawings
identical to those upon which Landlord granted its approval, and (iii)
Tenant's architect's certification that the alterations, as completed,
conform with all applicable local, county state and/or federal statutes,
ordinances, rules, regulations and codes including, but not limited to the
orders, rates and regulations of the National and local Boards of Fire
Underwriters and any other body or bodies hereinafter exercising similar
functions.
ARTICLE XII
12. ASSIGNMENT AND SUBLETTING
12.1 Tenant for itself, its heirs, distributees, successors, and assigns,
expressly covenants that it shall not directly or indirectly by operation
of law, merger, consolidation, reorganization, dissolution, change of
majority ownership of Tenant, or otherwise, assign, (which for purposes of
this Lease, shall include any such merger, consolidation, reorganization,
dissolution or change of ownership of Tenant), mortgage, or encumber this
Lease, or any part thereof, or permit the Premises to be used by others
without the prior written consent of Landlord in each instance. Any
attempt to do so by the Tenant shall be void. The consent by Landlord to
any assignment, mortgage, encumbrance, subletting, or use of the Premises
by others shall not constitute a waiver of Landlord's right to withhold
its consent to any other assignment, mortgage, encumbrance, or use of the
Premises by others. Without the prior written consent of Landlord, this
Lease and the interest of Tenant therein or any assignee of Tenant
therein, shall not pass by operation of law, and shall not be subject to
garnishment or sale under execution in any suit or proceeding which may be
brought against or by Tenant or any assignee of Tenant.
12.2 Landlord covenants and agrees that it will not unreasonably withhold
its consent to Tenant's assigning or subletting all or a part of the
Premises, provided, however, (1) that Tenant shall not be in default under
any of the terms, covenants, conditions, provisions, and agreements of
this Lease at the time of any notice or request for consent under the
terms of this ARTICLE XII or at the effective date of such subletting or
assigning; and (2) that such subletting or assigning shall not be made
with a Tenant who shall be or who shall seek to use any portion of the
Premises for a use incompatible with that customarily found in first-class
office buildings. Notwithstanding the foregoing, the Premises may not be
sublet or assigned to any employment agency, governmental department,
labor union office, doctor's or dentist's office, dance or music studio,
school or beauty salon and (3) that the proposed subtenant or assignee is
not then an occupant of any part of the Building or a party who dealt with
Landlord or Landlord's agent (directly or through a broker) with respect
to space in the Building during the 12 months immediately preceding
Tenant's request for Landlord's consent; and (4) that Tenant shall have
granted to the Landlord or Landlord's agent the exclusive right to sublet
the Premises or such portion thereof as Tenant proposes to sublet or to
assign this Lease as the case may be.
12.3 If Tenant requests Landlord's consent to an assignment of this Lease
or a subletting of all or any part of the Premises, Tenant shall submit to
Landlord: (1) the name and address of the proposed assignee or subtenant;
(2) the terms of the proposed assignment or subletting; (3) the nature of
the proposed assignee's pr subtenant's business; and (4) such information
as to the proposed assignee's or subtenant's financial responsibility and
general reputation as Landlord may reasonably require.
12.4 Upon the receipt of such request and information from Tenant,
Landlord shall have the option to be exercised in writing within thirty
(30) days after such receipt, to either (1) cancel and terminate this
Lease, if the request is to assign this Lease or to sublet all of the
Premises, or if the request is to sublet a portion of the Premises only,
to cancel and terminate this Lease with respect to such portion, in each
case as of the date set forth in Landlord's notice of exercise of such
option; or (2) to grant said request; or, (3) to deny such request.
12.5 In the event Landlord shall cancel this Lease, Tenant shall surrender
possession of the Premises, or the portion of the Premises which is the
subject of the request, as the case may be, on the date set forth in such
notice in accordance with the provisions of this Lease relating to
surrender of the Premises. If the Lease shall be canceled as to a portion
of the premises only, the Basic Rent and Additional Rent payable by Tenant
hereunder shall be reduced proportionately according to the ratio that the
number of square feet in the portion of space surrendered bears to the
square feet in the Rentable Area of the Premises.
12.6 In the event that Landlord shall consent to a sublease or assignment
pursuant to the request from Tenant, Tenant shall cause to be executed by
its assignee or subtenant an agreement to perform faithfully and to assume
and be bound by all of the terms, covenants, conditions, provisions, and
agreements of this Lease for the period covered by the assignment or
sublease and to the extent of the space sublet or assigned. An executed
copy of each sublease or assignment and assumption of performance by the
sublessee or assignee, on a form acceptable to Landlord, shall be
delivered to Landlord within thirty (30) days prior to the commencement of
occupancy set forth in such assignment or sublease. No such assignment or
sublease shall be binding on Landlord until Landlord has received such
copies as required herein.
12.7 In no event shall any assignment or subletting (whether or not
Landlord may have consented), release or relieve Tenant from its
obligations to fully perform all of the terms, covenants, and conditions
of this Lease on its part to be performed.
12.8 Without otherwise restricting the grounds upon which Landlord may
otherwise withhold its consent, Landlord shall not be deemed to have
unreasonably withheld its consent to such an assignment or subletting if
"Landlord Consent Requirements" are not satisfied. Furthermore, Landlord
may withhold its consent if, in its judgment, it determines that:
12.8.1 The proposed new use of the Premises is not, in
Landlord's sole opinion, appropriate for the Building or in
keeping with the character of the existing tenancies or is
expressly prohibited under the terms of this Lease.
12.8.2 The proposed assignee's use or occupancy will make
unreasonable or excessive demands on the Building's services,
maintenance or facilities or will cause excessive traffic or
unacceptable increase in density of traffic of the building.
12.8.3 Less than fifty (50%) percent of the Rentable Area Of The
Building is then rented.
12.9 As used herein, "Landlord's Consent Requirements" shall mean the
following minimum requirements which must be met by Tenant before Landlord
shall consent to an assignment or subletting of all or part of the
Premises:
12.9.1 The assignment or subletting shall be at any one time to
no more than one (1) subtenant or assignee.
12.9.2 The assignment or subletting shall be for not less than
3,687 rentable square feet.
12.9.3 The assignment or subletting shall be for a term of not
less than thirty six (36) months unless the unexpired portion of
such Term of this Lease shall be less than thirty six (36)
months, in which event for the unexpired portion or such Term.
12.9.4 The assignment or subletting shall not be to a then
current Tenant or occupant of the Building if there is available
space of a size sufficient to satisfy such tenant's or
occupant's requirements.
12.10 If the Landlord shall consent to any subletting or assignment, in
accord with the terms of this ARTICLE, one hundred percent of any rents
received by the Tenant from such assignee or subtenant. in excess of the
rents or other sums required to be paid by Tenant to Landlord, shall be
paid by Tenant to Landlord.
12.11 Tenant shall reimburse Landlord for Landlord's costs and expenses
(including without limitation the charges of any outside architectural,
engineering, accounting or legal professionals retained by Landlord to
review the proposed assignment or sublease, if any) incurred by Landlord
in connection with any proposed subletting or assignment by Tenant. The
amount of such costs and expenses shall be deemed to be Additional Rent
under the terms of this Lease and shall be payable by Tenant upon demand,
regardless of whether Landlord consents to or denies such assignment or
sublease or elects to cancel this Lease as provided in paragraph 12.4
above.
12.12 Neither the Tenant nor any other person having an interest in the
possession, use, occupancy or utilization of the Premises or any other
portion of the Real Property shall enter into any lease, sublease,
license, concession or other agreement for the use, occupancy or
utilization of space in the Premises or any other portion of the Real
Property which provides for any rental or other payment for such use,
occupancy or utilization based in whole or in part upon the net income or
profits derived from any person from the space in the Premises or any
other portion of the Real Property so leased, used, occupied or utilized,
other than an amount based upon a fixed percentage or percentages of gross
receipts or gross sales.
ARTICLE XIII
13. SURRENDER
13.1 Upon the Termination Date or prior expiration of the Term, Tenant
shall peaceably and quietly quit and surrender to Landlord the Premises,
broom clean, in as good condition as on the Commencement Date, ordinary
wear and tear, repairs and replacements by Landlord, alterations,
additions, and improvements permitted hereunder, excepted, free and clear
of all occupancies. Tenant's obligations to observe or perform this
covenant shall survive the Termination Date or prior expiration of the
Term. If the Termination Date falls on a Sunday or a legal holiday, this
Lease shall expire at 12 noon on the business day first preceding said
date.
ARTICLE XIV
14. HOLDING OVER
14.1 If Tenant holds possession of the Premises beyond the Termination
Date or prior expiration of the Term, Tenant shall become a tenant from
month-to-month at Double the Basic Rent and Additional Rent payable
hereunder and upon all other terms and conditions of this Lease, and shall
continue to be such month-to-month tenant until such tenancy shall be
terminated by Landlord and such possession shall cease. Nothing contained
in this Lease shall be construed as a consent by Landlord to the occupancy
or possession by Tenant of the Premises beyond the Termination Date or
prior expiration of the Term, and Landlord, upon said Termination Date or
prior expiration of the Term shall be entitled to the benefit of all legal
remedies that now may be in force or may be hereafter enacted relating to
the speedy repossession of the Premises. In addition, Tenant shall
indemnify and hold Landlord harmless from and against any loss, cost,
liability or expense, including, but not limited to, attorney's fees
resulting from such failure to vacate and also including any claims made
by any succeeding tenant founded on such failure to vacate.
ARTICLE XV
15 ELECTRICITY
15.1 Throughout the Term, Landlord agrees to redistribute electrical
energy to the Premises (not exceeding the present electrical capacity at
the Premises), upon the following terms and conditions: (1) Tenant shall
pay for such electrical energy as provided by this Paragraph; (2) Landlord
shall not be liable in any way to Tenant, Tenant's agents, servants,
employees, invitees or licensees, for any loss, damage or expense which
Tenant, Tenant's agents, servants, employees, invitees or licensees may
sustain or incur as a result of any failure, defect, or change in the
quantity or character of electricity furnished to the Premises or if such
quantity or character of electricity furnished to the Premises is no
longer available or suitable for Tenant's requirements or due to any
cessation, diminution or interruption of the supply thereof.
15.2 The Tenant shall, at its own cost and expense, pay all service and
usage charges for gas, electric, sprinkler, or any other utility which is
separately metered and billed to Tenant. With respect to any utility which
is not separately metered and billed to Tenant, Tenant shall pay the
charge assessed to Tenant by Landlord based upon Tenant's Proportionate
Share. Landlord shall arrange for separate metering or sub-metering of
Tenant's actual electricity usage (except for common areas) and Tenant
shall pay to the utility or Landlord, as the case may be, the charges
billed.
15.3 In no event shall Landlord be required or obligated to increase the
electrical capacity of any portion of the Building's system, or to provide
any additional wiring or capacity to meet Tenant's additional
requirements, if any, beyond that which was servicing the Premises at the
Commencement of the Lease Term. Tenant's use of electric energy in the
Premises shall not at any time exceed the capacity of any of the
electrical conductors and equipment in or serving the Premises. Tenant
shall make no alteration to the existing electrical equipment or connect
any fixtures, appliances, or equipment without the prior written consent
of Landlord in each instance. Should Landlord grant such consent, all
additional risers or other equipment required therefore shall be provided
by Landlord and the cost thereof shall be paid by Tenant upon Landlord's
demand.
15.4 Landlord shall not be liable in the event of any interruption in the
supply of electricity, or for any consequence thereof and Tenant agrees
that such supply may be interrupted for inspection, repairs, replacement
and in emergencies.
15.5 The failure of Landlord to furnish any service hereunder shall not be
construed as a constructive eviction of Tenant and shall not excuse Tenant
from failing to perform any of its obligations hereunder and shall not
give Tenant any claims against Landlord for damages for failure to furnish
such service.
ARTICLE XVI
16. QUIET ENJOYMENT
16.1 Landlord covenants and agrees that, upon the performance by Tenant of
all of the covenants, agreements, and provisions hereof on Tenant's part
to be kept and performed, Tenant shall have, hold, and enjoy the Premises,
subject and subordinate to the rights set forth in ARTICLE XXI, free from
any interference whatsoever by, from, or through the Landlord, provided,
however, that no diminution or abatement of the Basic Rent, Additional
Rent, or other payment to Landlord shall be claimed by or allowed to
Tenant for inconvenience or discomfort arising from the making of any
repairs, improvements or additions to the Premises or the Real Property,
nor for any space taken to comply with any law, ordinance, or order of any
governmental authority, except as and if provided for herein.
ARTICLE XVII
17. AIR AND LIGHT
17.1 This Lease does not grant any rights to air and light.
ARTICLE XVIII
18. DEFAULT
18.1 Each of the following, whether occurring before or after the
Commencement Date, shall be deemed a Default by Tenant and a breach of
this Lease: (1) the filing of a petition by or against Tenant for
adjudication as a bankrupt, or for reorganization, or for arrangement
under any bankruptcy act; (2) the commencement of any action or proceeding
for the dissolution or liquidation of Tenant, whether instituted by or
against Tenant, or for the appointment of a receiver or trustee of the
property of Tenant under any state or federal statute for relief of
debtors; (3) the making by Tenant of an assignment for the benefit of
creditors; (4) the suspension of business by Tenant or any act by Tenant
amounting to a business failure; (5) the filing of a tax lien or a
mechanics' lien against any property of Landlord or Tenant, which filing
is not bonded or removed within five (5) days after notice thereof from
Landlord; (6) Tenant's causing or permitting the Premises to be vacant,
for a period in excess of ten (10) days or abandonment of the Premises by
Tenant; (7) failure by Tenant to pay Landlord when due the Basic Rent,
Additional Rent or any other sum by the time required by the terms of this
Lease which failure is not cured within five (5) days after notice thereof
from Landlord; (8) a failure by Tenant in the performance of any other
term, covenant, agreement, or condition of this Lease on the part of
Tenant to be performed, which failure, if curable, is not cured within
fifteen (15) days (or such longer period as may be necessary, so long as
Tenant is diligently and continuously undertaking such cure) after notice
thereof from Landlord; (9) a default by Tenant under any other lease or
sublease with Landlord.
18.2 Notwithstanding anything herein to the contrary, Landlord shall not
be required to provide Tenant with more than two (2) notices of default
during the Term of this Lease, regardless of the cause giving rise to, or
the nature of the default. Tenant herein waives any notice requirements
found elsewhere in this Lease beyond the number described herein.
ARTICLE XIX
19. LANDLORD'S RIGHTS UPON TENANT'S DEFAULT
19.1 Upon a Default by Tenant the following provisions shall apply and
Landlord shall have the rights and remedies set forth therein which rights
and remedies may be exercised upon or at any time following the occurrence
of a Default unless, prior to such exercise, Landlord shall agree in
writing with Tenant that the Default has been cured by Tenant in all
respects.
19.2 Except for the first two (2) occurrances of Defaults which Tenant
immediately cures within the applicable cure period, Landlord shall have
the right to accelerate all Basic Rent and all expense installments due
hereunder and otherwise payable in installments over the remainder of the
Term, and, at Landlord's option, any other Additional Rent and/or other
charges to the extent that such Additional Rent and/or other charges can
be determined and calculated to a fixed sum; and the amount of accelerated
rent and other charges, without further notice or demand for payment,
shall be due and payable by Tenant within five (5) days after Landlord has
so notified Tenant. Additional Rent and/or other charges which has not
been included, in whole or in part, in accelerated rent, shall be due and
payable by Tenant during the remainder of the Term, in the amounts and at
the times otherwise provided for in this Lease.
Notwithstanding the foregoing or the application of any rule of law based
on election of remedies or otherwise, if Tenant fails to pay the
accelerated rent in full when due, Landlord thereafter shall have the
right by notice to Tenant, (i) to terminate Tenant's further right to
possession of the Premises and (ii) to terminate this Lease under
paragraph 19.3 below; and if Tenant shall have paid part but not all of
the accelerated rent, the portion thereof attributable to the period
equivalent to the part of the Term remaining after Landlord's termination
of possession or termination of this Lease shall be applied by Landlord
against Tenant's obligations owing to Landlord as determined by the
applicable provisions of paragraphs 19.4 and 19.5 below.
19.3 By notice to Tenant, Landlord shall have the right to terminate this
Lease as of a date specified in the notice of termination and in such
case, Tenant's rights, including any based on any option to renew, to the
possession and use of the Premises shall end absolutely as of the
termination date specified in such notice; and this Lease shall also
terminate in all respects except for the provisions hereof regarding
Landlord's damages and Tenant's liabilities arising prior to, out of and
following the Default and the ensuing termination.
Following such termination (as well as upon any other termination of this
Lease by expiration of the Term or otherwise) Landlord immediately shall
have the right to recover possession of the Premises; and to that end,
Landlord may enter the Premises and take possession, without the necessity
of giving Tenant any notice to quit or any other further notice, with or
without legal process or proceedings, and in so doing Landlord may remove
Tenant's property (including any improvements or additions to the Premises
which Tenant made, unless made with Landlord's consent which expressly
permitted Tenant to not remove the same upon expiration of the Term), as
well as the property of others as may be in the Premises, and make
disposition thereof in such manner as Landlord may deem to be commercially
reasonable and necessary under the circumstances.
19.4 Unless and until Landlord shall have terminated this Lease under
paragraph 19.2 above, Tenant shall remain fully liable and responsible to
perform all of the covenants and to observe all the conditions of this
Lease throughout the remainder of the Term; and, in addition and without
regard to whether Landlord shall have terminated this Lease, Tenant shall
pay to Landlord, upon demand and as Additional Rent, the total sum of all
costs, losses and expenses, including reasonable counsel fees, as Landlord
incurs, directly or indirectly, because of any Default having occurred. If
Landlord either terminates Tenant's right to possession without
terminating this Lease or terminates this Lease and Tenant's leasehold
estate as above provided, Landlord shall have the unrestricted right to
relet the Premises or any part(s) thereof to such tenant(s) on such
provisions and for such period(s) as Landlord may deem appropriate. It is
understood that Landlord shall have no obligation to have the Premises
available for reletting or otherwise endeavor to relet so long as Landlord
(or any related entity) has other comparable vacant space or property
available for leasing to others and that notwithstanding non-availability
of other space or property Landlord's obligation to mitigate damages shall
be limited to such efforts as Landlord, in its sole reasonable judgment,
deems appropriate.
19.5 The damages which Landlord shall be entitled to recover from
Tenant shall be the sum of:
(1) all Basic Rent, Additional Rent and other charges accrued
and unpaid as of the termination date; and
(2) (i) all costs and expenses incurred by Landlord in
recovering possession of the Premises, including removal and
storage of Tenant's property, improvements and alterations
therefrom, (ii) the costs and expenses of restoring the Premises
to the condition in which the same were to have been surrendered
by Tenant as of the expiration of the Term, or, in lieu thereof,
the costs and expenses of remodeling or altering the Premises or
any part for reletting the same, (iii) the costs of reletting
(exclusive of those covered by the foregoing (ii)), including
brokerage fees and reasonable counsel fees, and (iv) any
overhead expenses related to the vacancy of the Premises for
each month or part between the date of termination and the
reletting of the entire Premises; and
(3)all Basic Rent, Additional Rent and other charges to the
extent that the amount(s) of Additional Rent or other charges
have been determined otherwise payable by Tenant over the
remainder of the Term as originally stated in this Lease
notwithstanding any earlier termination of this Lease by
Landlord due to Tenant's default.
Less, deducting from the total determined under subparagraphs
(1), (2) and (3), all rent and all other Additional Rent to the
extent determinable as aforesaid, (to the extent that like
charges would have been payable by Tenant) which Landlord
receives from other tenant(s) by reason of the leasing of the
Premises or part during or attributable to any period falling
within the otherwise remainder of the Term.
The damage sums payable by Tenant under the preceding
provisions of this paragraph 19.5 shall be payable on demand
from time to time as the amounts are determined. In lieu of the
damages payable in subparagraph (3) of this paragraph 19.5, in
the event Landlord so elects or relets the Premises (or part
thereof) during or attributable to any period falling within
the otherwise remainder of the Term, Landlord shall be entitled
to recover from Tenant, in a single action, as liquidated
damages for such sum (in addition to the damages otherwise set
forth herein), an amount calculated to equal the damages set
forth in such subparagraph (4), provided that for the purpose
of calculating said liquidated damage amount, Additional Rent
and other charges shall be fixed, from the date of such
election or commencement of reletting, as the amount of
Additional Rent and other charges which would have been paid by
Tenant, had Tenant not defaulted, as of the date of such
election or commencement of reletting and, the deduction, if
any, therefrom as set forth above shall be the fair market
rental value of the Premises at the date of such election or
the then fixed rent payable by the terms of such reletting as
the case may be.
19.6 Any sums payable by Tenant hereunder, which are not paid
after the same shall be due, shall bear interest from that day
until paid at the rate of interest stated at paragraph 1.3.
19.7 Landlord shall be entitled to injunctive relief in case of
the violation, or attempted or threatened violation, of any
covenant, agreement, condition or provision of this Lease, or
to a decree compelling performance of any covenant, agreement,
condition or provision of this Lease.
19.8 In addition to any applicable lien, none of which are to
be deemed waived by Landlord, Landlord shall have, at all
times, and Tenant hereby grants to Landlord, a valid lien and
security interest to secure payment of all rentals and other
sums of money becoming due under this Lease from Tenant, and to
secure payment of any damages or loss which Landlord may suffer
by reason of the breach by Tenant of any covenant, agreement or
condition contained herein, upon all goods, wares, equipment,
fixtures, furniture, improvements and other personal property
of Tenant presently or which may hereafter be situated on the
Premises, and all proceeds therefrom, and such property shall
not be removed therefrom without the consent of Landlord until
all arrearages in rent as well as any and all other sums of
money then due to Landlord hereunder shall first have been paid
and discharged and all covenants, agreements and conditions
hereof have been fully complied with and performed by Tenant.
Upon the occurrence of an event of default by Tenant, Landlord
may, in addition to any other remedies provided herein, enter
upon the Premises and take possession of any and all goods,
wares, equipment, fixtures, furniture, improvements and other
personal property of Tenant situated on the Premises, without
liability for trespass or conversion, and sell the same at
public or private sale, with or without having such property at
the sale, after giving Tenant reasonable notice of the time and
place of any public sale or of the time after which any private
sale is to be made, at which sale Landlord or its assigns may
purchase unless otherwise prohibited by law. Unless otherwise
provided by law, and without intending to exclude any other
manner of giving Tenant reasonable notice, the requirement of
reasonable notice shall be met if such notice is given in the
manner prescribed in ARTICLE XXVI of this Lease at least five
(5) days before the time of sale. The proceeds from any such
disposition, less any and all expenses connected with the
taking of possession, holding and selling of the property
(including reasonable attorney's fees and other expenses),
shall be applied as a credit against the indebtedness secured
by the security interest granted herein. Any surplus shall be
paid to Tenant or as otherwise required by law; and Tenant
shall pay any deficiencies forthwith. Upon request by Landlord,
Tenant agrees to execute and deliver to Landlord a financing
statement in form sufficient to perfect the security interest
of Landlord in the aforementioned property and proceeds thereof
under the provisions of the Uniform Commercial Code in force in
the State of New Jersey.
19.9 For the purpose of this ARTICLE XIX, in the event of
Tenant's voluntary or involuntary bankruptcy, should the Tenant
as Debtor-in-Possession or a Trustee appointed by the
Bankruptcy Court, attempt to provide adequate assurance of
Tenant's ability to continue to operate out of the Premises,
adequate assurance shall mean, at a minimum, the following:
(i) The Trustee or Debtor-in-Possession has and will
continue to have sufficient unencumbered assets after the
payment of all secured obligations and administrative
expenses to assure Landlord that the Trustee or
Debtor-in-Possession will have sufficient funds to fulfill
the obligations of Tenant under this Lease, and to keep the
Demised Premises properly staffed with sufficient employees
to conduct a fully operational, actively promoted business
in the Premises; and
(ii) The Bankruptcy Court shall have entered an Order
segregating sufficient cash payable to Landlord and/or the
Trustee or Debtor-in-Possession shall have granted a valid
and perfected first lien and security interest and/or
mortgage in property of Tenant, Trustee or
Debtor-in-Possession, acceptable as to value and kind to
Landlord, to secure to Landlord the obligation of the
Trustee or Debtor-in-Possession to cure the monetary and/or
non-monetary defaults under this Lease within the time
periods set forth above.
ARTICLE XX
20. LANDLORD'S REMEDIES CUMULATIVE; EXPENSES
20.1 All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other right or remedy allowed by
law. For the purposes of any suit brought or based hereon, at Landlord's
option, this Lease shall be construed to be a divisible contract, to the
end that if Landlord so elects, successive actions may be maintained on
this Lease as successive periodic sums mature hereunder.
20.2 Tenant shall pay, upon demand, all of Landlord's costs, charges and
expenses, including reasonable fees of counsel, agents and others retained
by Landlord, incurred in enforcing Tenant's obligations hereunder.
ARTICLE XXI
21. SUBORDINATION, ESTOPPEL AND ATTORNMENT
21.1 This Lease is subject and subordinate to the lien of any and all
mortgages (which term shall include both construction and permanent
financing and shall include deeds of trust and similar security
instruments) and all ground or other underlying leases from which
Landlord's title is derived ("ground leases") which may now or hereafter
encumber or otherwise affect the Real Property or Landlord's leasehold
therein, and to any and all renewals, extensions, modifications, recasting
or refinancing thereof. This clause shall be self operative and no further
instrument of subordination need to be required by any mortgagee, trustee
or ground lessee. Nevertheless, if requested by Landlord, Tenant shall
promptly execute such subordination certificate or other subordination
document requested. Landlord may execute said certificate or other
document on behalf of Tenant if Tenant does not execute said certificate
or other document within five (5) days after receiving it and Tenant
hereby designates Landlord its attorney-in-fact for such purpose. Tenant
agrees that if any proceedings are brought for the foreclosure of any such
mortgage, Tenant if requested to do so by the purchaser at the foreclosure
sale or the grantee of any deed given in lieu of foreclosure, shall attorn
to such purchaser or grantee, shall recognize the purchaser or grantee as
the Landlord under this Lease, and shall make all payments required
hereunder to such new Landlord without any deduction or set-off of any
kind whatsoever. Tenant agrees that if any proceedings are successfully
brought for the termination of any ground lease, or if any other remedy is
successfully exercised by any ground lessor whereby the ground lessor
succeeds to the interests of tenant under the ground leases, Tenant, if
requested to do so by the ground lessor, shall attorn to the ground
lessor, shall recognize the ground lessor as the Landlord under this
Lease, and shall make all payments required hereunder to such new Landlord
without deduction or set-off. Anything contained in the provisions of this
Section to the contrary notwithstanding any such Mortgagee may at any time
subordinate the lien of its Mortgage to the operation and effect of this
Lease without obtaining the Tenant's consent thereto, by giving the Tenant
written notice thereof, in which event this Lease shall be deemed to be
senior to such Mortgage without regard to their respective date of
execution, delivery and/or recordation among the land records of the State
of New Jersey and thereafter such Mortgagee shall have the same rights as
to this Lease as it would have had, were this Lease executed and delivered
before the execution of such Mortgage.
21.2 Tenant agrees at any time and from time to time upon not less than
five (5) days prior written request by Landlord, to execute, acknowledge
and deliver to Landlord a statement in writing certifying that this Lease
is unmodified and in full force and effect (or, if there have been
modifications, that the same are in full force and effect as modified and
stating the modifications) and the dates to which the Basic Rent and
Additional Rent have been paid, and stating whether Tenant knows of any
default by Landlord under this Lease, and, if so , specifying each such
known default, it being intended that any such statement delivered
pursuant to this paragraph 21.2 may be relied upon by a prospective
purchaser of Landlord's interest or a mortgagee of Landlord's interest or
assignee of any mortgage upon Landlord's interest in the Real Property.
21.3 If, in connection with obtaining financing on the premises, the real
property, or improvements thereto, the Landlord's mortgage lender shall
request reasonable modifications to this Lease as a condition to such
financing, Tenant agrees to promptly execute said modification document
incorporating such modifications, provided that said modifications do not
increase the monetary obligations of the Tenant or materially adversely
affect the Tenant's use of the Premises.
ARTICLE XXII
22. DAMAGE BY FIRE OR OTHER CASUALTY
22.1 If the Premises shall be damaged by fire or other casualty not
arising from the fault or negligence of Tenant or its servants, agents,
employees, invitees or licensees or, if such damage, irrespective of
cause, shall be insured: (1) except as otherwise provided in sub-section
(2) hereof, the damage shall be repaired by and at the expense of Landlord
(subject to Landlord's receipt of applicable insurance proceeds) and the
Basic Rent and Additional Rent until such repairs shall be made shall be
equitably abated according to the part of the premises which is usable by
Tenant, unless such damage was caused by the fault or negligence of Tenant
or its servants, agents, employees, invitees, or licensees, in which case
no abatement of Basic Rent or Additional Rent shall be made. Landlord
agrees, at its expense, to repair promptly any damage to the Premises,
except that Tenant agrees to repair or replace its own furniture,
furnishings and equipment. No penalty shall accrue due to an Excusable
Delay. (2) If the Premises are totally damaged or are rendered wholly
untenantable by fire or other casualty, or if Landlord's architect
certifies that it cannot be repaired within one hundred twenty (120) days
of the casualty or if Landlord shall decide not to restore or repair the
same, or shall decide to demolish the Building or to rebuild it, then
Landlord shall, within ninety (90) days after such fire or other casualty,
give Tenant a notice of such circumstance or decision, and thereupon the
Term shall expire ten (10) days after such notice is given, and Tenant
shall vacate the Premises and surrender the same to Landlord. (3) If
Landlord fails to complete the repair and restoration of the Premises
within six (6) months from the date of the casualty (subject to Excusable
Delays) then Tenant shall have the right to cancel and terminate this
Lease upon the delivery of a notice to Landlord delivered within fifteen
(15) days after the expiration of the aforesaid six (6) months period. (4)
Landlord agrees that it shall diligently pursue all repair and restoration
work required on its part to be completed hereunder.
ARTICLE XXIII
23. MUTUAL WAIVER OF SUBROGATION
23.1 Subject to paragraph 10.11 herein, each party hereby waives any and
all rights of recovery against the other for or arising out of damage to
or destruction of the Premises or the Real Property and any other property
of the other from causes to the extent insured under standard fire and
extended coverage insurance policies or endorsements to the extent that
its insurance policies then in effect permit such waiver. If at any time
during the Term any insurance carrier which shall have issued a policy to
either of the parties covering the Real Property, the Premises or any of
the property of Tenant, shall refuse to consent to the waiver of the right
to recovery with respect to any loss payable under such policy, or if such
carrier shall consent to such waiver only upon the payment of an
additional premium (unless such additional premium is voluntarily paid by
one of the parties hereto), or shall cancel a consent previously given, or
shall cancel or threaten to cancel any policy previously issued and then
in full force and effect, then in any such event, the waiver in this
paragraph 23.1 shall thereupon be of no further force and effect as to the
loss, damage or destruction covered by such policy except as hereinafter
provided. If, however, at any time thereafter such consent shall be
obtained therefore from any existing or any substitute insurance carrier,
the waiver hereinabove provided for shall again become effective.
ARTICLE XXIV
24. CONDEMNATION
24.1 If the Premises shall be acquired or condemned by eminent domain
proceeding, or by giving of a deed in lieu of thereof, then and in that
event, the Term shall cease and terminate from the date of title-vesting
pursuant to such proceeding or agreement. If only a portion of the
Premises shall be so acquired or condemned, this Lease shall cease and
terminate at Landlord's option, and if such option is not exercised by
Landlord, an equitable adjustment of the Basic Rent and Additional payable
by Tenant for the remaining portion of the Premises shall be made. If 25 %
or more of the Premises shall be acquired or condemned, the Tenant shall
also have the option to terminate this Lease. In the event of a
termination under this ARTICLE XXIV, other than for the adjustment of
Basic Rent and Additional Rent as hereinbefore mentioned, Tenant shall
have no claim whatsoever against Landlord including(without limitation)
any claim for the value of any unexpired Term; nor shall Tenant be
entitled to claim or receive any portion of any amount that may be awarded
as damages or paid as a result of such proceedings or as the result of any
agreement made by the condemning authority with Landlord. Tenant shall
assert no claim, including (without limitation) any claim for the value of
any unexpired Term, against the condemning authority that may in any way
impair or diminish Landlord's claims against such condemning authority.
ARTICLE XXV
25. CHANGES SURROUNDING BUILDING
25.1 This Lease shall not be affected or impaired by any change,
alteration or addition in, to or of any sidewalk, alley, street, landscape
or structure adjacent to or around the Building or Real Property, except
as provided in ARTICLE XXIV.
25.2 Any changes in the arrangement or location of any public portion of
the Building not contained in the Premises or any part thereof shall not
constitute an eviction or disturbance of Tenant's use or possession of the
Premises provided such change does not unreasonably interfere with
Tenant's use of or ingress to and from the Premises and Landlord shall be
free to make such changes or alterations without liability to Tenant
25.3 Landlord may designate a name and address for the Building and may
change the same from time to time as Landlord sees fit or as may be
required by law.
ARTICLE XXVI
26. NOTICES
26.1 Except as may be otherwise expressly provided in this Lease, notices
by either party to the other shall be in writing and shall be sent by
registered or certified mail, by overnight mail by a reputable overnight
delivery service, by facsimile transmission or by hand delivery, addressed
to Landlord or Tenant at their respective addresses hereinabove set forth
(or to the appropriate facsimile number in the case of delivery by
facsimile transmission) or to such other address as either party shall
hereafter designate by notice as aforesaid. All notices properly addressed
shall be deemed served upon receipt by the addressee or, in the case of
notice by mail, three (3) days after the date of mailing, except that
notice of change of address shall not be deemed served until received by
the addressee.
ARTICLE XXVII
27. NO WAIVER
27.1 No delay or forbearance by Landlord, no act or undertaking by
Landlord and/or no waiver by Landlord of any breach by Tenant of any of
the terms, covenants, agreements, or conditions of this Lease shall be
deemed to constitute a waiver of any current (unless Landlord so agrees in
writing) or succeeding breach thereof, or a waiver of any breach of any of
the terms, covenants, agreements and conditions herein contained.
27.2 No employee of Landlord or of Landlord's agents shall have any
authority to accept the keys of the Premises prior to the Termination Date
and the delivery of keys to any employee of Landlord or Landlord's agents
shall not operate as an acceptance of a termination of this Lease or an
acceptance of a surrender of the Premises.
27.3 The receipt by Landlord of the Basic Rent and Additional Rent with
knowledge of the breach of any covenant of this Lease shall not be deemed
a waiver of such breach. No payment by Tenant or receipt by Landlord of a
lesser amount than the monthly Basic Rent or a lesser amount of the
Additional Rent then due shall be deemed to be other than on account of
the earliest stipulated amount then due, nor shall any endorsement or
statement on any check or any letter or other instrument accompanying any
check or payment as Basic Rent or Additional Rent be deemed an accord and
satisfaction and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such Basic Rent or
Additional Rent or pursue any other remedy provided in this Lease.
27.4 The failure of Landlord to enforce any of the Rules and Regulations
as may be set by Landlord from time to time against Tenant or against any
other tenant in the Building shall not be deemed a waiver of any such Rule
or Regulation.
ARTICLE XXVIII
28. LANDLORD'S RESERVED RIGHTS
28.1 Landlord reserves the following rights: (1) if during or prior to the
last ninety (90) days of the Term Tenant vacates the Premises, to
decorate, remodel, repair, alter or otherwise prepare the Premises for
re-occupancy and, (2) to masterkey all locks to the Premises
28.2 Landlord may enter upon the Premises and may exercise either of the
foregoing rights hereby reserved without being deemed to have caused an
eviction or disturbance of Tenant's use and possession of the Premises and
without being liable in any manner to Tenant.
ARTICLE XXIX
29. LANDLORD'S LIABILITY
29.1 Landlord, as well as Landlord's owners, servants, employees, agents,
or licensees shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain, snow, or leaks from any part of the Building or
from the pipes, appliances, plumbing, or the roof, street, subsurface, or
from any other place or by dampness, offensive odors or noise or by any
other cause of whatsoever nature, unless caused by or due to the gross
negligence of Landlord or its agents.
29.2 Should Tenant enter the Premises prior to the Commencement of this
Lease for the purpose of making any installations, alterations or
improvements as may be permitted by Landlord, Landlord shall have no
liability or obligation for the care or preservation of Tenant's property,
for personal injury, or otherwise.
29.3 Tenant agrees to take such steps, at its own cost, as it may deem
necessary and adequate for the protection of itself, and its agents,
employees, invitees, and licensees against personal injury and property
damage, by insurance, as a self-insurer or otherwise.
ARTICLE XXX
30. TENANT'S LIABILITY
30.1 Tenant shall hold Landlord harmless from and indemnify Landlord for
all expenses, damages, or fines, incurred or suffered by Landlord by
reason of any breach, violation, or non-performance by Tenant, its agents,
servants, employees, invitees, or licensees of any covenant or provision
of this Lease, or by reason of damage to persons or property caused by
moving property of or for Tenant in or out of the Building, or by the
installation or removal of furniture or other property of or for Tenant or
by reason of or arising out of the carelessness, negligence or improper
conduct of Tenant, or its agents, servants, employees, invitees, and
licensees in the use or occupancy of the Premises, Building or Real
Property. Any such expense shall be deemed Additional Rent, due in the
next calendar month after it is incurred.
ARTICLE XXXI
31. TENANT'S INSURANCE
31.1 Notwithstanding the agreement in paragraph 29.2 above, and in
addition thereto, Tenant covenants to provide on or before the
Commencement Date for the benefit of Landlord and Tenant, a comprehensive
policy of liability insurance to include hired and non-owned automobile
coverage, protecting Landlord and Tenant against any liability whatsoever
occasioned by any occurrence on or about the Premises or any appurtenances
thereto. Such policy is to be written by insurance companies admitted to
do business in the State of New Jersey with a Best's Rating of A or better
and a financial size of 7 or better. The limits of liability thereunder
shall not be less than the amount of Two Million ($2,000,000.00) Dollars
per occurrence and per location with respect to any one person, with
respect to any one accident, and with respect to property damage and with
a Four Million ($4,000,000.00) Dollar aggregate. Such insurance may be
carried under a blanket policy covering the Premises and other locations
of Tenant, if any. In addition, Tenant covenants to provide on or before
the Commencement Date for the benefit of Landlord and Tenant, an
automobile policy for owned vehicles with a combined single limit (Bodily
Injury and Property Damage) of One Million ($1,000,000.00) Dollars per
occurrence.
31.2 Prior to the time such insurance is first required by this ARTICLE
XXXI to be carried by Tenant, and thereafter, at least thirty (30) days
prior to the expiration of any such policy, Tenant agrees to deliver to
Landlord either a duplicate original of the aforesaid policy or a
certificate evidencing such insurance, including the Landlord and the then
current managing agent as an additional insured, together with evidence of
payment for the policy. Said policy or certificate shall contain an
endorsement that such insurance may not be canceled except upon thirty
(30) days notice to Landlord.
31.3 Upon failure at any time on the part of Tenant to procure and deliver
to Landlord the policy or certificate of insurance, as hereinabove
provided, stamped "Premium Paid" by the issuing company at least thirty
(30) days before the expiration of the prior insurance policy or
certificate, if any, or to pay the premiums therefore, Landlord shall be
at liberty, from time to time, as often as such failure shall occur, to
procure such insurance and to pay the premium therefore, and any sums paid
for insurance by Landlord shall be and become, and are hereby declared, to
be Additional Rent hereunder for the collection of which Landlord shall
have all the remedies provided for in this Lease or by law for the
collection of rent. Payment by Landlord of such premium or the carrying by
Landlord of any such policy shall not be deemed to waive or release the
default of Tenant with respect thereto. Tenant's failure to provide and
keep in force the aforementioned insurance shall be regarded as a Default
hereunder entitling Landlord by exercise any or all of the remedies as
provided in this Lease in the event of Default.
ARTICLE XXXII
32. MECHANICS' LIENS
32.1 Subject to paragraph 18.1(5) herein, any mechanic's lien filed
against the Real Property for work claimed to have been done for, or
materials claimed to have been furnished to, Tenant shall be bonded or
discharged by Tenant within five (5) days after notice of filing, at
Tenant's expense. Notwithstanding anything herein to the contrary, Tenant
shall forever indemnify and hold Landlord harmless from and against any
and all claims arising from said liens including all costs, expenses,
losses, fines and penalties, including, without limitation, reasonable
attorneys fees related thereto or resulting therefrom. This clause shall
survive the Term of this Lease.
32.2 Neither Tenant nor anyone acting under color of authority of Tenant
shall have any power, right or authority to bind Landlord to any act,
contract or agreement which will impose, create or be deemed to be the
basis for the imposition of a mechanic's lien or any other lien or claim
upon or against the Premises, Building or Real Property or Landlord's
interest therein. Landlord shall have nor responsibility or liability to
Tenant or anyone acting under color of authority of Tenant, including, but
not limited to, any contractor, subcontractor, supplier, materialman,
xxxxxxx, or other person, firm or corporation who shall participate in the
construction of any improvements, additions, alterations, changes or
replacements in, on or to the Premises.
ARTICLE XXXIII
33. NOTICE OF FIRE AND ACCIDENTS
33.1 Tenant shall give Landlord immediate notice in case of fire or
accident on the Premises or, in case of fire or accident involving Tenant,
its servants, agents, employees, invitees, or licensees, in the Building
or on the Real Property.
ARTICLE XXXIV
34. RELEASE OF LANDLORD
34.1 The term "Landlord" as used in this Lease means only the owner for
the time being of the Real Property or the lessee of a lease of the Real
Property. In the event of any transfer of title to or lease of the Real
Property, the Landlord shall be and hereby is entirely freed and relieved
of all covenants and obligations of Landlord accruing from and after the
date of said transfer hereunder and this Lease shall be deemed and
construed as a covenant running with the Land without further agreement
between the parties or their successors in interest.
34.2 Landlord, as well as Landlord's owners, servants, employees, agents
or licensees shall be under no personal or recourse liability with respect
to any of the provisions of this Lease, and if Landlord is in breach or
default with respect to its obligations or otherwise, Tenant shall look
solely to the equity of Landlord in the Real Property for the satisfaction
of Tenant's remedies. It is expressly understood and agreed that
Landlord's liability under the terms, covenants, conditions, and
obligations of this Lease shall in no event exceed the loss of its equity
in the Real Property.
ARTICLE XXXV
35. USE OF SECURITY DEPOSIT
35.1 In the event of a default of Tenant in respect of any of the terms,
covenants or conditions of this Lease, without regard to any provision in
this Lease regarding notice to cure, Landlord may use, apply or retain the
whole or any part of the Security Deposit to the extent required for the
payment of any Basic Rent, Additional Rent, or any other sum as to which
Tenant is in default, or for any sum which Landlord may expend or may be
required to expend by reason of Tenant's Default in respect to any of the
terms, covenants, or conditions of this Lease, including but not limited
to, any damages or deficiency accrued before or after summary proceedings
or other re-entry by Landlord. In the event that Landlord may at any time
or from time to time use, apply or retain the whole or any part of the
Security Deposit as aforesaid, Tenant shall immediately restore the
Security Deposit to the sum thereof prior to any such use, application or
retention. In the event that Tenant shall fully and faithfully comply with
all of the terms, covenants, and conditions of this Lease, the remaining
amount of the Security Deposit shall be returned to Tenant, without
interest, after the Termination Date and after delivery of possession of
the entire Premises to Landlord.
35.2 In the event of a sale of the Real Property or a leasing thereof,
Landlord shall have the right to transfer the Security Deposit to the
vendee or lessee, as the case may be, and Landlord shall thereupon be
released by Tenant from all liability for the return of such Security
Deposit transferred to the new Landlord; and Tenant agrees to look to the
new Landlord solely for the return of the Security Deposit; and it is
agreed that the provisions thereof shall apply to every transfer or
assignment made of the Security Deposit to a new Landlord. Tenant further
covenants that it will not assign or encumber, or attempt to assign or
encumber the Security Deposit and that neither Landlord nor its successors
or assigns shall be bound by any such assignment, or attempted
encumbrance.
ARTICLE XXXVI
36. SIGNS
36.1 Tenant shall have the right and privilege of erecting at the Premises
only such exterior signs as are required by the Tenant for the purpose of
identifying the Tenant, provided that the Tenant obtains prior written
approval of Landlord, who shall have the absolute right to control the
size, material, design and content of such signs which signs shall be
consistent aesthetically with the signs erected or to be erected on or
adjacent to the Building of which the Premises are a part. The said signs
shall comply with the ordinances, rules, regulations, and/or standards of
any applicable governmental boards and bureaus having jurisdiction
thereof. The erection of such signs shall not cause any damage to the
Building or its improvements, and in any event Tenant shall be responsible
at its cost and expense for the repair of any such damage caused by sign
installation as hereinabove referred to. It is expressly understood and
agreed that the Tenant shall not erect roof signs, and at the termination
of the Term and any renewal term, Tenant, at its cost shall remove all
signs and repair all damage occasioned by said removal.
36.2 Landlord will erect and maintain a directory identifying all tenants
of the Building.
ARTICLE XXXVII
37. GLASS
37.1 The Tenant expressly covenants and agrees to immediately replace any
broken glass in the windows or other apertures of the Premises which may
become damaged or destroyed at its cost and expense, unless said damage is
the result of the acts of the Landlord, its agents, employees, servants
and business invitees. Tenant covenants and agrees that it will either
carry plate glass insurance or, in lieu thereof, Tenant will self insure
and will, at its own cost and expense, replace the said plate glass
hereinabove referred to. If Tenant obtains insurance coverage, it shall
furnish to Landlord a certificate of insurance evidencing such coverage
together with such renewals thereof, as shall be required during the Term
of the Lease.
ARTICLE XXXVIII
38. HAZARDOUS WASTE, AIR, WATER AND GROUND POLLUTION
38.1 Tenant hereby warrants that its Standard Industrial Classification
(SIC) code is . If Tenant's SIC code shall ever change it shall
immediately notify Landlord of such change. Tenant shall not (either with
or without negligence) cause or permit the escape, disposal or release of
any biological or chemically active or other hazardous substances, or
materials. Tenant shall not allow the storage or use of such substances or
materials in any manner not sanctioned by law or by the highest standards
prevailing in the industry for the storage and use of such substances or
materials, nor allow to be brought into the Premises, Building or Real
Property any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given
to Landlord of the identity of such substances or materials. Without
limitation, hazardous substances and materials shall include those
described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the
Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901
et seq., any applicable state or local laws and the regulations adopted
under these acts. If any lender or governmental agency shall ever require
testing to ascertain whether or not there has been release of hazardous
materials, then the reasonable costs thereof shall be reimbursed by Tenant
to Landlord upon demand as additional charges if such requirement applies
particularly to the Premises. In addition, Tenant shall execute
affidavits, representations and the like from time to time at Landlord's
request concerning Tenant's knowledge and belief regarding the presence of
hazardous substances or materials on the Premises. In all events, Tenant
shall indemnify Landlord in the manner elsewhere provided in this Lease
from any release of hazardous materials on the Premises occurring while
Tenant is in possession, or elsewhere if caused by Tenant or persons
acting under Tenant. The within covenants shall survive the expiration or
earlier termination of the Lease Term. The Tenant expressly covenants and
agrees to indemnify, defend, and save the Landlord harmless against any
claim, damage, liability, costs, penalties, or fines which the Landlord
may suffer as a result of Air, Water or Ground Pollution (hereinafter
referred to as ("Pollution") caused by the Tenant in its use of the
Premises. The Tenant covenants and agrees to notify the Landlord
immediately of any claim or notice served upon it with respect to any such
claim that the Tenant is causing Pollution; and the Tenant, in any event,
will take immediate steps to halt, remedy or cure any Pollution caused by
the Tenant by its use of the Premises. The foregoing covenant shall
survive the expiration or termination of the within Lease.
ARTICLE XXXIX
39. ISRA COMPLIANCE; CONDITION PRECEDENT TO ASSIGNMENT AND SUBLEASE
39.1 Tenant shall not cause the Premises to be used as an "Industrial
Establishment" as defined under the New Jersey Industrial Site Remediation
Act, N.J.S.A. 13:1K-6 et seq. ("the Act") and all regulations promulgated
pursuant to the Act. Tenant shall, at Tenant's own expense, comply with
the Act, Tenant shall, at Tenant's own expense, provide all information
within Tenant's control requested by Landlord or the Bureau of Industrial
Site Evaluation for the preparation of submissions, declarations, reports
and plans pursuant to the Act. If the New Jersey Department of
Environmental Protection (DEP) or any successor agency shall determine
that a clean-up plan be prepared and that a clean-up be undertaken because
of any spills or discharges of hazardous substances or wastes at the
Premises or elsewhere if Tenant or persons acting under Tenant or on
behalf of Tenant caused such release, then Tenant shall, at Tenant's own
expense, prepare and submit the required plans and carry out the approved
plans. Tenant shall indemnify, defend and save harmless Landlord from all
costs, expenses, fines, suits, procedures, claims and actions of any kind
arising out of or in any way connected with any such spills or discharges
of hazardous substances or wastes at the Premises or elsewhere if caused
by Tenant or persons acting under Tenant or on behalf of Tenant. Tenant's
obligations and liability under this Paragraph shall survive the Term of
this Lease and shall continue so long as Landlord remains responsible for
any spills or discharges or hazardous substances or wastes at the
Premises. Tenant also agrees to cooperate with the Landlord in obtaining
ISRA approval.
39.2 As a condition precedent to Tenant's right to sublet the Premises or
to assign this Lease, Tenant shall, at Tenant's own expense, first comply
with ISRA and all other Environmental Laws, and fulfill all of Tenant's
environmental obligations under this Lease pursuant to this ARTICLE which
also arise upon termination of Tenant's Lease Term. If this condition
shall not be satisfied, the Landlord shall have the right to withhold
consent to sublet or assignment.
ARTICLE XL
40. TENANT RELOCATION
40.1 Notwithstanding any other provisions of this Lease to the
contrary, the Landlord reserves the right, from time to time
upon 120 days advance written notice to the Tenant, to relocate
Tenant to equivalent substituted space of approximately equal
square footage in the Building. Such substituted space shall
then constitute the Premises under this Lease and this Lease
shall remain in full force and effect without modification
except as may be appropriate to take into account any
differences in the square footage of such substituted space. In
such event the Landlord shall pay all of Tenant's reasonable
costs of moving and reinstallation of telephone and other
equipment in the substituted space. In addition, Landlord shall
reimburse Tenant for decorating and preparation of the
substituted space, in such manner as shall be similar or equal
to that which existed in the Premises; and the reimbursement
costs shall be so limited.
40.2 In the event Tenant shall fail or refuse to relocate to
the substituted space when the same shall become available,
then and thereafter, during the period of Tenant's continued
occupancy in the Premises, Tenant shall be deemed and shall be
a holdover tenant of the Premises and shall be liable to
Landlord therefore as well as being liable to Landlord for its
tenancy of the substituted space.
ARTICLE XLI
41. NET RENT
41.1 It is agreed between Landlord and Tenant that, except as otherwise
specifically provided in this Lease, the Basic Rent shall be absolutely
net to Landlord, so that the Lease shall yield, net, to Landlord the Basic
Rent specified on Page One hereof in each month during the term of the
Lease, and any other costs or expense relating to the Leased Premises
which may arise or become due during or following the Term of this Lease,
shall be paid by the Tenant, in accordance with the terms hereof.
ARTICLE XLII
42. MISCELLANEOUS
42.1 ENTIRE AGREEMENT: This Lease contains the entire agreement between
the parties, and any attempt hereafter made to change, modify, discharge,
or effect an abandonment of it in whole or in part shall be void and
ineffective unless in writing and signed by the party against whom
enforcement of the change, modification, discharge, or abandonment is
sought.
42.2 JURY TRIAL WAIVER: Landlord and Tenant do hereby waive trial by jury
in any action, proceeding, or counterclaim brought by either of the
parties hereto against the other on any matter whatsoever arising out of
or in any connection with this Lease, the relationship of Landlord and
Tenant, Tenant's use or occupancy of the Premises, and/or any claim,
injury or damage, or any emergency or statutory remedy.
42.3 FORCE MAJEURE: If, by reason any circumstance or condition
constituting Excusable Delay, Landlord shall be unable to fulfill its
obligations under this Lease or shall be unable to supply a service which
Landlord is obligated to supply, this Lease and Tenant's obligation to pay
Basic Rent and Additional Rent hereunder shall in no way be affected,
impaired, or excused.
42.4 BROKER: Tenant represents that it has not dealt with any real estate
broker in connection with this Lease, other than the Broker. Tenant
indemnifies and holds Landlord harmless of and from any and all claims,
liabilities, costs, or damages Landlord may incur as a result of a breach
of this representation, or as a result of any claim asserted on the basis
of allegations that would involve (if true) a breach of this
representation.
42.5 SEPARABILITY: If any term or provision of this Lease or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application
of such term or provision to persons or circumstances other than those to
which it is held invalid or unenforceable, shall not be affected thereby
and all other terms and provisions of this Lease shall be valid and
enforced to the fullest extent permitted by law.
42.6 INTERPRETATION:
42.6.1 Whenever in this Lease any words of obligation or duty
are used, such words or expressions shall have the same force
and effect as though made in the form of covenants.
42.6.2 Words of any gender used in this Lease shall be held to
include any other gender, and words in singular number shall be
held to include the plural, when the sense requires.
42.6.3 All pronouns and any variations thereof shall be deemed
to refer to the neuter, masculine, feminine, singular, or
plural as the identity of the Tenant requires.
42.6.4 No rules of construction shall apply by reason of the
identity of the draftsperson of the Lease. No remedy or
election given by any provision in this Lease shall be deemed
exclusive unless so indicated, but each shall, wherever
possible, be cumulative with all other remedies in law or
equity except as otherwise specifically provided. Each
provision hereof shall be deemed both a covenant and a
condition and shall run with the land.
42.6.5 If, and to the extent that, any of the provisions of any
Rider to this Lease conflict or are otherwise inconsistent with
any of the preceding provisions of this Lease, or of the Rules
and Regulations appended to this Lease, whether or not such
inconsistency is expressly noted in the Rider, the provisions
of the Rider shall prevail, and in case of inconsistency with
said Rules and Regulations, shall be deemed a waiver of such
Rules and Regulations with respect to Tenant to the extent of
such inconsistency.
42.6.6 Tenant agrees that all of Tenant's covenants and
agreements herein contained providing for the payment of money
and Tenant's covenant to remove mechanics' liens shall be
deemed conditions as well as covenants, and that if default be
made in any such covenants, Landlord shall have all of the
rights provided for herein.
42.6.7 The parties mutually agree that the headings and
captions contained in this Lease are inserted for convenience
of reference only, and are not to be deemed part of or to be
used in construing this Lease.
42.6.8 The covenants and agreements herein contained shall,
subject to the provisions of this Lease, bind and inure to the
benefit of Landlord, its successors and assigns, and Tenant,
its successors and assigns except as otherwise provided herein.
42.6.9 It is further understood and agreed that wherever the
provisions of this Lease require that Landlord shall approve or
consent, Landlord agrees not to unreasonably withhold such
prompt approval and consent and wherever Tenant is required to
do anything to the satisfaction of Landlord it shall be deemed
except as set forth in ARTICLE XII that reasonable satisfaction
of Landlord will be sufficient.
42.6.10 This Lease has been executed and delivered in the State
of New Jersey and shall be construed in accordance with the
laws of the State of New Jersey, and Landlord and Tenant
acknowledge that all of the applicable statutes of the State of
New Jersey are superimposed on the rights, duties, and
obligations of Landlord and Tenant hereunder and this Lease
shall not otherwise provide that which said statutes prohibit.
42.6.11 Landlord has made no representations or promises with
respect to the Premises or the Real Property, except as
expressly contained herein. Tenant has inspected the Premises
and agrees to take the same in an "as is" condition, except as
otherwise expressly set forth. Landlord shall have no
obligation, except as herein set forth, to do any work in and
to the Premises to render them ready for occupancy and use by
Tenant.
42.6.12 Tenant shall not record this Lease or a memorandum
thereof.
42.7 FINANCIAL STATEMENTS: Tenant agrees at Landlord's request to file
periodically with the Landlord or its mortgagee(s) copies of such
financial information as is commercially reasonable in light of the
request.
42.8 PARKING: Tenant shall not use more than the number of undesignated
parking spaces allotted and referred to in this Lease. ARTICLE XLIII
43. LETTER OF CREDIT
43.1 (a) On or before execution of this Lease, Tenant shall deposit with
Landlord a Letter of Credit ("L/C") in the amount of nine thousand sixty three
dollars and eighty eight cents ($9,063.88) (as such amount may be reduced in
accordance with Section 43.6, the "L/C Amount") as security for the full and
punctual performance by Tenant of Tenant's covenants and obligations under this
Lease. Tenant may, at its option, convert the entire cash security deposit
balance to an L/C. If the amount referred to above and hereafter shall then mean
the new amount for all purposes.
(b) The L/C shall be (I) unconditional and irrevocable, (ii)
issued by a bank acceptable to Landlord, (iii) payable at a branch located in
New Jersey, (iv) payable to Landlord solely upon presentation of sight draft,
(v) transferable by the beneficiary without additional charge, (vi) payable in
multiple drafts, (vii) subject to Section 43.3, for a period commencing upon
issuance and expiring no earlier than (the "L/C Expiration Date") and (viii) in
form reasonably acceptable to Landlord.
43.2 If Tenant defaults in the performance and observance of any of the
terms, covenants and conditions of this Lease (including, without limitation,
the payment of Base Rent or, Additional Rent or any other sums due under this
Lease, beyond the expiration of any applicable notice and grace period, Landlord
may, at its option, draw upon the L/C, in whole or in part, or any funds then
being held by Landlord as security or Tenant's obligations under this Lease, and
use, apply or retain all or any portion of such money only to the extent
required for the payment of any Basic Rent, or Additional Rent or any other sum
as to which Tenant is in default whether such damages or deficiency accrue or
accrues before or after summary proceedings or re-entry by Landlord. If Landlord
draws upon the L/C of Credit, Tenant shall deposit with Landlord within five (5)
business days thereafter a supplemental or new L/C meeting the same requirements
set forth in Section 43.1 (a) and (b), or cash in credit issues on behalf of
Tenant and then held by Landlord pursuant to this Article XLIII plus the amount
of any cash deposited by Tenant (but excluding any cash proceeds of any L/C
drawn by Landlord) shall not be less than the L/C Amount. In the event Tenant
does not deposit with Landlord a supplemental or new L/C as provided
hereinabove, Tenant shall be considered in Default of the Lease and Landlord
reserves all of its rights as contained in this Lease.
43.3 Notwithstanding anything in Section 43.1(b) to the contrary, Tenant
may deliver a L/C that expires prior to the L/C Expiration Date, provided that
(i) such L/C shall be for a term of not less than one (1) year and expressly
provides that the L/C shall automatically be renewed for successive one-year
period unless the issuer shall have provided the beneficiary with written notice
of such non-renewal at least thirty (30) days prior to the then expiration date
of the L/C and (ii) at least thirty (30) days prior to the expiration of said
L/C, Tenant shall deliver to Landlord a supplemental or new L/C meeting the same
requirements set forth in Section 43.1(b). The failure of Tenant to timely
deliver a new or supplemental L/C in accordance with the provisions of the
Article XLIII or Landlord's receipt of notice from the issuing bank that the L/C
will not be renewed shall entitle Landlord to draw down the L/C and hold and
apply such proceeds to Tenant on the terms and conditions of this Article XLIII.
43.4 (a) If, at the L/C Expiration Date, Landlord has not drawn upon the
L/C (unless Landlord shall have been prevented or restrained from doing so by
the order of a court of jurisdiction), the L/C shall be returned to Tenant
within thirty (30) business days thereafter.
(b) If, at the L/C Expiration Date, Landlord has the L/C drawn
upon by Landlord, the proceeds which shall not be used, applied or retained by
Landlord pursuant to Section 43.2 shall be returned to Tenant.
43.5 In the event of a sale of the Building, Landlord shall transfer the
L/C and the unutilized proceeds of any draw down thereof to the transferee and
upon such transfer Landlord shall thereupon be released by Tenant from all
liability for the return of such security. Tenant shall look solely to the new
landlord for the return of the security. The provisions hereof shall apply to
every transfer or assignment made of the security to a new landlord. If sixty
(60) days prior to the date of such sale, Landlord shall be holding the L/C,
Tenant shall upon thirty (30) days prior notice deliver a substitute L/C meeting
the same requirements set forth in Section 43.1(b) and naming the new landlord
as the new beneficiary thereof provided that Landlord simultaneously deliver to
Tenant (or to the issuing bank) the L/C held by Landlord for cancellation. In
the event Tenant shall fail to comply with its obligations to deliver a new L/C
as set forth herein, Landlord may draw upon the L/C and transfer the proceeds
thereof to the new landlord. If Landlord shall transfer the L/C in accordance
with its term to the new landlord, Tenant shall pay Landlord all fees and
charges of the issuer of the L/C within ten (10) days after demand therefor.
43.6 Tenant shall not assign or encumber or attempt to assign or encumber the
L/C or any moneys drawn from such L/C and neither Landlord nor its successors or
assigns shall be bound by such assignment, encumbrance, attempted assignment or
attempted encumbrance. In the event that any bankruptcy, insolvency,
reorganization or other debtor-creditor proceedings shall be instituted by or
against Tenant, its successors or assigns, or any guarantor of Tenant hereunder,
Landlord may draw upon the L/C, in whole or in part, and use, apply or retain
all or a portion of such money for the payment of any rent as to which Tenant is
in default for periods prior to the institution of such proceedings and the
balance, if any, shall be held by Landlord in accordance with Section 43.4(b).
IN WITNESS WHEREOF, the parties hereto have executed this Lease on the
date first above written.
WITNESS: LANDLORD:
REGENT PARK ASSOCIATES
By: Janfel-Regent Park Corp.
/s/ Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxx
------------------- ----------------------------------
By: Xxxxx Xxxxxxx, Vice President
WITNESS: TENANT:
American Disease
Management Associates
/s/ Xxxxx Xxxxxxxx /s/ Xxxxx Xxxxx
------------------- ----------------------------------
By: Xxxxx Xxxxx, President