OFFICE LEASE
BETWEEN
IB BRELL, L.P. (LANDLORD)
AND
PROFESSIONAL DETAILING, INC. (TENANT)
DATED: November , 1997
Draft 4
November 24, 1997
TABLE OF CONTENTS
PAGE
ARTICLE ONE - BASIC LEASE PROVISIONS.........................................1
1.01 BASIC LEASE PROVISIONS .......................................1
1.02 ENUMERATION OF EXHIBITS ......................................2
1.03 DEFINITIONS ...................................................3
ARTICLE TWO - PREMISES, TERM AND FAILURE TO GIVE POSSESSION..................7
2.01 LEASE OF PREMISES ...........................7
2.02 TERM...........................................................7
2.03 FAILURE TO GIVE POSSESSION.....................................8
2.04 AREA OF PREMISES...............................................8
2.05 INTENTIONALLY OMITTED .........................................8
2.06 CONSTRUCTION ..................................................8
2.07 CONSTRUCTION AUDIT............................................10
2.08 LANDLORD'S ALLOWANCE..........................................11
ARTICLE THREE - RENT........................................................12
ARTICLE FOUR - RENT ADJUSTMENTS AND PAYMENTS................................12
4.01 RENT ADJUSTMENTS..............................................12
4.02 STATEMENT OF LANDLORD.........................................13
4.03 BOOKS AND RECORDS.............................................13
4.04 PARTIAL OCCUPANCY.............................................14
ARTICLE FIVE - SECURITY DEPOSIT.............................................14
ARTICLE SIX - SERVICES......................................................15
6.01 LANDLORD'S GENERAL SERVICES..................................15
6.02 ELECTRICAL SERVICES..........................................16
6.03 ADDITIONAL AND AFTER HOURS SERVICE...........................16
6.04 PHONE SERVICES...............................................17
6.05 DELAYS IN FURNISHING SERVICES................................17
ARTICLE SEVEN - POSSESSION, USE AND CONDITION OF PREMISES...................18
7.01 POSSESSION AND USE OF PREMISES...............................18
7.02 LANDLORD ACCESS TO PREMISES..................................19
7.03 QUIET ENJOYMENT..............................................20
7.04 COMPLIANCE WITH LAWS.........................................20
ii
7.05 PERMITS......................................................20
ARTICLE EIGHT - MAINTENANCE ................................................20
8.01 LANDLORD'S MAINTENANCE.......................................20
8.02 TENANT'S MAINTENANCE.........................................21
ARTICLE NINE - ALTERATIONS AND IMPROVEMENTS ................................21
9.01 TENANT'S ALTERATIONS.........................................21
9.02 LIENS ..............................................23
ARTICLE TEN - ASSIGNMENT AND SUBLETTING ....................................23
10.01 ASSIGNMENT AND SUBLETTING...................................23
10.02 RECAPTURE...................................................25
10.03 EXCESS RENT.................................................25
10.04 TENANT LIABILITY ...........................................26
10.05 ASSUMPTION AND ATTORNMENT ..................................26
ARTICLE ELEVEN - DEFAULT AND REMEDIES ......................................26
11.01 EVENTS OF DEFAULT............................................26
11.02 LANDLORD'S REMEDIES .........................................27
11.03 ATTORNEY'S FEES..............................................29
11.04 BANKRUPTCY...................................................29
ARTICLE TWELVE - SURRENDER OF PREMISES......................................31
12.01 IN GENERAL..................................................31
12.02 LANDLORD'S RIGHTS...........................................31
ARTICLE THIRTEEN - HOLDING OVER.............................................31
ARTICLE FOURTEEN - DAMAGE BY FIRE OR OTHER CASUALTY ........................32
14.01 SUBSTANTIAL UNTENANTABILITY ................................32
14.02 INSUBSTANTIAL UNTENANTABILITY ..............................33
14.03 RENT ABATEMENT .............................................33
ARTICLE FIFTEEN - EMINENT DOMAIN............................................33
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART ........................33
15.02 TAKING OF PART .............................................34
15.03 COMPENSATION ...............................................34
ARTICLE SIXTEEN - INSURANCE ................................................34
16.01 TENANT'S INSURANCE .........................................34
16.02 FORM OF POLICIES ...........................................35
16.03 LANDLORD'S INSURANCE....................................... 35
iii
16.04 WAIVER OF SUBROGATION...................................... 36
16.05 NOTICE OF CASUALTY .........................................37
ARTICLE SEVENTEEN - WAIVER OF CLAIMS AND INDEMNITY..........................37
17.01 WAIVER OF CLAIMS............................................37
17.02 INDEMNITY BY TENANT ........................................38
ARTICLE EIGHTEEN - RULES AND REGULATIONS ..................................38
18.01 RULES ......................................................38
18.02 ENFORCEMENT ................................................38
ARTICLE NINETEEN - LANDLORD'S RESERVED RIGHTS...............................39
ARTICLE TWENTY - ESTOPPEL CERTIFICATE.......................................39
20.01 IN GENERAL............................................39
20.02 ENFORCEMENT...........................................40
ARTICLE TWENTY-ONE - RELOCATION OF TENANT.................................40
ARTICLE TWENTY-TWO - REAL ESTATE BROKERS .................................41
ARTICLE TWENTY-THREE - MORTGAGEE PROTECTION ..............................41
23.01 SUBORDINATION AND ATTORNMENT.................................41
23.02 MORTGAGEE PROTECTION .......................................42
ARTICLE TWENTY-FOUR - NOTICES.............................................43
ARTICLE TWENTY-FIVE - INTENTIONALLY OMITTED
ARTICLE TWENTY-SIX - MISCELLANEOUS .......................................44
26.01 LATE CHARGES.................................................44
26.02 WAIVER OF JURY TRIAL ........................................44
26.03 DEFAULT UNDER OTHER LEASE ...................................44
26.04 OPTION ......................................................44
26.05 TENANT AUTHORITY ............................................45
26.06 ENTIRE AGREEMENT ............................................45
26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE ..............45
26.08 EXCULPATION................................................. 45
26.09 ACCORD AND SATISFACTION .....................................45
26.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING ..................46
26.11 BINDING EFFECT...............................................46
26.12 CAPTIONS ...................................................46
26.13 APPLICABLE LAW...............................................46
26.14 ABANDONMENT..................................................46
iv
26.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES..................47
26.16 RIDERS.......................................................47
26.17 ISRA.........................................................47
ARTICLE TWENTY-SEVEN - PARKING..............................................52
v
OFFICE LEASE
ARTICLE ONE
BASIC LEASE PROVISIONS
1.01 BASIC LEASE PROVISIONS - In the event of any conflict between these
Basic Lease Provisions and any other Lease provision, such other Lease
provision shall control.
(1) BUILDING AND ADDRESS:
10 Mountainview Road
Upper Saddle River, New Jersey 07458
(2) LANDLORD AND ADDRESS:
IB BRELL, L.P.
c/o Koll Real Estate Co.
Mack Centre II
One Mack Centre Drive
Paramus, New Jersey 07652-3906
Attention: Richard Van Houten, Jr.
(3) TENANT AND CURRENT ADDRESS:
Professional Detailing, Inc.
599 McArthur Boulevard
Mahwah, New Jersey 07430
Attention: Ron Collins
(4) DATE OF LEASE: November , 1997
(5) LEASE TERM: Sixty Six Months
(6) PROJECTED COMMENCEMENT DATE: March 1, 1998
(7) EXPIRATION DATE: August 31, 2003 subject to such change which may
result from the application of Section 2.02(d)
(8) MONTHLY BASE RENT:
1
Month Three through Date of Expiration:
Months During Term Monthly Rent Annual Rent Square Foot Rent Total
- ------------------ ------------ ----------- ---------------- -----
1-2 0.00 0.00 0.00 0.00
3-14 $40,791.67 $489,500.00 $22.25 $489,500.00
15 0.00 0.00 0.00 0.00
16-27 $40,791.6 $489,500.00 $22.25 $489,500.00
28 0.00 0.00 0.00 0.00
29-40 $40,791.67 $489,500.00 $22.25 $489,500.00
41 0.00 0.00 0.00 0.00
42-53 $40,791.67 $489,500.00 $22.25 $489.500.00
54 0.00 0.00 0.00 0.00
54-66 $40,791.67 $489,500.00 $22.25 $489,500.00
Total: $2,447,500.00
2
(9) RENTABLE AREA OF THE BUILDING: approximately 192,000 square feet based
on BOMA measurement standards
(10) RENTABLE AREA OF THE PREMISES: approximately 22,000 square feet
(11) SECURITY DEPOSIT: Two Hundred Eighty-Five Thousand Five Hundred Fifty
Four Dollars and 69/100 ($285,541.69)
(12) LOCATION OF PREMISES: Second Floor - South Wing
(13) TENANT'S SHARE: 11.46%
(14) TENANT'S USE OF PREMISES: General office use; together with the
ancillary and incidental right to have a kitchen within the Premises
provided that no meals shall be prepared therein
(15) BASE YEAR: 1998
1.02 ENUMERATION OF EXHIBITS
The exhibits set forth below and attached to this Lease are incorporated in this
Lease by this reference:
EXHIBIT A. Plan of Premises
EXHIBIT B. Construction Rules, Regulations and Responsibilities
EXHIBIT C. Building Specifications
EXHIBIT D. Rules and Regulations
EXHIBIT E. Cleaning Specifications
EXHIBIT F. Commencement Date Agreement
EXHIBIT G. LIST OF NAMES
1.03 DEFINITIONS
For purposes hereof, the following terms shall have the following meanings:
(1) AFFILIATE: Any corporation or other business entity which is owned or
controlled by, owns or controls, or is under common ownership or
control with Tenant or is owned or controlled by the principals of
Tenant.
(2) ADJUSTMENT YEAR: The calendar year or any portion thereof after the
Base Year for which a Rent Adjustment computation is being made.
3
(3) BUILDING: The office building located at 10 Mountainview Road, Upper
Saddle River, New Jersey.
(4) COMMENCEMENT DATE: The date specified in Section 1.01(6).
(5) COMMON AREAS: All areas of the Real Property made available by Landlord
from time to time for the general common use or benefit of the tenants
of the Building, and their employees and invitees, or the public, as
such areas currently exist and as they may be changed from time to
time.
(6) DECORATION: Tenant Alterations which do not require a building permit
and which do not involve any of the structural elements of the
Building, or any of the Building's systems, including, without
limitation, its electrical, mechanical, plumbing, HVAC and security and
life/safety systems.
(7) DEFAULT RATE: Two percent (2%) above the rate then most recently
announced by Citibank, N.A. as its corporate base lending rate, from
time to time announced, but in no event higher than the maximum rate
permitted by law.
(8) ENVIRONMENTAL LAWS: Any Law governing the use, storage, disposal or
generation of any Hazardous Material, including without limitation, the
Comprehensive Environmental Response Compensation and Liability Act of
1980, as amended and the Resource Conservation and Recovery Act of
1976, as amended.
(9) EXPIRATION DATE: Subject to Section 2.02(d), the date specified in
Section 1.01(7) as the Expiration Date.
(10) FORCE MAJEURE: Any accident, casualty, act of God, war or civil
commotion, strike or labor troubles, or any cause whatsoever beyond the
reasonable control of Landlord or Tenant, including, but not limited
to, energy shortages or governmental preemption in connection with a
national emergency, or by reason of government laws or any rule, order
or regulation of any department or subdivision thereof or any
governmental agency, or by reason of the conditions of supply and
demand which have been or are affected by war or other emergency. Force
majeure shall not apply to any money payment required to be made
pursuant to the terms of this Lease.
(11) HAZARDOUS MATERIAL: Such substances, materials and wastes which are or
become regulated under any Environmental Law; or which are or become
classified as hazardous or toxic under any Environmental Law; and
explosives and firearms, radioactive material, asbestos, and
polychlorinated byphenyls.
(12) INDEMNITEES: Collectively, Landlord, any Mortgagee or ground lessor of
the Property, the property manager and the leasing manager for the
Property and their respective directors, officers, agents and
employees.
4
(13) LAND: The parcels of real estate on which the Building is located as of
the date of this Lease.
(14) LANDLORD WORK: As listed on Exhibit "B" attached hereto and by this
reference made a part hereof.
(15) LAWS: All laws, ordinances, rules, regulations and other requirements
adopted by any governmental body, or agency or department having
jurisdiction over the Property, the Premises or Landlord's or Tenant's
activities at the Premises.
(16) LEASE: This instrument and all exhibits and riders attached hereto, as
may be amended from time to time in accordance with the provisions
contained in this Lease.
(17) INTENTIONALLY OMITTED
(18) MONTHLY BASE RENT: The monthly rent specified in Section 1.01(8).
(19) MORTGAGEE: Any holder of a mortgage, deed of trust or other security
instrument encumbering the Property or Landlord's interest therein or
any ground lessor of the Property.
(20) NATIONAL HOLIDAYS: New Years Day, President's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
(21) OPERATING EXPENSES: All costs, expenses and disbursements of every kind
and nature which Landlord shall pay or become obligated to pay in
connection with the ownership, management, operation, maintenance,
replacement and repair of the Property (including the amortized portion
of any capital expenditure or improvement, together with interest
thereon as hereinafter permitted). Operating Expenses shall not
include, (i) costs of preparation, improvements and alterations of the
premises of tenants of the Building, (ii) costs of capital improvements
to the Building (except for amortized portion of capital improvements
installed for the purpose of reducing or controlling Operating Expenses
limited to the extent of the reduction, controlling or savings realized
currently or prospectively as a result thereof or complying with
applicable Laws enacted subsequent to the date of this Lease), (iii)
depreciation charges, (iv) interest and principal payments on loans
(except for loans for capital improvements which Landlord is allowed to
include in Operating Expenses as provided above), (v) ground rental
payments, (vi) real estate brokerage and leasing commissions, (vii)
advertising and marketing expenses, (viii) costs of
5
Landlord reimbursed by insurance proceeds, (ix) expenses incurred in negotiating
leases of other tenants in the Building, (x) Landlord's or Landlord's property
manager's corporate general overhead or corporate general administrative
expenses, (xi) the cost of repairs and/or restorations necessitated by
condemnation or casualty (except that the amount of a commercially reasonable
deductible shall be included in Operating Expenses), (xii) Any cost for which
Landlord is reimbursed by other tenants of the Building; (xiii) the cost of any
work or service performed for any tenant of the Building that is not provided to
Tenant as part of the base building services; (xiv) advertising and promotional
expenditures; (xv) the cost of constructing additions to the Building, (xvi) any
amount paid by Landlord for items or services to any entity controlled by or
under common control with Landlord in excess (by more than a diminimus amount)
of the then competitive rate for such items or services; (xvii) costs of
correcting construction or design defects in the Premises or Building; (xviii)
legal fees and costs arising from tenant disputes or leasing of space in the
Building; (xix) that portion of any costs or expenses relating to both the
Building and to other buildings or properties owned by Landlord, which is
properly allocable or attributable to such other buildings or properties; (xx)
costs of making any structural repairs; (xxi) costs incurred in installing,
operating and maintaining any "specialty", not normally installed, operated, and
maintained in buildings comparable to the Building and not necessary for
Landlord's operation, repair, maintenance and providing of required services for
the Building, and/or any associated parking facilities, such as an observatory,
broadcasting facilities, luncheon club, athletic or recreational club, etc.;
(xxii) salaries above the level of Building manager; (xxiii) costs with respect
to a sale, financing or refinancing of the Building; (xxiv) bad debts loss, rent
loss or reserves for bad debt or rent loss; or (xxv)) cost of bulbs and ballasts
in any tenant space in the Building. If any Operating Expenses, though paid in
one year, relates to more than one calendar year, at option of Landlord such
expense shall be proportionately allocated among such related calendar years.
(22) PREMISES: The space located in the Building described in Sections
1.01(10) and 1.01(12) and depicted on Exhibit A attached hereto.
(23) PROPERTY: The Building, the Land, any other improvements located on the
Land, including, without limitation, any parking structures and the
personal property, fixtures, machinery, equipment, systems and
apparatus located in or used in conjunction with any of the foregoing.
(24) REAL PROPERTY: The Property excluding any personal property.
(25) RENT: Collectively, Monthly Base Rent, Rent Adjustments and Rent
Adjustment Deposits, and all other charges, payments, or other amounts
(excluding late charges) required to be paid by Tenant under this
Lease.
(26) RENTABLE AREA OF THE BUILDING: approximately 192,000 square feet, which
represents the sum of the rentable area of all office space in
Building.
6
(27) RENTABLE AREA OF THE PREMISES: The amount of square footage set forth
in 1.01(10).
(28) RENT ADJUSTMENT: Any amounts owed by Tenant for payment of Operating
Expenses or Taxes which amounts shall be Tenant's Share of the amount
by which Operating Expenses or Taxes for the then Adjustment Year
exceed the amount of Operating Expenses or Taxes for the Base Year. The
Rent Adjustments shall be determined and paid as provided in Article
Four.
(29) RENT ADJUSTMENT DEPOSIT: An amount reasonably determined and/or
redetermined by Landlord from time to time, but not more often than
four (4) times during any calendar year, as being equal to one-twelfth
(1/12th) of the estimated amount of Rent Adjustment owed by Tenant for
an Adjustment Year.
(30) SECURITY DEPOSIT: The funds specified in Section 1.01(11), if any,
deposited by Tenant with Landlord as security for Tenant's performance
of its obligations under this Lease.
(31) SUBSTANTIALLY COMPLETE: The completion of the Landlord's Work in
compliance with the approved Tenant's Plans (as defined in Exhibit B
hereto) including, but not limited to, the installation of all
carpeting and the hanging of all exterior and private office doors in
the Premises, except for minor insubstantial details of construction,
decoration or mechanical adjustments which remain to be done, and which
do not prevent or materially restrict the Tenant's use and enjoyment of
the Premises.
(32) TAXES: All federal, state and local governmental taxes, assessments and
charges of every kind or nature, whether general, special, ordinary or
extraordinary, which Landlord shall pay or become obligated to pay
because of or in connection with the ownership, leasing, management,
control or operation of the Property or any of its components, or any
personal property used in connection therewith, which shall also
include any rental or other taxes levied in lieu of or in addition to
general real and/or personal property taxes. For purposes hereof, Taxes
for any year shall be Taxes which are assessed or become a lien during
such year, whether or not such taxes are billed and payable in a
subsequent calendar year. Landlord represents that no tax appeal for
the Property is currently pending. There shall be included in Taxes for
any year the amount of all reasonable fees, costs and expenses
(including reasonable attorneys' fees) paid by Landlord during such
year in seeking or obtaining any refund or reduction of Taxes. Taxes
for any year shall be reduced by the net amount of any tax refund
received by Landlord attributable to such year (or to the extent not
previously reduced, by refunds attributable to prior Lease Years
(excluding the Base Year) during the term hereof). If a special
assessment payable in installments is levied against any part of the
Property, Taxes for any year shall include only the installment of such
assessment and any interest payable or paid during such year (except
interest resulting from the delinquent payment of such installments).
Taxes shall not include any federal or state inheritance, franchise,
7
general income, transfer, gain, gift or estate taxes, except that if a
change occurs in the method or type of taxation resulting in whole or
in part in the substitution of or in addition to any such taxes, or any
other assessment, for any Taxes as above defined, such substituted or
additional taxes or assessments shall be included in the Taxes if not
assessed against taxpayers generally as compared to owners of real
estate or landlords of leases in particular.
(33) TENANT ADDITIONS: The Tenant Alterations.
(34) TENANT ALTERATIONS: Any alterations, improvements, additions,
installations or construction in or to the Premises or any Building
systems serving the Premises performed by Tenant as permitted by this
Lease.
(35) INTENTIONALLY OMITTED.
(36) TENANT'S SHARE: The percentage specified in Section 1.01(13) which
represents the ratio of the Rentable Area of the Premises to the
Rentable Area of the Building and is subject to change from time to
time during the term of this Lease pursuant to the terms and conditions
herein contained.
(37) TERM: The term of this Lease commencing on the Commencement Date and
expiring on the Expiration Date, unless sooner terminated as provided
in this Lease.
(38) TERMINATION DATE: The Expiration Date or such earlier date as this
Lease terminates or Tenant's right to possession of the Premises
terminates.
ARTICLE TWO
PREMISES, TERM AND FAILURE TO GIVE POSSESSION
2.01 LEASE OF PREMISES
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the
Premises for the Term and upon the conditions provided in this Lease. In the
event Landlord delivers possession of the Premises to Tenant prior to the
Commencement Date, Tenant shall be subject to all of the terms, covenants and
conditions of this Lease (except with respect to the payment of Rent) as of the
date of such possession.
2.02 TERM
(a) The Commencement Date of this Lease shall be the date upon which
Landlord delivers possession of the Premises to Tenant ("Delivery of
Possession"). Delivery of Possession shall be the earlier of (i) the day upon
which Tenant commences business in the Premises, or (ii) seven (7) calendar days
from the last of the following (but without the consent of Tenant, not prior to
March 1, 1998):
8
(A) the day upon which Landlord's architect or general
contractor issues a letter or certification that the work to be performed by
Landlord pursuant to Exhibit B attached hereto has been Substantially Completed;
and
(B) The day upon which Landlord obtains a temporary or final
Certificate of Occupancy for the Premises.
(b) Tenant agrees to accept possession of the Premises when tendered by
Landlord, and to open for business in the Premises promptly thereafter.
(c) If Landlord is unable to deliver possession of the Premises to
Tenant by March 1, 1998, as such date may be extended for reasons of Force
Majeure (as defined in this Lease), and provided the reason therefore has not
been a result of Tenant's acts or omissions, then, and in such event, the
Delivery of Possession may be extended, but in no event to a date later than
September 1, 1998) and unless Landlord delivers possession of the Premises on or
prior to September 1, 1998 (to which Force Majeure shall not apply), this Lease
shall terminate on such date and the parties shall be released herefrom. If this
Lease is canceled under this subpart (c), neither party shall have any further
liability to the other hereunder.
(d) Unless sooner terminated, the Term of this Lease shall expire at
11:59 p.m. on the last day of the sixty sixth (66th) calendar month following
the Commencement Date.
2.03 AREA OF PREMISES
Landlord and Tenant agree that for all purposes of this Lease the Rentable Area
of the Premises and the Rentable Area of the Building as set forth in Article
One are controlling, and, except as in this Lease specifically provided, are not
subject to revision after the date of this Lease.
ARTICLE THREE
RENT
Tenant agrees to pay to Landlord at the office specified in Section 1.01(2), or
to such other persons, or at such other places designated by Landlord, without
any prior demand therefor in immediately available funds and without any
deduction, offset or abatement whatsoever (except as may be specifically
provided for in this Lease, including but not limited to, the abatement set
forth in Section 1.01(8)), Rent, including, without limitation, Monthly Base
Rent and Rent Adjustments in accordance with Article Four, during the Term.
Monthly Base Rent shall be paid monthly in advance on the first day of each
month of the Term. Monthly Base Rent shall be prorated for partial months within
the Term. Unpaid Rent shall bear interest at the Default Rate from the date due
until paid, if such Rent is not paid within five (5) business days after the
date due. Tenant's covenant to pay Rent shall be independent of every other
covenant in this Lease.
9
ARTICLE FOUR
RENT ADJUSTMENTS AND PAYMENTS
4.01 RENT ADJUSTMENTS
Tenant shall pay to Landlord Rent Adjustments during the Term as follows:
(i) Commencing on January 1, 1999, the Rent Adjustment Deposit
representing Tenant's Share of the increase in Operating Expenses and
Taxes over the Base Year of 1998 attributable to any calendar year (or
portion thereof) monthly during the Term at the time when the Monthly
Base Rent is due; and
(ii) Any Rent Adjustments due in excess of the Rent Adjustment
Deposits in accordance with Section 4.02.
4.02 STATEMENT OF LANDLORD
As soon as feasible (but in no event later than 210 days) after the expiration
of each calendar year of this Lease, Landlord will furnish Tenant a statement
("Landlord's Statement") showing the following:
(i) Operating Expenses and Taxes for the Adjustment Year and
the amount of the increase over the Base Year;
(ii) The amount of Rent Adjustments due Landlord for the
Adjustment Year, less credit for Rent Adjustment Deposits paid, if any;
and
(iii) The Rent Adjustment Deposit due monthly in the calendar
year next following the Adjustment Year including the amount or revised
amount due for months prior to the rendition of the statement.
Tenant shall pay to Landlord within thirty (30) days after receipt of such
statement any amounts for Rent Adjustments then due in accordance with
Landlord's Statement. Any amounts due
10
from Landlord to Tenant pursuant to this Section shall be credited to the Rent
Adjustment Deposit next coming due, or at Tenant's election (upon written notice
to Landlord) applied to the next payment of rent, or refunded to Tenant if the
Term has already expired provided Tenant is not in default hereunder. No
interest or penalties shall accrue on any amounts which Landlord is obligated to
credit to Tenant by reason of this Section 4.02. Landlord's failure to deliver
Landlord's Statement or in computing the amount of the Rent Adjustments shall
not constitute a waiver by Landlord of its right to deliver such items nor
constitute a release of Tenant's obligations to pay such amounts unless such
failure shall continue for 365 days after the expiration of each applicable
calendar year during the term of this Lease. The Rent Adjustment Deposit shall
be credited against Rent Adjustments due for the applicable Adjustment Year.
During the last complete calendar year or during any partial calendar year in
which the Lease terminates, Landlord may include in the Rent Adjustment Deposit
its reasonable estimate of Rent Adjustments which may not be finally determined
until after the termination of this Lease. Tenants's obligation to pay Rent
Adjustments (and Landlord's obligation to reimburse Tenant for any excess
estimated payments made by Tenant) survives the expiration or termination of the
Lease. Notwithstanding the foregoing, in no event shall the sum of Monthly Base
Rent and the Rent Adjustments be less than the Monthly Base Rent payable.
4.03 BOOKS AND RECORDS
Landlord shall maintain books and records showing Operating Expenses and Taxes
in accordance with sound accounting and management practices, consistently
applied. Upon written notice and request, Landlord shall make such records
available to Tenant in the State of New Jersey for Tenant review as set forth in
the sentence next following. The Tenant or its representative shall have the
right, for a period of one hundred Eighty (180) days following the date upon
which Landlord's Statement is delivered to Tenant, to examine the Landlord's
books and records with respect to the items in the foregoing statement of
Operating Expenses and Taxes during normal business hours, upon written notice,
delivered at least three (3) business days in advance. If Tenant does not object
in writing to Landlord's Statement within one hundred eighty (180) days of
Tenant's receipt thereof, specifying the nature of the item in dispute and the
reasons therefor, then Landlord's Statement shall be considered final and
accepted by Tenant. Any amount due to the Landlord as shown on Landlord's
Statement, whether or not disputed by Tenant as provided herein shall be paid by
Tenant when due as provided above, without prejudice to any such written
exception. Any dispute between Landlord and Tenant as to the matters which are
the subject of this Section 4.03 shall be resolved pursuant to Section 26.18
hereof.
4.04 PARTIAL OCCUPANCY
For purposes of determining Rent Adjustments for any Adjustment Year if the
Building is not fully rented during all or a portion of any year (including the
Base Year), Landlord shall make appropriate adjustments to the Operating
Expenses (that is, that portion thereof that would vary with occupancy levels)
for such Adjustment Year (including the Base Year) employing sound
11
accounting and management principles consistently applied, to determine the
amount of Operating Expenses that would have been paid or incurred by Landlord
had the Building been 95% occupied, and the amount so determined shall be deemed
to have been the amount of Operating Expenses for such Adjustment Year. In the
event that the Real Property is not fully assessed for any year (including the
Base Year), then Taxes shall be adjusted to an amount which would have been
payable in such year (including the Base Year) if the Real Property had been
fully assessed (which estimated adjustment shall be revised, if necessary, to
reflect the actual full assessment and the Landlord and Tenant shall thereafter
reconcile any under or over payment made based on such readjustment). In the
event any other tenant in the Building provides itself with a service which
Landlord would supply under the Lease without an additional or separate charge
to Tenant, then Operating Expenses shall be deemed to include the cost Landlord
would have incurred had Landlord provided such service to such other tenant (but
only to the extent the cost for such service was included in Operating Expenses
for the Base Year.
ARTICLE FIVE
SECURITY DEPOSIT
Concurrently with the execution of this Lease Tenant shall deliver the Security
Deposit to the Landlord. Tenant shall deliver the Security Deposit in the
following form: $122,375.01 in cash and $163,166.68 represented by an
irrevocable and unconditional letter of credit for the full term of the Lease
and any extensions, which letter of credit shall be prepared and delivered by a
financial institution acceptable to the Landlord. The Security Deposit may be
applied by Landlord to.cure any default of Tenant under this Lease, and upon
notice by Landlord of such application, Tenant shall replenish the Security
Deposit in full by paying to Landlord within ten (10) days of demand the amount
so applied. Landlord shall not pay any interest on the Security Deposit. The
Security Deposit shall not be deemed an advance payment of Rent, nor a measure
of damages for any default by Tenant under this Lease, nor shall it be a bar or
defense of any action which Landlord may at any time commence against Tenant. In
the absence of evidence satisfactory to Landlord of an assignment of the right
to receive the Security Deposit or the remaining balance thereof, Landlord may
return the Security Deposit to the original Tenant, regardless of one or more
assignments of this Lease. Upon the transfer of Landlord's interest under this
Lease (and the written assumption by the transferee of the Landlord's
obligations hereunder with respect to the Security Deposit), Landlord's
obligation to Tenant with respect to the Security Deposit shall terminate upon
assumption of such obligation by the transferee.
If Tenant shall fully and faithfully comply with all the terms, provisions,
covenants, and conditions of this Lease, the Security Deposit, or any balance
thereof, shall be returned to Tenant after the following:
12
(a) the expiration of the term of this Lease;
(b) the removal of Tenant and its property from the Premises;
(c) the surrender of the Premises by Tenant to Landlord in
accordance with this Lease; and
(d) the payment by Tenant of any outstanding Rent, including,
without limitation, all Rent Adjustments due pursuant to the Lease as computed
by Landlord.
Notwithstanding the foregoing, Tenant at Tenant's election, which
election shall be exercised by delivery to Landlord of an additional irrevocable
and unconditional letter of credit in the amount of $122,370.01 at least 90 days
prior to the expiration of the (i) term of this Lease (if No Renewal Option is
exercised) or (ii) any properly exercised Renewal Option, may elect, which
election shall be indicated in writing together with the delivery of the
additional irrevocable letter of credit, as set forth above, to have Landlord
apply the cash portion of the Security Deposit to the base rental payments for
the final three months of the then existing Term of this Lease or the properly
exercised Renewal Option. The additional letter of credit shall constitute a
portion of the Security Deposit and shall be applied or returned to Tenant as
set forth in this Lease. Upon the deposit with Landlord of such additional
letter of credit, the $163,166.68 letter of credit shall be delivered to
Landlord's counsel, to be held in escrow and applied or returned to Tenant
pursuant to the terms of this Lease.
ARTICLE SIX
SERVICES
6.01 LANDLORD'S GENERAL SERVICES
So long as the Lease is in full force and effect Landlord shall furnish
the following services:
(1) heat and air-conditioning in the Premises, Monday through Friday from
8:00 A.M. to 6:00 P.M., Saturday, from 8:00 A.M. to 1:00 P.M.,
excluding National Holidays, as necessary in Landlord's reasonable
judgment for the comfortable occupancy of the Premises under normal
business operations, subject to compliance with all applicable
voluntary and mandatory Laws and provided that Tenant Is use of heat
generating machines or equipment does not exceed the limits established
in Exhibit C and provided that the Tenant's occupancy or electrical
load does not exceed the standards set forth in Exhibit C thereby
affecting the temperature otherwise maintained by the air-cooling
system;
(2) tempered and cold water for use in lavatories and kitchen in common
with other tenants from the regular supply of the Building;
(3) customary cleaning and janitorial services in the Premises Monday
through Friday,
13
excluding National Holidays, in accordance with the specifications
attached hereto as Exhibit E;
(4) washing of the outside windows in the Premises weather permitting at
intervals determined by Landlord, but not less than twice each calendar
year during the term of the Lease;
(5) passenger elevator service (without operator);
(6) common area services including cleaning, snow plowing, landscaping and
electricity.
6.02 ELECTRICAL SERVICES
(a) All electricity used in the Premises including but not limited to
electricity used during the performance of janitorial service or the
making of alterations or repairs in the Premises by Landlord shall be
paid by Tenant. Tenant also agrees to purchase from Landlord or its
agents at competitive prices fixed by Landlord for all tenants in the
Building all lamps, bulbs, ballasts and starters used in the Premises.
Tenant shall make no alterations or additions to the electric equipment
or systems without the prior written consent of the Landlord in each
instance.
(b) It is the intent of the parties hereto that the Premises be
separately metered, and Landlord at the expense of the Tenant (included
in Tenant's Allowance) shall make all necessary arrangements with the
local utility company for furnishing, metering and paying for the
meters, the installation of the meters and related equipment and for
all electricity furnished by it to Tenant and consumed on the Premises.
Landlord shall permit Landlord's wire and conduits, to the extent
available and safely capable, to be used for such purposes, as provided
for in Exhibit C hereto. The cost of electricity to Tenant shall be the
same amount as paid by Landlord to the applicable utility for such
electricity.
6.03 ADDITIONAL AND AFTER-HOUR SERVICES
At Tenant's request, Landlord shall furnish additional quantities of any of the
services or utilities specified in Section 6.01, if Landlord can reasonably do
so, on the terms set forth herein. Tenant shall deliver to Landlord a written
request for such additional services or utilities prior to 2:00 P.M. on Monday
through Friday (except National Holidays) for service on those days, and prior
to 2:00 P.M. on the last business day prior to Saturday, Sunday or a National
Holiday. For additional services or utilities requested by Tenant and furnished
by Landlord, Tenant shall pay to Landlord as a charge therefor Landlord's
prevailing published rates for such services and utilities (notwithstanding the
provisions of this sentence the charge for additional HVAC service shall be
seventy five ($75) dollars per hour (or any portion thereof) subject, however to
14
adjustment for any increases or decreases in utility rates that may occur from
time to time. If Tenant shall fail to make any such payment, Landlord may, upon
notice to Tenant and in addition to Landlord's other remedies under this Lease,
discontinue any or all of the additional services.
6.04 PHONE SERVICES
All telephone and electric connections which Tenant may desire shall be first
approved by Landlord in writing, which approval shall not be unreasonably
withheld delayed or conditioned, before the same are installed, and the location
of all wires and the work in connection therewith shall be performed by
contractors reasonably approved by Landlord. Landlord reserves the right to
reasonably restrict and control access to telephone cabinets, which reasonable
access is hereby granted to Tenant. Tenant shall be responsible for and shall
pay all costs incurred in connection with the installation of telephone cables
and related wiring in the Premises (which need not be removed by Tenant at the
expiration of the term of this Lease), including, without limitation, any
hook-up, access and maintenance fees related to the installation of such wires
and cables in the Premises and the commencement of service therein, and the
maintenance thereafter of such wire and cables; and there shall be included in
Operating Expenses for the Building all installation, hookup or maintenance
costs incurred by Landlord in connection with telephone cables and related
wiring in the Building which are not allocable to any individual users of such
service but are allocable to the Building generally. If Tenant fails to maintain
all telephone cables and related wiring in the Premises and such failure affects
or interferes with the operation or maintenance of any other telephone cables or
related wiring in the Building, Landlord or any vendor, hired by Landlord after
notice to Tenant, may enter into and upon the Premises forthwith and perform
such repairs, restorations or alterations as Landlord deems necessary in order
to eliminate any such interference (and Landlord may recover from Tenant all of
Landlord's actual costs in connection therewith). Tenant agrees that neither
Landlord nor any of its agents or employees shall be liable to Tenant, or any of
Tenant's employees, agents, customers or invitees or anyone claiming through, by
or under Tenant, for any damages, injuries, losses, expenses, claims or causes
of action because of any interruption, diminution, delay or discontinuance at
any time for any reason in the furnishing of any telephone service to the
Premises and the Building.
6.05 DELAYS IN FURNISHING SERVICES
Tenant agrees that Landlord, provided (i) Landlord acts reasonably to restore
such service, and (ii) that loss of service is not the result of a default by
Landlord hereunder, shall not be liable to Tenant for damages or otherwise, for
any failure to furnish, or a delay in furnishing, any service when such failure
or delay is occasioned, in whole or in part, by repairs, improvements or
mechanical breakdowns, by the act or default of Tenant or by an event of Force
Majeure. No such failure or delay shall be deemed to be an eviction or
disturbance of Tenant's use and possession of the Premises, or relieve Tenant
from paying Rent or from performing any other
15
obligations of Tenant under this Lease. In no event shall Landlord be liable to
Tenant for any consequential damages. Landlord shall use reasonable efforts to
minimize interference with the conduct of Tenant's business from the Premises.
ARTICLE SEVEN
POSSESSION, USE AND CONDITION OF PREMISES
7.01 POSSESSION AND USE OF PREMISES
(a) Tenant shall occupy and use the Premises only for the uses
specified in Section 1.01(14). Tenant shall not occupy or use the Premises (or
permit the use or occupancy of the Premises) for any purpose or in any manner
which:
(1) is unlawful or in violation of any Law or Environmental Law; (2) may be
dangerous to persons or property or which may increase the cost of, or
invalidate, any policy of insurance carried on the Building or covering its
operations; (3) is contrary to or prohibited by the terms and conditions of this
Lease or the rules of the Building set forth in Article Eighteen; or (4) would
tend to create or continue a nuisance. Landlord represents that as of the
Commencement Date hereof, the use of the Premises for general office use will
not violate the Zoning Ordinance of Upper Saddle River, New Jersey.
(b) Tenant and Landlord shall each comply with all Environmental Laws
concerning the proper storage, handling and disposal of any Hazardous Material
with respect to the Property. Tenant shall not generate, store, handle or
dispose of any Hazardous Material in, on, or about the Property without the
prior written consent of Landlord. Nothing herein shall prohibit the Tenant from
using reasonable quantities of properly packaged supplies which may contain
Hazardous Materials but which are customly present in premises devoted to office
use, provided that such use is in compliance with Environmental Laws. In the
event that Tenant is notified of any investigation or violation of any
Environmental Law arising from Tenant's activities at the Premises, Tenant shall
immediately deliver to Landlord a copy of such notice. In such event or in the
event Landlord reasonably believes that a violation of Environmental Law exists,
Landlord may conduct such tests and studies relating to compliance by Tenant
with Environmental Laws or the alleged presence of Hazardous Materials upon the
Premises as Landlord deems desirable, all of which shall be completed at
Tenant's expense. However, if such tests and/or studies were initiated and/or
required only by Landlord then in that event, Tenant shall be required to pay
for the same only if the test and/or studies reveal a situation in violation of
any Environmental Laws to which Tenant is responsible. Landlord's inspection and
testing rights are for Landlord's own protection only, and Landlord has not, and
shall not be deemed to have assumed any responsibility to Tenant or any other
party for compliance with Environmental Laws, as a result of the exercise, or
non-exercise of such rights. Tenant shall indemnify, defend, protect and hold
harmless the Indemnitees from any and all loss, claim, expense, liability and
cost (including attorneys' fees) arising out of or in any way related to the
16
presence of any Hazardous Material introduced to the Premises, except as above
permitted, during the Lease Term by any party other than Landlord. If any
Hazardous Material is released, discharged or disposed of on or about the
Property and such release, discharge or disposal is not caused by Tenant or
other occupants of the Premises, or their employees, agents or contractors, such
release, discharge or disposal shall be deemed casualty damage under Article
Fourteen to the extent that the Premises are affected thereby; in such case,
Landlord and Tenant shall have the obligations and rights respecting such
casualty damage provided under such Article.
(c) Landlord and Tenant acknowledge that the Americans With
Disabilities Act of 1990 (42 U.S.C S12101 et seq.) and regulations and
guidelines promulgated thereunder, as all of the same may be amended and
supplemented from time to time (collectively referred to herein as the "ADA")
establish requirements for business operations, accessibility and barrier
removal, and that such requirements may or may not apply to the Premises and the
Building depending on, among other things: (1) whether Tenant's business is
deemed a "public accommodation" or "commercial facility", (2) whether such
requirements are "readily achievable", and (3) whether a given alteration
affects a "primary function area" or triggers "path of travel" requirements. The
parties hereby agree that: (a) Landlord shall be responsible for ADA Title III
compliance in the Common Areas, except as provided below, (b) except for initial
Landlord's Work actually performed by Landlord or Landlord's agents, Tenant
shall be responsible for ADA Title III compliance in the Premises, and (c)
Landlord may perform, or require that Tenant perform, and Tenant shall be
responsible for the cost of, ADA Title III "path of travel" requirements
triggered by Tenant Alterations in the Premises. Tenant shall be solely
responsible for requirements under Title I of the ADA relating to Tenant's
employees.
7.02 LANDLORD ACCESS TO PREMISES
(a) Tenant shall permit Landlord to erect, use and maintain pipes,
ducts, wiring and conduits in and through the Premises, so long as Tenant's use,
layout or design of the Premises is not materially affected or altered. Landlord
or Landlord's agents shall have the right to enter upon the Premises in the
event of an emergency, or to inspect the Premises, to perform janitorial and
other services, to conduct safety and other testing in the Premises and to make
such repairs, alterations, improvements or additions to the Premises or the
Building as Landlord may deem necessary or desirable upon not less than one (1)
business day prior notice to Tenant (unless an emergency exists in which event
no prior notice shall be required). Janitorial and cleaning services shall be
performed after normal business hours. In connection therewith, Landlord shall
be allowed to store on the Premises all necessary supplies and materials unless
the same will materially interfere with Tenant's conduct of business from the
Premises. Any entry or work by Landlord may be during normal business hours upon
one (1) business day prior notice to Tenant (except in the event of an emergency
with respect to which any entry or work may be done at any time) and Landlord
shall use reasonable efforts to see that any entry or work shall not materially
interfere with Tenant's occupancy of the Premises.
17
(b) If Tenant shall not be personally present to permit an entry into
the Premises when for any reason an entry therein shall be necessary or
permissible, Landlord (or Landlord's agents), after attempting to notify Tenant
(unless Landlord believes an emergency situation exists), may enter the Premises
without rendering Landlord or its agents liable therefor (if during such entry
Landlord or Landlord's agent shall accord reasonable care to Tenant's property),
and without relieving Tenant of any obligations under this Lease.
(c) Landlord may upon not less than one (1) business day prior notice
to Tenant (unless an emergency exists in which event no prior notice shall be
required) enter the Premises, in the presence of a representative of the Tenant,
for the purpose of conducting such inspections, tests and studies as Landlord
may deem desirable or necessary to confirm Tenant' s compliance with all Laws
and Environmental Laws or for other purposes necessary in Landlord's reasonable
judgment to ensure the sound condition of the Building and the systems serving
the Building. Landlord's rights under this Section 7.02(c) are for Landlord's
own protection only, and Landlord has not, and shall not be deemed to have
assumed any responsibility to Tenant or any other party for compliance with Laws
or Environmental Laws, as a result of the exercise or non-exercise of such
rights.
(d) Provided that Landlord acts reasonably to complete the work and/or
inspections as above provided then Landlord may do any of the foregoing, or
undertake any of the inspection or work described in the preceding paragraphs
without such action constituting an actual or constructive eviction of Tenant,
in whole or in part, or giving rise to an abatement of Rent by reason of loss or
interruption of business of the Tenant, or otherwise. Landlord shall, in doing
the foregoing, use reasonable efforts to minimize the interference with the
Tenant's conduct of business from the Premises.
7.03 QUIET ENJOYMENT
Landlord covenants that so long as Tenant is in compliance with the covenants
and conditions set forth in this Lease, Tenant shall have the right to quiet
enjoyment of the Premises without hindrance or interference from Landlord or
those claiming through Landlord.
7.04 COMPLIANCE WITH LAWS
Tenant shall comply with and execute at its own expense during and throughout
the term of this Lease, all Laws, ordinary or extraordinary, foreseen or
unforeseen, concerning the Tenant's Premises and the Tenants use and occupancy
thereof. Any law relating to the Building, and having application to the
Building regardless of the use made thereof, shall be the responsibility of the
Landlord and shall be considered an Operating Expense to the extent permitted by
the terms of this Lease, and except that as to the compliance with any
Environmental Law by
18
Landlord as may be required by this Section 7.04 Tenant's payment in connection
with Tenant's Share's on an annual basis throughout the Term of this Lease
applicable to such compliance shall not exceed $15,000.00.
7.05 PERMITS
Except as specifically provided to the contrary in this Lease, Tenant shall be
responsible, at Tenant's expense, for obtaining any and all licenses, permits,
authorizations and approvals which may be required by any Law to be obtained for
the proper and lawful conduct of Tenant's business in the Premises.
ARTICLE EIGHT
MAINTENANCE
8.01 LANDLORD'S MAINTENANCE
Subject to the provisions of Article Fourteen, Landlord shall maintain and make
necessary repairs to the foundations, roofs, exterior walls, common areas,
parking areas, landscaping, and the structural elements of the Building, the
electrical, plumbing, heating, ventilation and air-conditioning systems of the
Building and the public corridors, washrooms and lobby of the Building, except
that: (a) Landlord shall not be responsible for the maintenance or repair of any
floor coverings or wall coverings in the Premises or any of such systems which
are located within the Premises; and (b) the cost of performing any of said
maintenance or repairs whether to the Premises or to the Building caused by the
negligence of Tenant, its employees, agents, servants, licensees, subtenants,
contractors or invitees, shall be paid by Tenant, provided, however, Landlord
agrees to credit Tenant with any insurance proceeds paid to Landlord or which
would have been payable to Landlord had Landlord maintained the insurance
required to be maintained by Landlord under the terms and conditions of this
Lease. Landlord shall not be liable to Tenant for any expense, injury, loss or
damage resulting from work done in or upon, or the use of, any adjacent or
nearby building, land, street, or alley.
8.02 TENANT'S MAINTENANCE
Subject to the provisions of Article Fourteen, Tenant, at its expense, shall
keep and maintain the Premises and all systems and items located therein that
exclusively serve the Premises, and all Tenant Additions in good order,
condition and repair (reasonable wear and tear and damage caused by fire or
other casualty excepted) and in accordance with all Laws and Environmental Laws.
Tenant shall not permit waste and shall promptly and adequately repair all
damages to the Premises and replace or repair all damaged or broken glass in the
interior of the Premises,
19
fixtures or appurtenances unless caused by the negligence of Landlord or its
agents or representatives provided, however, Landlord agrees to credit Tenant
with any insurance proceeds paid to Landlord or which would have been payable to
Landlord had Landlord maintained the insurance required to be maintained by
Landlord under the terms and conditions of this Lease. Any repairs or
maintenance shall be completed with materials of similar quality to the original
materials, all such work to be completed under the supervision of Landlord. Any
such repairs or maintenance shall be performed only by contractors or mechanics
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed, and whose work will not cause or threaten to cause
disharmony or interference with Landlord or other tenants in the Building and
their respective agents and contractors performing work in or about the
Building. If Tenant fails to perform any of its obligations set forth in this
Section 8.02, Landlord may, in its sole discretion and upon one (1) business day
prior notice to Tenant (except in the case of emergencies), perform the same,
and Tenant shall pay to Landlord any reasonable costs or expenses incurred by
Landlord within 30 days after demand.
ARTICLE NINE
ALTERATIONS AND IMPROVEMENTS
9.01 TENANT'S ALTERATIONS
(a) The following provisions shall apply to the completion of any
Tenant Alterations:
(1) Tenant shall not, except as provided herein, without the prior written
consent of Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed, make or cause to be made any Tenant Alterations
in or to the Premises or any Building systems serving the Premises.
Prior to making any Tenant Alterations, Tenant shall give Landlord ten
(10) days prior written notice (or such earlier notice as would be
necessary pursuant to applicable Law) to permit Landlord sufficient
time to post appropriate notices of nonresponsibility. At the time that
Landlord may respond in the affirmative to any request by Tenant to
make such Tenant Alterations, Landlord shall advise Tenant whether or
not Tenant shall be required to remove the Tenant Alterations upon the
expiration of the Lease Term. Tenant may remove any Tenant's
Alterations whether or not Landlord requires the same to be removed
pursuant to the preceding sentence and such removal shall be performed
in accordance with Article 12 of this Lease. Subject to all other
requirements of this Article Nine, Tenant may undertake Decoration work
without Landlord's prior written consent. Tenant shall furnish Landlord
with the names and addresses of all contractors and subcontractors and
copies of all contracts. All Tenant Alterations shall be completed at
such time and in such manner as Landlord may from time to time
reasonably designate, and only by contractors or mechanics approved by
Landlord (except no such approval need be obtained with respect to
Decorations), which approval shall not be unreasonably withheld, and
whose work will not cause or threaten to cause disharmony or
interference with Landlord or other tenants in the Building and their
respective agents and contractors performing work in or about the
Building. Any
20
contractor designated by Landlord as set forth above shall charge
competitive rates for the completion of Tenant's Alterations. Landlord
may further condition its consent upon Tenant furnishing to Landlord
and Landlord approving prior to the commencement of any work or
delivery of materials to the Premises related to the Tenant Alterations
such of the following as specified by Landlord: architectural plans and
specifications (if required by the permitting agency), opinions from
engineers reasonably acceptable to Landlord stating that the Tenant
Alterations will not unreasonably affect the Building's systems,
including, without limitation, the mechanical, heating, plumbing,
security, ventilating, air-conditioning, electrical, and the fire and
life safety systems in the Building, necessary permits and licenses,
certificates of insurance. Landlord may, in the exercise of reasonable
judgment, request that Tenant provide Landlord with appropriate
evidence of Tenant's ability to complete and pay for the completion of
the Tenant Alterations such as a performance bond or letter of credit.
A performance bond shall be required for all Tenant Alterations costing
in excess of $30,000.00 in any single instance. Upon completion of the
Tenant Alterations, Tenant shall deliver to Landlord an as-built set of
plans and specifications for the Tenant Alterations.
(2) Tenant shall pay the cost of all Tenant Alterations and the cost of
decorating the Premises and any work to the Building occasioned
thereby. In connection with completion of any Tenant Alterations,
Tenant shall pay Landlord a construction fee equal to three (3%)
percent of the construction cost of such Tenant Alterations and all
elevator and hoisting charges at Landlord's then standard reasonable
rate. Upon completion of Tenant Alterations, Tenant shall furnish
Landlord with contractors' affidavits and full and final waivers of
lien and receipted bills covering all labor and materials expended and
used in connection therewith and such other documentation reasonably
requested by Landlord or Mortgagee.
(3) Tenant agrees to complete all Tenant Alterations (i) in accordance with
all Laws, Environmental Laws, all requirements of applicable insurance
companies and in accordance with Landlord's standard construction rules
and regulations, and (ii) in a good and workmanlike manner with the use
of good grades of materials. Tenant shall notify Landlord immediately
if Tenant receives any notice of violation of any Law in connection
with completion of any Tenant Alterations and shall immediately take
such steps as are necessary to remedy such violation. In no event shall
such supervision or right to supervise by Landlord nor shall any
approvals given by Landlord under this Lease constitute any warranty by
Landlord to Tenant of the adequacy of the design, workmanship or
quality of such work or materials for Tenant's intended use, or of
compliance with the requirements of Section 9.01(a) (3) (i) and (ii)
above or impose any liability upon Landlord in connection with the
performance of such work.
21
(b) All Tenant Alterations whether installed by Landlord or Tenant,
shall without compensation or credit to Tenant, become part of the
Premises and the property of Landlord at the time of their installation
and shall remain in the Premises, unless pursuant to Article Twelve,
Tenant removes them or is required to remove them at Landlord's
request. Tenant shall not be required to remove the Landlord's Work
installed as of the Commencement Date of this Lease.
9.02 LIENS
Tenant shall not permit any lien or claim for lien of any mechanic, laborer or
supplier or any other lien to be filed against the Building, the Land, the
Premises, or any part thereof arising out of work performed, or alleged to have
been performed by, or at the direction of, or on behalf of Tenant. If any such
lien or claim for lien is filed, Tenant shall within thirty (30) days (or ten
(10) days, if necessary, to avoid interference in Landlord's consummating a
transaction involving the Building) of receiving notice of such lien or claim
(a) have such lien or claim for lien released of record or (b) deliver to
Landlord a bond in form, content, amount, and issued by surety, reasonably
satisfactory to Landlord, indemnifying, protecting, defending and holding
harmless the Indemnitees against all costs and liabilities resulting from such
lien or claim for lien and the foreclosure or attempted foreclosure thereof. If
Tenant fails to take any of the above actions, Landlord, without investigating
the validity of such lien or claim for lien, may pay or discharge the same and
Tenant shall, as payment of additional Rent hereunder, reimburse Landlord upon
demand for the reasonable amount so paid by Landlord, including Landlord's
reasonable expenses and reasonable attorneys' fees.
ARTICLE TEN
ASSIGNMENT AND SUBLETTING
10.01 ASSIGNMENT AND SUBLETTING
(a) Without the prior written consent of Landlord, Tenant may not
sublease, assign, mortgage, pledge, hypothecate or otherwise transfer or permit
the transfer of this Lease or the encumbering of Tenant's interest therein in
whole or in part, by operation of law or otherwise or permit the use or
occupancy of the Premises, or any part thereof, by anyone other than Tenant. If
Tenant desires to enter into any sublease of the Premises or assignment of this
Lease, Tenant shall deliver written notice thereof to Landlord ("Tenant's
Notice"), together with the identity of the proposed subtenant or assignee and
the proposed principal terms thereof and financial and other information
sufficient for Landlord to make an informed judgment with respect to such
proposed subtenant or assignee at least thirty (30) days prior to the
commencement dated of the term of the proposed sublease or assignment. If Tenant
proposes to sublease less than all of the Rentable Area of the Premises, the
space proposed to be sublet and the space retained by Tenant must each be a
marketable unit as reasonably determined by Landlord and otherwise in compliance
with all Laws. Landlord shall notify Tenant in writing
22
of its approval or disapproval of the proposed sublease or assignment or its
decision to exercise its rights under Section 10.02 within twenty (20) days
after receipt of Tenant's Notice (and all required information). In no event may
Tenant sublease any portion of the Premises or assign the Lease to any other
tenant of the Building. Tenant shall submit for Landlord's approval (which
approval shall not be unreasonably withheld) any advertising which Tenant or its
agents intend to use with respect to the space proposed to be sublet or
assigned.
(b) In making its determination of whether to consent to any proposed
sublease or assignment (which consent, subject to the provisions of this
subsection (b) shall not be unreasonably withheld or conditioned), Landlord may
take into consideration the business reputation and credit-worthiness of the
proposed subtenant or assignee; the nature of the business conducted by such
subtenant or assignee and whether such business would be deleterious to the
reputation of the Building or Landlord or would violate the provisions of any
other leases of tenants of the Building; the estimated pedestrian and vehicular
traffic in the Premises and to the Building which would be generated by the
proposed subtenant or assignee; whether the proposed assignee or subtenant is a
department, representative or agency of any governmental body, foreign or
domestic; and any other factors which Landlord shall deem relevant. In no event
shall Landlord be obligated to consider a consent to any proposed (i) sublease
of the Premises or assignment of the Lease if a Default then exists under the
Lease, or (ii) assignment of the Lease which would assign less than the entire
Premises.
(c) If Landlord chooses not to recapture the space proposed to be
subleased or assigned as provided in Section 10.02, Landlord shall not
unreasonably withhold, delay or condition its consent to a subletting or
assignment under this Section 10. 01. Any approved sublease or assignment shall
be expressly subject to the terms and conditions of this Lease. Any such
subtenant or assignee shall execute such documents as Landlord may reasonably
require to evidence such subtenant's agreement to or assignee's assumption of
such obligations and liabilities. Tenant shall deliver to Landlord a copy of all
agreements executed by Tenant and the proposed subtenant and assignee with
respect to the Premises. Landlord's approval of a sublease or assignment shall
not constitute a waiver of Landlord's right to consent to further assignments or
subleases.
(d) For purposes of this Article Ten, an assignment shall be deemed to
include a change in the majority control of Tenant, resulting from any transfer,
sale or assignment of shares of stock of Tenant occurring by operation of law or
otherwise if Tenant is a corporation whose shares of stock are not traded
publicly. If Tenant is a partnership, any change in the partners of Tenant shall
be deemed to be an assignment. The provisions of this subsection (d) shall not
be applicable to Tenant if it is a corporation whose stock is publicly traded.
23
(e) Landlord shall have no right to withhold consent to any assignment
of this Lease or to any subletting to a majority owned subsidiary of Tenant, its
parent or such other corporation which has more than fifty (50%) percent of
common legal and beneficial ownership, provided such does not result in a change
in the use of the Premises and provided further that such assignee continues to
be after such assignment a majority-owned subsidiary of Tenant, Tenant's parent
or other corporation which has more than fifty (50%) percent of common legal and
beneficial ownership of Tenant. In such case, Tenant shall remain directly and
primarily liable for the performance of the terms and conditions of this Lease.
Landlord shall have no right to withhold consent to any assignment of this Lease
or to any subletting in connection with a sale of Tenant's business, inclusive
of the Demised Premises, provided that the purchaser has a tangible net worth at
the time of such transaction equal to or greater than the greater of: (i)
Tenant's tangible net worth on the date of this Lease, or (ii) Tenant's tangible
net worth on the date of such transaction.
10.02 RECAPTURE
Except as provided in Section 10.01(e) Landlord shall have the option to exclude
from the Premises covered by this Lease ("recapture"), the entire space proposed
to be sublet or subject to the assignment, effective as of the proposed
commencement date of such sublease or assignment in any case where the Tenant
proposes to sublet or assign 6,600 square feet or more of the Premises. If
Landlord elects to recapture, Tenant shall surrender possession of the space
proposed to be subleased or subject to the assignment to Landlord on the
effective date of recapture of such space from the Premises such date being the
Termination Date for such space. Effective as of the date of recapture of any
portion of the Premises pursuant to this section, the Monthly Base Rent,
Rentable Area of the Premises and Tenant's Share shall be adjusted accordingly.
10.03 EXCESS RENT
(a) Tenant shall pay Landlord on the first day of each month during the term of
the sublease, fifty percent (50%) of the amount by which the sum of all rent and
other consideration (direct or indirect) but exclusive of any amount received
for the sale of all furniture, fixtures and equipment that does not exceed the
unamortized value thereof received from the subtenant for such month exceeds:
that portion of the Monthly Base Rent and Rent Adjustments due under this Lease
for said month which is allocable to the space sublet, less all reasonable costs
and expenses for the subletting of such space including but not limited to: (1)
brokerage commissions and attorneys' fees and expenses, (2) advertising for
subtenants; (3) the actual costs paid in making any improvements or
substitutions in the Premises required by any sublease; and (4) "free rent"
periods, costs of any inducements or concessions given to subtenant, moving
costs, and other amounts in respect of such subtenant's other leases or
occupancy arrangements.
24
(b) Except as set forth in (a) above, Tenant shall pay Landlord on the effective
date of the assignment fifty (50%) percent of the amount of all consideration
(direct or indirect) received from the assignee, less reasonable costs and
expenses for the assignment of such space, including but not limited to: (1)
brokerage commissions and attorney's fees and expenses; (2) advertising for
assignees; (3) the actual costs paid in making any improvements or substitutions
in the Premises required by any assignment; and (4) "free rent" periods, costs
of any inducements or concessions given to assignee, moving costs, and other
amounts in respect of such assignee's other leases or occupancy arrangements.
10.04 TENANT LIABILITY
In the event of any sublease or assignment, Tenant shall not be released or
discharged from and shall remain jointly and severally primarily liable for any
liability, whether past, present or future, under this Lease, including any
liability arising from the exercise of any renewal or expansion option.
10.05 ASSUMPTION AND ATTORNMENT
If Tenant shall assign this Lease as permitted herein, the assignee shall
expressly assume all of the obligations of Tenant hereunder from and after the
date of the Assignment in a written instrument reasonably satisfactory to
Landlord and furnished to Landlord upon execution thereof. If Tenant shall
sublease the Premises as permitted herein, Tenant shall, at Landlord's option,
within fifteen (15) days following any request by Landlord, obtain and furnish
to Landlord the written agreement of such subtenant to the effect that the
subtenant will attorn to Landlord and will pay all subrent directly to Landlord.
ARTICLE ELEVEN
DEFAULT AND REMEDIES
11.01 EVENTS OF DEFAULT
The occurrence or existence of any one or more of the following shall constitute
a "Default" by Tenant under this Lease:
(i) Tenant fails to pay any installment or-other payment of Rent
including without limitation Rent Adjustment Deposits or Rent
Adjustments within five (5) days after notice that the same was not
paid when due;
25
(ii) Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease or Exhibits "B" and/or Exhibit
"D" and fails to cure such default within thirty (30) days after
written notice thereof to Tenant (unless the default involves a
hazardous condition, which shall be cured forthwith), provided that if
such failure to observe or perform cannot, with the exercise of
reasonable effort be cured within such thirty (30) day period, the same
shall not constitute a default if Tenant commences to cure during such
30 day period and thereafter diligently prosecutes such cure to
completion;
(iii) the interest of Tenant in this Lease is levied upon under
execution or other legal process;
(iv) a petition is filed by or against Tenant to declare Tenant
bankrupt or seeking a plan of reorganization or arrangement under any
Chapter of the Bankruptcy Act or any similar law, or any amendment,
replacement or substitution therefor, or to delay payment of, reduce or
modify Tenant's debts, which in the case of an involuntary action is
not discharged or stayed within sixty (60) days;
(v) Tenant is declared insolvent by law or any assignment of
Tenant's property is made for the benefit of creditors;
(vi) a receiver is appointed for Tenant or Tenant's property, which
appointment is not discharged or stayed within sixty (60) days;
(vii) Tenant having abandoned the Premises and ceased paying rent;
(viii) upon the dissolution of Tenant.
11.02 LANDLORD'S REMEDIES
(a) If a Default occurs, Landlord shall have the rights and remedies
hereinafter set forth, which shall be distinct and cumulative: (i) Landlord may
terminate this Lease by giving Tenant ten (10) days notice of Landlord's
election to do so, in which event, the term of this Lease shall end and all of
Tenant's rights and interests shall expire on the date stated in such notice,
but Tenant shall nevertheless remain liable for the payment of Rent and all
other sums due, payable and/or owing by it hereunder, which obligations shall
expressly survive the termination of this Lease; (ii) Landlord may terminate
Tenant's right of possession of the Premises without terminating this Lease by
giving ten (10) days notice to Tenant that Tenant's right of possession shall
end on the date specified in such notice but Tenant shall nevertheless remain
liable for the payment of Rent and all other sums due, payable and/or owing by
it hereunder; or (iii) Landlord may enforce the provisions of this Lease and may
enforce and protect the rights of the Landlord hereunder by a suit or suits in
equity or at law for the specific performance of any covenant or agreement
contained herein, or for the enforcement of any other appropriate legal or
equitable remedy, including recovery of all monies due or to become due for the
balance of the Term from Tenant under any of the provisions of this Lease.
26
(b) (1) In the event that Landlord terminates the Lease or Tenant's
right to possession, Landlord shall be entitled to recover as damages for loss
of the bargain and not as a penalty, Rent for the balance of the Term as and
when due, plus all Landlord's expenses of reletting, including without
limitation, repairs, alterations, improvements, additions, decorations, legal
fees and brokerage commissions (collectively, the "Reletting Expenses"), less
any rent received by Landlord for the Premises during such period.
(2) No termination of this Lease by Landlord as provided herein
shall relieve Tenant of its liability and obligations under this Lease, and such
liability and obligations shall survive any such termination. In the event of
any such termination, whether or not the Premises shall have been relet, Tenant
shall pay to Landlord each month the base rent and additional rent and other
payments required to be paid by Tenant up to the time of such termination, and
thereafter Tenant, until the end of what would have been the term of this Lease
in the absence of such termination, shall be liable to Landlord for, and shall
pay to Landlord each month:
(i) The amount of the base rent, additional rent and other
payments which would be payable under this Lease by Tenant if this Lease were
still in effect together with any and all reasonable costs of any kind or nature
whatsoever, paid or incurred by Landlord as a result of such termination, which
costs shall be payable by Tenant forthwith, less
(ii) The net proceeds, if any, of any reletting, after
deducting all of Landlord's expenses in connection with such reletting,
including all repossession costs, brokerage commissions, legal expenses,
reasonable attorneys' fees, alteration costs, repairs and other reasonable
expenses of preparation for such reletting.
Tenant shall pay such current damages (herein called "deficiency") to Landlord
monthly on the days on which the base rent would have been payable under this
Lease if this Lease were still in effect, and Landlord shall be entitled to
recover from Tenant each monthly deficiency as the same shall arise. However, if
Landlord in its sole discretion so elects, at any time after any such
termination, Tenant shall pay to Landlord, within thirty (30) days of Landlord's
demand thereof, as and for liquidated and agreed final damages for Tenant's
default, an amount equal to the difference between the base rent, additional
rent and other payments hereunder for the unexpired portion of the term of this
Lease and the then fair and reasonable rental value of the Premises for the same
period discounted to present value based on the then current discount rate. If
the whole or any part of the Premises be relet by Landlord for the unexpired
term of this Lease or any portion thereof in an arms length transaction, before
presentation of proof of such liquidated damages to any court, commission or
tribunal, the amount of rent reserved upon such reletting shall be deemed the
fair and reasonable rental value for the whole or part of the Premises so relet
during the term of the reletting. Nothing herein contained shall limit or
prejudice the right of Landlord to prove for and obtain as liquidated damages by
reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time, whether or not such amount be
greater, equal to, or less than the amount of the differences referred to above.
27
(c) In the event Landlord proceeds pursuant to subparagraph (a)(i) or
(ii) above, Landlord may, but shall not be obligated to relet the Premises, or
any part thereof for the account of Tenant, for such rent and term and upon such
terms and conditions as are reasonably acceptable to Landlord. For purposes of
such reletting, Landlord is authorized to decorate, repair, alter and improve
the Premises to the extent reasonably necessary or desirable. If the Premises
are relet and the consideration realized therefrom after payment of all
Landlord's Reletting Expenses, is insufficient to satisfy the payment when due
of Rent reserved under this Lease for any monthly period, then Tenant shall pay
Landlord upon demand any such deficiency monthly. If such consideration is
greater than the amount necessary to pay the full amount of the Rent, the full
amount of such excess shall be retained by Landlord (and shall in no event be
payable to Tenant) and applied against any deficiency of Tenant hereunder.
Tenant agrees that Landlord may file suit to recover any sums due to Landlord
hereunder from time to time and that such suit or recovery of any amount due
Landlord hereunder shall not be any defense to any subsequent action brought for
any amount not theretofore reduced to judgment in favor of Landlord.
(d) In the event a Default occurs, Landlord may, at Landlord's option,
and pursuant to and with process of law, enter into the Premises, remove
Tenant's property, fixtures, furnishings, signs and other evidences of tenancy,
and take and hold such property; provided, however, that such entry and
possession shall not terminate this Lease or release Tenant, in whole or in
part, from Tenant's obligation to pay the Rent reserved hereunder for the full
Term or from any other obligation of Tenant under this Lease. Any and all
property which may be removed from the Premises by Landlord pursuant to the
authority of law, to which Tenant is or may be entitled, may be handled, removed
or stored by Landlord at the risk, cost and expense of Tenant, and Landlord
shall in no event, absent Landlord's gross negligence, be responsible for the
value, preservation or safekeeping thereof. Tenant shall pay Landlord, upon
demand, any and all reasonable expenses incurred in such removal and all storage
charges against such property so long as the same shall be in the Landlord's
possession or under the Landlord's control. Any such property of Tenant not
retaken from storage by Tenant after thirty (30) days notice given to Tenant
after the Termination Date by appropriate legal means shall be conclusively
presumed to have been conveyed by Tenant to Landlord under this Lease as a bill
of sale without further payment or credit by Landlord to Tenant.
(e) Notwithstanding anything contained herein to the contrary Landlord
waives any common law or statutory right of distraint.
11.03 ATTORNEY'S FEES
28
Tenant or Landlord shall pay upon demand, all reasonable costs and expenses,
including reasonable attorneys' fees, incurred by the other party in enforcing
the performance by Landlord and/or Tenant of any obligations under this Lease,
or resulting from a Default, or incurred by the non-defaulting party in any
litigation, negotiation or transaction in which such non-defaulting party to
become involved or concerned.
11.04 BANKRUPTCY
The following provisions shall apply in the event of the bankruptcy or
insolvency of Tenant:
(a) In connection with any proceeding under Chapter 7 of the Bankruptcy
Code where the trustee of Tenant elects to assume this Lease for the purposes of
assigning it, such election or assignment, may only be made upon compliance with
the provisions of (b) and (c) below, which conditions Landlord and Tenant
acknowledge to be commercially reasonable. In the event the trustee elects to
reject this Lease then Landlord shall immediately be entitled to possession of
the Premises without further obligation to Tenant or the trustee.
(b) Any election to assume this Lease under Chapter 11 or 13 of the
Bankruptcy Code by Tenant as debtor-in-possession or by Tenant's trustee (the
"Electing Party") must provide for:
The Electing Party to cure or provide to Landlord adequate assurance
that it will cure all monetary defaults under this Lease within thirty
(30) days from the date of assumption and it will cure all nonmonetary
defaults (or diligently proceed to cure all nonmonetary default) under
this Lease within thirty (30) days from the date of assumption.
Landlord and Tenant acknowledge such condition to be commercially
reasonable.
(c) If the Electing Party has assumed this Lease or elects to assign
Tenant's interest under this Lease to any other person, such interest may be
assigned only if the intended assignee has provided adequate assurance of future
performance (as herein defined), of all of the obligations imposed on Tenant
under this Lease.
For the purposes hereof, "adequate assurance of future performance"
means that Landlord has ascertained that each of the following
conditions has been satisfied:
(i) The assignee has submitted a current financial statement, certified
by its chief financial officer, which shows a net worth and working
capital in amounts sufficient to
29
assure the future performance by the assignee of Tenant's obligations
under this Lease; and
(ii) Landlord has obtained consents or waivers from any third parties
which may be required under a lease, mortgage, financing arrangement,
or other agreement by which Landlord is bound, to enable Landlord to
permit such assignment.
(d) Landlord's acceptance of rent or any other payment from any
trustee, receiver, assignee, person, or other entity will not be deemed to have
waived, or waive, the requirement of Landlord's consent, Landlord's right to
terminate this Lease for any transfer of Tenant's interest under this Lease
without such consent, or Landlord's claim for any amount of Rent due from
Tenant.
ARTICLE TWELVE
SURRENDER OF PREMISES
12.01 IN GENERAL
Tenant shall not be required to remove the installation which constituted the
Landlord's Work at the commencement of the term hereof. Upon the Termination
Date, Tenant shall surrender and vacate the Premises immediately and deliver
possession thereof to Landlord in a clean, and good condition, ordinary wear and
tear, and damage caused by casualty and Landlord and/or its agents, employees
and servants excepted. Tenant shall deliver to Landlord all keys to the
Premises. Tenant shall be entitled to remove from the Premises all movable
personal property of Tenant, Tenant's trade fixtures and Tenant Alterations.
Tenant shall remove all Tenant Alterations which at the time of their
installation Landlord by notice to Tenant required Tenant to remove. Tenant
shall immediately repair all damage resulting from removal of any of Tenant's
property, furnishings or Tenant Additions, shall close all floor, ceiling and
roof openings and shall restore the Premises to a good condition as reasonably
determined by Landlord. If any of the Tenant Additions which were installed by
Tenant involved the lowering of ceilings, raising of floors or the installation
of specialized wall or floor coverings or lights, then Tenant shall also be
obligated to return such surfaces to their condition prior to the commencement
of this Lease. In the event possession of the Premises is not delivered to
Landlord as required hereunder, or if Tenant shall fail to remove those items
described above, Landlord may, at Tenant's reasonable expense, remove any of
such property therefrom without any liability to Landlord and undertake, at
Tenant's reasonable expense such restoration work as Landlord deems necessary or
advisable.
30
12.02 LANDLORD'S RIGHTS
All property which may be removed from the Premises by Landlord shall be
conclusively presumed to have been abandoned by Tenant and Landlord may deal
with such property as provided in Section 11.02(d). Tenant shall also reimburse
Landlord for all reasonable costs and expenses incurred by Landlord in removing
any of Tenant Alterations and in restoring the Premises to the condition
required by this Lease at the Termination Date.
ARTICLE THIRTEEN
HOLDING OVER
Tenant shall pay Landlord the greater of (i) double the monthly Rent (except
that for the first 60 days of the holdover Tenant shall pay 150% rather than
double) payable for the month immediately preceding the holding over (including
increases (but not double) for Rent Adjustments which Landlord may reasonably
estimate) or, (ii) double (except that for the first 60 days of the holdover
Tenant shall pay 150% rather than double) the fair market rental value of the
Premises as reasonably determined by Landlord, for each month or portion thereof
that Tenant retains possession of the Premises, or any portion thereof, after
the Termination Date (without reduction for any partial month that Tenant
retains possession). The provisions of this Article shall not constitute a
waiver by Landlord of any re-entry rights of Landlord and Tenant's continued
occupancy of the Premises shall be as a tenancy in sufferance.
ARTICLE FOURTEEN
DAMAGE BY FIRE OR OTHER CASUALTY
14.01 SUBSTANTIAL UNTENANTABILITY
(a) If any fire or other casualty (whether insured or uninsured)
renders all or a substantial portion of the Premises or the Building
untenantable, Landlord shall, with reasonable promptness after the occurrence of
such damage, estimate the length of time that will be required to Substantially
Complete the repair and restoration and shall by notice advise Tenant of such
estimate ("Landlord's Notice"). If Landlord estimates that the amount of time
required to Substantially Complete such repair and restoration will exceed one
hundred eighty (180) days from the date such damage occurred, then Landlord, or
Tenant (but with respect to Tenant only if all or a substantial portion of the
Premises is rendered untenantable and the time period in excess of one hundred
eighty (180) days relates to the repair of the Premises), shall have the right
to terminate this Lease as of the date of such damage upon giving written notice
to the other at any time within twenty (20) days after delivery of Landlord's
Notice, provided that if Landlord so chooses, Landlord's Notice may also
constitute such notice of termination.
31
(b) Unless this Lease is terminated as provided in the preceding subparagraph,
Landlord shall proceed with reasonable promptness, to repair and restore the
Premises to its condition as existed prior to such casualty, subject to
reasonable delays for insurance adjustments and Force Majeure delays, and also
subject to zoning laws and building codes then in effect. Notwithstanding
anything contained herein to the contrary, unless Landlord restores the Premises
to its condition as existed prior to such casualty within three hundred
sixty-five (365) days from the date of the casualty, (inclusive of Force
Majeure) Tenant may cancel this Lease on written notice to Landlord given within
10 days of the expiration of the 365 day period. If such notice to cancel is not
given within the above 10 day period then in that event Tenant shall have no
further right to cancel this Lease.
(c) Tenant acknowledges that Landlord shall be entitled to the full
proceeds of any insurance coverage, whether carried by Landlord or Tenant, for
damages to the Premises, except for those proceeds of Tenant's insurance of its
own personal property and equipment which would be removable by Tenant at the
Termination Date. All such insurance proceeds shall be payable to Landlord
whether or not the Premises are to be repaired and restored.
(d) Notwithstanding anything to the contrary herein set forth: (i)
Landlord shall have no duty pursuant to this Section to repair or restore any
portion of any Tenant Additions, or to expend for any repair or restoration of
the Premises or Building amounts in excess of insurance proceeds paid to
Landlord and available for repair or restoration of the Premises or Building
amounts in excess of insurance proceeds paid to Landlord and available for
repair or restoration; and (ii) Tenant shall not have the right to terminate
this Lease pursuant to this Section if any damage or destruction was caused by
the act or neglect of Tenant, its agent or employees.
(e) Any repair or restoration of the Premises performed by Tenant shall
be in accordance with the provisions of Article Nine hereof.
14.02 INSUBSTANTIAL UNTENANTABILITY
If the Premises or the Building is damaged by a casualty but neither is rendered
substantially untenantable, then Landlord shall proceed to repair and restore
the Building or the Premises other than Tenant Alterations with reasonable
promptness, and unless Landlord completes such repair and restoration on or
before one hundred eighty (180) days following the date of the casualty
(inclusive of Force Majeure) and insurance adjustment, Tenant may cancel this
Lease
32
on written notice to Landlord given within 10 days of the expiration of the 180
day period. If such notice to cancel is not given within the above 10 day period
then in that event Tenant shall have no further right to cancel this Lease. In
the event of any damage to the Premises which occurs during the last six (6)
months of the Term, either Tenant or Landlord shall have the right to terminate
this Lease as of the date of such casualty by giving written notice thereof to
the other within twenty (20) days after the date of such casualty.
14.03 RENT ABATEMENT
Except for the wilful act of Tenant or its agents, employees, contractors or
invitees, if all or any part of the Premises are rendered untenantable by fire
or other casualty and this Lease is not terminated, Monthly Base Rent and Rent
Adjustments shall abate for that part of the Premises which is untenantable for
the purposes herein permitted on a per diem basis from the date of the casualty
until Landlord has Substantially Completed the repair and restoration work in
the Premises which it is required to perform, provided, that as a result of such
casualty, Tenant does not occupy the portion of the Premises which is
untenantable during such period.
ARTICLE FIFTEEN
EMINENT DOMAIN
15.01 TAKING OF WHOLE OR SUBSTANTIAL PART
In the event the whole or any substantial part of the Building, the Premises the
ingress or egress to and from public roads, or so much of the parking areas as
to reduce the parking available to a level below that which is required by law,
is taken or condemned by any competent authority for any public use or purpose
(including a deed given in lieu of condemnation), this Lease shall terminate as
of the date title vests in such authority, and Monthly Base Rent and Rent
Adjustments shall be apportioned as of the Termination Date. Notwithstanding
anything to the contrary herein set forth, in the event the taking is temporary
(for less than the remaining term of the Lease) , Landlord may elect either (i)
to terminate this Lease or (ii) permit Tenant to receive the entire award in
which case Tenant shall continue to pay Rent and this Lease shall not terminate.
15.02 TAKING OF PART
In the event a part of the Building or the Premises is taken or condemned by any
competent authority (or a deed is delivered in lieu of condemnation) and this
Lease is not terminated, the Lease shall be amended to reduce, or increase, as
the case may be, the Monthly Base Rent and Tenant's Proportionate Share to
reflect the Rentable Area of the Premises or Building, as the
33
case may be, remaining after any such taking or condemnation. Landlord, upon
receipt and to the extent of the award in condemnation (or proceeds of sale)
shall make necessary repairs and restorations to the Premises (exclusive of
Tenant Alterations) and to the Building to the extent necessary to constitute
the portion of the Building not so taken or condemned as a complete
architectural and economically efficient unit. Notwithstanding the foregoing, if
as a result of any taking, or a governmental order that the grade of any street
or alley adjacent to the Building is to be changed and such taking or change of
grade makes it necessary or desirable to substantially remodel or restore the
Building or prevents the economical operation of the Building, Landlord shall
have the right to terminate this Lease upon ninety (90) days prior written
notice to Tenant.
15.03 COMPENSATION
Landlord shall be entitled to receive the entire award (or sale proceeds) from
any such taking, condemnation or sale without any payment to Tenant, and Tenant
hereby assigns to Landlord Tenant's interest, if any, in such award; provided,
however, Tenant shall have the right separately to pursue against the condemning
authority a separate award in respect of the loss, if any, to Tenant for Tenants
furniture, fixtures, equipments and moving expenses paid for by Tenant without
any credit or allowance from Landlord so long as there is no diminution of
Landlord's award as a result.
ARTICLE SIXTEEN
INSURANCE
16.01 TENANT'S INSURANCE
Tenant, at Tenant's expense, agrees to maintain in force, with a company or
companies acceptable to Landlord, during the Term: (a) Commercial General
Liability Insurance on a primary basis and without any right of contribution
from any insurance carried by Landlord covering the Premises on an occurrence
basis against all claims for personal injury, bodily injury, death and property
damage, including contractual liability covering the indemnification provisions
in this Lease. Such insurance shall be for such limits that are reasonably
required by Landlord from time to time but not less than a combined single limit
of Five Million and No/100 Dollars ($5,000,000.00); (b) Workers' Compensation
and Employers' Liability Insurance for an amount of not less than required by
the laws of The State of New Jersey; (c) "All Risks" property insurance in an
amount adequate to cover the full replacement cost of all equipment,
installations, fixtures and contents of the Premises in the event of loss and
any such policy shall contain a provision requiring the insurance carriers to
waive their rights of subrogation against Landlord; (d) In the event a motor
vehicle is to be used by Tenant in connection with its business operation from
the Premises, Comprehensive Automobile Liability Insurance coverage
34
with limits of not less than Three Million and No/100 Dollars ($3,000,000.00)
combined single limit coverage against bodily injury liability and property
damage liability arising out of the use by or on behalf of Tenant, its agents
and employees in connection with this Lease, of any owned, non-owned or hired
motor vehicles; and (e) such other insurance or coverages as Landlord reasonably
requires or a Mortgagee reasonably requires which is similar in amount and
coverage to that carried by prudent owner's of property in Bergen County similar
to the Building. Tenant may satisfy the insurance requirements imposed upon it
under this Lease by a combination of primary and umbrella policies.
16.02 FORM OF POLICIES
Each policy referred to in 16.01 shall satisfy the following requirements. Each
policy shall (i) name Landlord and the Indemnitees as additional insured, (ii)
be issued by one or more responsible insurance companies licensed to do business
in the State of New Jersey reasonably satisfactory to Landlord and reasonably
satisfactory to Mortgagee, (iii) where applicable, provide for deductible
amounts reasonably satisfactory to Landlord and not permit co-insurance, (iv)
shall provide that such insurance may not be canceled or amended without thirty
(30) days' prior written notice to the Landlord and Mortgagee, and (v) shall
provide that the policy shall not be invalidated should the insured waive in
writing prior to a loss, any or all rights of recovery against any other party
for losses covered by such policies. Tenant shall deliver to Landlord,
certificates of insurance and at Landlord's request, copies of all policies and
renewals thereof to be maintained by Tenant hereunder, not less than ten (10)
days prior to the Commencement Date and not less than ten (10) days prior to the
expiration date of each policy.
16.03 LANDLORD'S INSURANCE
Landlord agrees to purchase and keep in full force and effect during the Term
hereof, including any extensions or renewals thereof, insurance under policies
issued by insurers of recognized responsibility, qualified to do business in the
State of New Jersey on the Building in amounts not less than 100% percent of the
then full replacement cost (without depreciation) of the Building (above
foundations) against fire and such other risks as may be included in standard
forms of All Risk coverage insurance reasonably available from time to time.
Landlord agrees to maintain in force during the Term, Commercial General
Liability Insurance covering the Building on an occurrence basis against all
claims for personal injury, bodily injury, death and property damage. Such
insurance shall be for a combined single limit of Five Million and No/100
Dollars ($5,000,000.00). Neither Landlord's obligation to carry such insurance
nor the carrying of such insurance shall be deemed to be an indemnity by
Landlord with respect to any claim, liability, loss, cost or expense due, in
whole or in part, to Tenant's negligent acts or omissions or wilful misconduct
and Tenant shall have no right to any proceeds obtained or received by Landlord
with respect to any such insurance.
35
16.04 WAIVER OF SUBROGATION
(a) Landlord agrees that, if obtainable it will include in its "All
Risks" policies appropriate clauses pursuant to which the insurance companies
(i) waive all right of subrogation against Tenant with respect to losses payable
under such policies and/or (ii) agree that such policies shall not be
invalidated should the insured waive in writing prior to a loss any or all right
of recovery against any party for losses covered by such policies.
(b) Tenant agrees to include, if obtainable in its "All Risks"
insurance policy or policies on its furniture, furnishings, fixtures and other
property removable by Tenant under the provisions of its lease of space in the
Building appropriate clauses pursuant to which the insurance company or
companies (i) waive the right of subrogation against Landlord and/or any tenant
of space in the Building who waives against Tenant with respect to losses
payable under such policy or policies and/or (ii) agree that such policy or
policies shall not be invalidated should the insured waive in writing prior to a
loss any or all right of recovery against any party for losses covered by such
policy or policies. If Tenant is unable to obtain in such policy or policies
either of the clauses described in the preceding sentence, Tenant shall, if
legally possible and without necessitating a change in insurance carriers, have
Landlord named in such policy or policies as an additional insured. If Landlord
shall be named as an additional insured in accordance with the foregoing,
Landlord agrees to endorse promptly to the order of Tenant, without recourse,
any check, draft, or order for the payment of money representing the proceeds of
any such policy or representing any other payment growing out of or connected
with said policies, and Landlord does hereby irrevocably waive any and all
rights in and to such proceeds and payments.
(c) Provided that Landlord's right of full recovery under its policy or
policies aforesaid is not adversely affected or prejudiced thereby, Landlord
hereby waives any and all right of recovery which it might otherwise have
against Tenant, its servants, agents and employees, for loss or damage occurring
to the Building and the fixtures, appurtenances and equipment therein, to the
extent the same is covered by Landlord's insurance, or would have been covered
by Landlord's insurance had Landlord maintained the insurance required to be
maintained by Tenant under the terms and conditions of this Lease,
notwithstanding that such loss or damage may result from the negligence or fault
of Tenant, its servants, agents or employees. Provided that Tenant's right of
full recovery under its aforesaid policy or policies is not adversely affected
or prejudiced thereby, Tenant hereby waives any and all right of recovery which
it might otherwise have against Landlord, its servants, and employees and
against every other tenant in the Building who shall have executed a similar
waiver as set forth in this Section 16.04 (c) for loss or damage to Tenant's
furniture, furnishings, fixtures and other property removable by Tenant under
the provisions hereof to the extent that same is covered by
36
Tenant's insurance, or would have been covered by Tenant's insurance had Tenant
maintained the insurance required to be maintained by Tenant under the terms and
conditions of this Lease, notwithstanding that such loss or damage may result
from the negligence or fault of Landlord, its servants, agents or employees, or
such other tenant and the servants, agents or employees thereof.
(d) Landlord and Tenant hereby agree to advise the other promptly if
the clauses to be included in their respective insurance policies pursuant to
subparagraphs (a) and (b) above cannot be obtained on the terms hereinbefore
provided and thereafter to furnish the other with a certificate of insurance or
copy of such policies showing the naming of the other as an additional insured,
as aforesaid. Landlord and Tenant hereby also agree to notify the other promptly
of any cancellation or change of the terms of any such policy which would affect
such clauses or naming. All such policies which name both Landlord and Tenant as
additional insured shall, to the extent obtainable, contain agreements by the
insurers to the effect that no act or omission of any additional insured will
invalidate the policy as to the other additional insured.
16.05 NOTICE OF CASUALTY
Tenant shall give Landlord notice in case of a fire or accident in the Premises
promptly after Tenant is aware of such event.
ARTICLE SEVENTEEN
WAIVER OF CLAIMS AND INDEMNITY
17.01 WAIVER OF CLAIMS
To the extent permitted by law, Tenant releases the Indemnitees from, and waives
all claims against Indemnitees for, damage to person or property sustained by
the Tenant or any occupant of the Building or Premises resulting directly or
indirectly from any existing or future condition, defect, matter or thing in and
about the Property or the Premises or any part of either or any equipment or
appurtenance therein, or resulting from any accident in or about the Property,
or resulting directly or indirectly from any act or neglect of any tenant or
occupant of the Building or of any other persons, including Landlord's agents
and servants. Tenant hereby waives any consequential damages, compensation or
claims for inconvenience or loss of business, rents, or profits as a result of
such injury or damage regardless of whether caused by Landlord's willful,
negligent or wrongful acts. If any such damage, whether to the Premises or to
any part of the Property or any part thereof, or whether to Landlord or to other
tenants in the Building, results from any act or neglect of Tenant, its
employees, servants, agents, contractors, invitees and
37
customers, Tenant shall be liable therefor and Landlord may, at Landlord's
option, repair such damage and Tenant shall, upon demand by Landlord, as payment
of additional Rent hereunder, reimburse Landlord within ten (10) days of demand
for the total cost of such repairs, in excess of amounts, if any, paid to
Landlord under insurance covering such damages, or would have been paid to
Landlord had Landlord maintained the insurance required to be maintained by
Landlord under the terms and conditions of this Lease. Tenant shall not be
liable for any damage caused by its acts or neglect if Landlord has recovered
the full amount of the damage from proceeds of insurance policies required to be
maintained under the terms and condition of this Lease.
17.02 INDEMNITY BY TENANT
To the extent permitted by law, Tenant agrees to indemnify, protect, defend and
hold the Indemnitees harmless against any and all actions, claims, demands,
costs and expenses, including reasonable attorney's fees and expenses for the
defense thereof, arising from Tenants acts or omissions or the acts or omissions
of Tenant's agents, servants, and/or employees in connection with Tenant's
occupancy of the Premises, from the undertaking of any Tenant Alterations or
repairs to the Premises, from the conduct of Tenant's business on the Premises,
or from any breach or default on the part of Tenant in the performance of any
covenant or agreement on the part of Tenant to be performed pursuant to the
terms of this Lease, or from any willful or negligent act of Tenant, its agents,
contractors, servants, employees, customers or invitees, in or immediately about
the Premises, but only to the extent of Landlord's liability, if any, in excess
of amounts, if any, paid to Landlord under insurance covering such claims or
liabilities. Tenant shall not be responsible for the negligent acts of the
Landlord or Landlord's agents, servants and/or employees. In case of any action
or proceeding brought against the Indemnitees by reason of any such claim, upon
notice from Landlord, Tenant covenants to defend such action or proceeding by
counsel reasonably satisfactory to Landlord, it being understood that counsel
retained by the applicable insurance company shall be deemed satisfactory.
ARTICLE EIGHTEEN
RULES AND REGULATIONS
18.01 RULES
Tenant agrees for itself and for its subtenants, employees, agents, and invitees
to comply with the rules and regulations listed on Exhibit D attached hereto and
with all reasonable modifications and additions thereto which Landlord on
reasonable notice to Tenant may make
38
from time to time for the case safety and efficient operation of the Building,
its occupants and business invitees.
18.02 ENFORCEMENT
Nothing in this Lease shall be construed to impose upon the Landlord any duty or
obligation to enforce the rules and regulations as set forth on Exhibit D or as
hereafter adopted, or the terms, covenants or conditions of any other lease as
against any other tenant, and the Landlord shall not be liable to the Tenant for
violation of the same by any other tenant, its servants, employees, agents,
visitors or licensees. Landlord shall use reasonable efforts to enforce the
rules and regulations of the Building in a uniform and non-discriminatory
manner. Tenant shall pay to Landlord all damages caused by Tenant's failure to
comply with the provisions of this Article Eighteen.
ARTICLE NINETEEN
LANDLORD'S RESERVED RIGHTS
Landlord shall have the following rights exercisable without notice to Tenant
and without being deemed an eviction or disturbance of Tenant's use or
possession of the Premises or giving rise to any claim for setoff or abatement
of Rent: (1) To change the Building's name or street address upon thirty (30)
days' prior written notice to Tenant except that Landlord shall not name the
Building for any Company listed on Exhibit "G" during the Term of this Lease;
(2) To install, affix and maintain all signs on the exterior and/or interior of
the Building; (3) To designate and/or approve prior to installation, all types
of signs, window shades, blinds, drapes, awnings or other similar items, and all
internal lighting that may be visible from the exterior of the Premises; (4)
Upon reasonable notice to Tenant, to display the Premises to prospective tenants
at reasonable hours during the last nine (9) months of the Term, and at all
times during the Term to prospective lenders, partners, joint venturers,
purchasers or other interested parties; (5) To grant to any party the exclusive
right to conduct any business or render any service in or to the Building,
provided such exclusive right shall not operate to prohibit Tenant from using
the Premises for the purpose permitted hereunder or to sublease the Premises on
the terms and conditions herein permitted; (6) To change the arrangement and/or
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, washrooms or public portions of the Building, and to close entrances,
doors, corridors, elevators or other facilities, provided that such action shall
not materially and adversely interfere with Tenant's access to the Premises or
the Building; (7) To have access for Landlord and other tenants of the Building
to any mail chutes and boxes located in or on the Premises as required by any
applicable rules of the United States Post Office; and (8) To close the Building
after normal business hours, except that Tenant and its employees and invitees
shall be entitled to admission at all times, under such regulations as Landlord
prescribes for security purposes.
39
ARTICLE TWENTY
ESTOPPEL CERTIFICATE
20.01 IN GENERAL
(a) Within fifteen (15) days after request therefor by Landlord, Mortgagee or
any prospective mortgagee or owner, Tenant agrees as directed in such request to
execute an Estoppel Certificate in recordable form, binding upon Tenant,
certifying (i) that this Lease is unmodified and in full force and effect (or if
there have been modifications, a description of such modifications and that this
Lease as modified is in full force and effect); (ii) the dates to which Rent has
been paid; (iii) that Tenant is in the possession of the Premises if that is the
case; (iv) that Landlord is not in default under this Lease, or, if Tenant
believes Landlord is in default, the nature thereof in detail; (v) that Tenant
has no off-sets or defenses to the performance of its obligations under this
Lease (or if Tenant believes there are any off-sets or defenses, a full and
complete explanation thereof) and that all sums, if any, required to be paid by
Landlord to Tenant on account of Tenant's Work or Landlord's Allowance have been
paid in full; (vi) that the Premises have been completed in accordance with the
terms and provisions hereof or the Workletter, that Tenant has accepted the
Premises and the condition thereof and of all improvements thereto and has no
claims against Landlord or any other party with respect thereto (or if that not
be the case, stating such claims) ; (vii) that if an assignment of rents or
leases has been served upon the Tenant by a Mortgagee, Tenant will acknowledge
receipt thereof and agree to be bound by the provisions thereof; (viii) that
Tenant will give to the Mortgagee copies of all notices required or permitted to
be given by Tenant to Landlord; (ix) the Commencement Date and Expiration Date
of the Lease; and (x) to any other information reasonably requested.
(b) Landlord agrees upon request to execute, acknowledge and deliver promptly to
Tenant, without the payment of any consideration therefor, any instrument or
certificate contemplated by this Section 20.01 which has been requested by
Tenant. No such instrument or certificate, however, shall provide for any
increase in Landlord's obligations hereunder.
20.02 ENFORCEMENT
In the event that Tenant fails to deliver an Estoppel Certificate, Tenant shall
be deemed to have irrevocably appointed Landlord as Tenant's attorney-in-fact to
execute and deliver such Estoppel Certificate, which execution by Landlord shall
be conclusively binding upon Tenant.
ARTICLE TWENTY-ONE
40
ARTICLE TWENTY-TWO
REAL ESTATE BROKERS
Tenant and Landlord represents to each other that, except for Edward S. Gordon
Company of New Jersey, Inc., neither Tenant nor Landlord has not dealt with any
real estate broker, sales person, or finder in connection with this Lease, and
no such person initiated or participated in the negotiation of this Lease, or
showed the Premises to Tenant. Tenant and Landlord hereby agree to indemnify,
protect, defend and hold the other harmless from and against any and all
liabilities and claims for commissions and fees arising out of a breach of the
foregoing representation. Landlord shall be responsible for all commissions to
the brokers, if any, specified in this Article, but only in accordance with a
separate agreement entered into between Landlord and such brokers.
ARTICLE TWENTY-THREE
MORTGAGEE PROTECTION
23.01 SUBORDINATION AND ATTORNMENT
This Lease is and shall be expressly subject and subordinate at all times to (i)
any ground or underlying lease of the Real Property, now or hereafter existing,
and all amendments, renewals and modifications to any such lease, and (ii) the
lien of any first mortgage or trust deed now or hereafter encumbering fee title
to the Real Property and/or the leasehold estate under any such lease, unless
such ground lease or ground lessor, or mortgage or Mortgagee, expressly provides
or elects that the Lease shall be superior to such lease or mortgage. If any
such mortgage or trust deed is foreclosed, or if any such lease is terminated,
upon request of the Mortgagee or ground lessor, as the case may be, Tenant will
attorn to the purchaser at the foreclosure sale or to the ground lessor under
such lease, as the case may be, provided, however, that such purchaser or ground
lessor shall not be (i) bound by any payment of Rent for more than one month in
advance except for (x) payments in the nature of security for the performance by
Tenant of its obligations under this Lease; and (y) free rent periods as set
forth in Section 1.01(8) of this Lease; (ii) subject to any offset, defense or
damages arising out of a default of any obligations of any preceding Landlord
except to the extent the same continues after Mortgagee has taken possession of
the Premises; (iii) bound by any amendment or modification of this Lease made
without the written consent of the Mortgagee or ground lessor; or (iv) liable
for any security deposits not actually received in cash by such purchaser or
ground lessor. This subordination shall be self-operative and no further
certificate or instrument of subordination need be required by any such
Mortgagee or ground lessor. In confirmation of such subordination, however,
Tenant shall execute promptly any reasonable certificate or instrument
41
that Landlord, Mortgagee or ground lessor may request. Upon request by such
successor in interest, Tenant shall execute and deliver reasonable instruments
confirming the attornment provided for herein. Landlord shall use its best
efforts to secure a non-disturbance agreement for the benefit of Tenant from any
future mortgage lien holder on the Building, however failure to secure the
non-disturbance agreement shall not be a default under this Lease.
23.02 MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagee or ground lessor, by registered or certified
mail, a copy of any notice of default served upon the Landlord by Tenant,
provided that prior to such notice Tenant has received notice (by way of service
on Tenant of a copy of an assignment of rents and leases, or otherwise) of the
address of such Mortgagee or ground lessor. Tenant further agrees that if
Landlord shall have failed to cure such default within the time provided for in
this Lease, then the Mortgagee or ground lessor shall have an additional thirty
(30) days after receipt of notice thereof within which to cure such default or
if such default cannot be cured within that time, then such additional time as
may be necessary, if, within such thirty (30) days, any Mortgagee or ground
lessor has commenced and is diligently pursuing the remedies necessary to cure
such default (including but not limited to commencement of foreclosure
proceedings or other proceedings to acquire possession of the Real Property, if
necessary to effect such cure). Such period of time shall be extended by any
period within which such Mortgagee or ground lessor is prevented from commencing
or pursuing such foreclosure proceedings or other proceedings to acquire
possession of the Real Property by reason of Landlord's bankruptcy. Until the
time allowed as aforesaid for Mortgagee or ground lessor to cure such defaults
has expired without cure, Tenant shall have no right to, and shall not,
terminate this Lease on account of default. This Lease may not be modified or
amended so as to reduce the rent or shorten the term, or so as to adversely
affect in any other respect to any material extent the rights of the Landlord,
nor shall this Lease be canceled or surrendered, without the prior written
consent, in each instance, of the ground lessor or the Mortgagee.
ARTICLE TWENTY-FOUR
NOTICES
(a) All notices, demands or requests provided for or permitted to be
given pursuant to this Lease must be in writing and shall be personally
delivered sent by Federal Express or other overnight courier service, or mailed
by first class, registered or certified mail, return receipt requested, postage
prepaid.
42
(b) All notices, demands or requests to be sent pursuant to this Lease
shall be deemed to have been properly given or served by delivering or sending
the same in accordance with this Section, addressed to the parties hereto at
their respective addresses listed below:
(1) Notices to Landlord shall be addressed:
IB BRELL, L.P.
c/o Koll Real Estate Co.
Mack Centre II
One Mack Centre Drive
Paramus, New Jersey 07652-3906
Attention: Richard Van Houten
with a copy to the following:
Scarinci & Hollenbeck
500 Plaza Drive
P.O. Box 3189
Secaucus, New Jersey 07096-3189
Attention: Victor E. Kinon, Esq.
(2) Notices to Tenant shall be addressed:
Prior to Commencement Date:
Professional Detailing, Inc.
599 McArthur Boulevard
Mahwah, New Jersey 07430
Attention: Ron Collins
After Commencement Date:
Professional Detailing, Inc.
10 Mountain Road
Upper Saddle River, New Jersey 07458
With a copy to the following:
Dollinger & Dollinger
365 West Passaic Street
43
Rochelle Park, New Jersey 07662
Attention: M. Dollinger, Esq.
(c) If notices, demands or requests are sent by registered or certified
mail, said notices, demands or requests shall be effective upon being deposited
in the United States mail. However, the time period in which a response to any
such notice, demand or request must be given shall commence to run from the date
of receipt on the return receipt of the notice, demand or request by the
addressee thereof. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of notice, demand or request sent.
Notices may also be served by personal service upon any officer, director or
partner of Tenant or Landlord or in the case of delivery by Federal Express or
other overnight courier service, notices shall be effective upon acceptance of
delivery by an employee, officer, director or partner of Landlord or Tenant.
(d) By giving to the other party at least thirty (30) days written
notice thereof, either party shall have the right from time to time during the
term of this Lease to change their respective addresses for notices, statements,
demands and requests, provided such new address shall be within the United
States of America.
ARTICLE TWENTY-FIVE
SIGNAGE
Tenant's name, at Tenant's cost and expense, shall be included for
identification purposes on any Landlord controlled signage in the lobby of the
Building and/or on the Real Property upon which the Building is located.
ARTICLE TWENTY-SIX
MISCELLANEOUS
26.01 LATE CHARGES
44
Except as (i) otherwise expressly provided in this Lease, and (ii) for changes
in the amounts to be paid (i.e. Rent Adjustments, Rent Deposits and/or
additional Rents which must be paid within 30 days of Notice of such change, all
payments required hereunder (other than the Monthly Base Rent, Rent Adjustments,
and Rent Adjustment Deposits, which shall be due as hereinbefore provided) to
Landlord shall be paid within ten (10) days after Landlord's demand therefor.
All such amounts (including, without limitation Monthly Base Rent, Rent
Adjustments, and Rent Adjustment Deposits) not paid within five (5) days after
the date due shall bear interest from the date due until the date paid at the
Default Rate in effect on the date such payment was due.
26.02 WAIVER OF JURY TRIAL
As a material inducement to Landlord to enter into this Lease, Tenant and
Landlord hereby waive their right to a trial by jury of any issues relating to
or arising out of obligations under this Lease. Tenant acknowledges that it has
read and understood the foregoing provision.
26.03 MEMORANDUM OF LEASE
This Lease shall not be recorded by either Landlord or Tenant. However either
party may request that a memorandum of this Lease or a memorandum setting forth
the covenants, conditions and restrictions be recorded in a form reasonably
acceptable to both excluding however the base rent and/or additional rent
payments. As a condition to the recording of such memorandum of this Lease, a
discharge of memorandum of this Lease shall be concurrently executed by the
parties and delivered to Landlord's counsel, to be held in escrow pending the
expiration or sooner termination of this Lease.
26.04 OPTION
This Lease shall not become effective as a lease or otherwise until executed and
delivered by both Landlord and Tenant. The submission of the Lease to Tenant
does not constitute a reservation of or option for the Premises.
26.05 AUTHORITY
Tenant and Landlord each represent and warrant to other that it has full
authority and power to enter into and perform its obligations under this Lease,
that the person executing this Lease is fully empowered to do so, and that no
consent or authorization is necessary from any third party. Landlord may request
that Tenant provide Landlord evidence of Tenant's authority.
45
26.06 ENTIRE AGREEMENT
This Lease, and the Exhibits attached hereto and the Workletter contain the
entire agreement between Landlord and Tenant concerning the Premises and there
are no other agreements, either oral or written. This Lease shall not be
modified except by a writing executed by Landlord and Tenant.
26.07 MODIFICATION OF LEASE FOR BENEFIT OF MORTGAGEE
If Mortgagee of Landlord requires a modification of this Lease which shall not
result in any increased cost or expense to Tenant or in any other substantial
and adverse change in the rights and obligations of Tenant hereunder, then
Tenant agrees that upon prior written notice to Tenant, the Lease may be so
modified.
26.08 EXCULPATION
Tenant agrees, on its behalf and on behalf of its successors and assigns, that
any liability or obligation under this Lease shall only be enforced against
Landlord's equity interest in the Property and in no event against any other
assets of the Landlord, or Landlord's officers or directors. Landlord agrees on
its behalf and on behalf of its successor and assigns, that any liability or
obligation under this Lease shall only be enforced against Tenant and in no
event against the Tenant's offices or directors.
26.09 ACCORD AND SATISFACTION
No payment by Tenant or receipt by Landlord of a lesser amount than any
installment or payment of Rent due shall be deemed to be other than on account
of the amount due, and no endorsement or statement on any check or any letter
accompanying any check or payment of Rent shall 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 installment or payment of Rent
or pursue any other remedies available to Landlord. No receipt of money by
Landlord from Tenant after the termination of this Lease or Tenant's right of
possession of the Premises shall reinstate, continue or extend the Term.
46
26.10 LANDLORD'S OBLIGATIONS ON SALE OF BUILDING
In the event of any sale or other transfer of the Building, Landlord shall be
entirely freed and relieved of all agreements and obligations of Landlord
hereunder accruing or to be performed after the date of such sale or transfer,
provided that all of Landlord's obligations hereunder thereafter accruing are
specifically assumed by the buyer or transferee.
26.11 BINDING EFFECT
This Lease shall be binding upon and inure to the benefit of Landlord and Tenant
and their respective heirs, legal representatives, successors and permitted
assigns.
26.12 CAPTIONS
The Article and Section captions in this Lease are inserted only as a matter of
convenience and in no way define, limit, construe, or describe the scope or
intent of such Articles and Sections.
26.13 APPLICABLE LAW
This Lease shall be construed in accordance with the laws of the State of New
Jersey. If any term, covenant or condition 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,
covenant or condition to persons or circumstances other than those as to which
it is held invalid or unenforceable, shall not be affected thereby and each
item, covenant or condition of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
26.14 ABANDONMENT
In the event Tenant abandons the Premises but is otherwise in compliance with
all the terms, covenants and conditions of this Lease, Landlord shall (i) have
the right to enter into the Premises in order to show the space to prospective
tenants, (ii) have the right to reduce the
47
services provided to Tenant pursuant to the terms of this Lease to such levels
as Landlord reasonably determines to be adequate services for an unoccupied
premises and (iii) during the last six (6) months of the Term, have the right to
prepare the Premises for occupancy by another tenant upon the end of the Term.
26.15 LANDLORD'S RIGHT TO PERFORM TENANT'S DUTIES
If Tenant fails timely to perform any of its duties under this Lease or Exhibit
B, Landlord shall have the right (but not the obligation), to perform such duty
on behalf and at the reasonable expense of Tenant upon prior notice to Tenant,
and all reasonable sums expended or reasonable expenses incurred by Landlord in
performing such duty shall be deemed to be additional Rent under this Lease and
shall be due and payable within thirty (30) days of demand by Landlord.
26.16 RIDERS
All Exhibits attached hereto and executed both by Landlord and Tenant shall be
deemed to be a part hereof and hereby incorporated herein.
26.17 ENVIRONMENTAL MATTERS
(a) (i) Tenant represents and warrants that it is not an "Industrial
Establishment" as that term is defined as of the date of this Lease in the
Industrial Site Recovery Act, N.J.S.A. 13:lk-6 et sea., as same may be amended
from time to time (the "Act"). Tenant shall not do or suffer anything that will
cause it to become an Industrial Establishment under the Act during the Term.
Landlord may from time to time require Tenant at Tenant's sole expense to
provide proof satisfactory to Landlord that Tenant is not an Industrial
Establishment. In the event that Tenant now is or hereafter becomes an
Industrial Establishment (which event shall cause Tenant to be in Default of
this Lease) Tenant shall comply with all conditions as set forth below.
(ii) Tenant agrees that it shall, at its sole cost
and expense, fulfill, observe and comply with all of the terms and provisions of
the Act and all rules, regulations, ordinances, opinions, orders and directives
issued or promulgated pursuant to or in connection with said Act by the
Department of Environmental Protection ("DEP") related in any way to Tenant's
use and occupancy of the Premises. (The Act and all said rules, regulations,
ordinances, opinions, orders and directives are hereinafter collectively
referred to as "ISRA"). Without limiting the foregoing, upon Landlord's request
therefor, and in all events no later than sixty (60) days prior to "closing,
terminating or transferring operations" (as said terms are
48
defined in ISRA) which would be subject to an obligation to comply with ISRA if
an industrial establishment is present at the Premises, Tenant, at its sole cost
and expense, shall provide the Landlord with a true copy of:
(A) an non-applicability letter from DEP (or such other agency
or body which shall then have jurisdiction over ISRA matters) in form
satisfactory to Landlord's counsel, stating that ISRA does not apply to Tenant,
Tenant's use and occupancy of the Premises and to the closing, terminating or
transferring of Tenant's operations at the Premises; or
(B) a Negative Declaration (as said term is defined in ISRA)
duly approved by DEP (or such other agency or body then having jurisdiction over
ISRA matters); or
(C) a Remedial Action Workplan (as said term is defined in
ISRA) duly approved by DEP (or such other agency or body which shall then have
jurisdiction over ISRA matters).
(iii) Nothing contained in this Section shall be construed as
limiting Tenant's obligation to otherwise comply with ISRA as aforesaid.
(iv) In the event Tenant complies with subparagraph (a) (ii)
of this Section 26.17 by obtaining an approved Remedial Action Workplan, Tenant
agrees that it shall, at its sole cost and expense:
(A) post any financial guarantee or other assurance
required to secure implementation and completion of such Remedial Action
Workplan; and
(B) promptly implement and diligently prosecute to
completion said Remedial Action Workplan in accordance with the schedule
contained therein or as may otherwise be ordered or directed by DEP or such
other agency or body which shall then have jurisdiction over such Remedial
Action Workplan. Tenant expressly understands, acknowledges and agrees that
Tenant's compliance with the provisions of this subparagraph (iv) may require
49
Tenant to expend or do acts after the expiration or termination of the Term and
Tenant shall not be excused therefrom. Any remediation conducted at the Premises
by Tenant under ISRA or otherwise shall be to the standard applicable to ISRA
related to the Premises and shall not involve alternative standards,
institutional or engineering controls.
(v) Within ten (10) days after a written request by the
Landlord or any Mortgagee, Tenant shall deliver to Landlord and the Mortgagee,
if any, a duly executed and acknowledged affidavit of Tenant's chief executive
officer, certifying:
(A) the proper four digit Standard Industrial
Classification Number relating to Tenant's then current use of the Premises
(Standard Industrial Classification Number to be obtained by reference to the
then current Standard Industrial Classification manual prepared and published by
the Executive Office of the President, Office of Management and Budget or the
successor to such publication); and
(B) (i) that Tenant's then current use of the
Premises does not involve the generation, manufacture, refining, transportation,
treatment, storage, handling or disposal of Hazardous Material on the site,
above ground or below ground, or (ii) that Tenant's then current use does
involve the presence of Hazardous Material, in which event, said affidavit shall
describe in complete detail Tenant's operations which involves the presence of
Hazardous Material. Such description shall, inter alia, identify each Hazardous
Material and describe the manner in which Tenant generated, handled,
manufactured, refined, transported, treated, stored, and/or disposed of same.
Tenant shall supply Landlord and the Mortgagee, if any, with such additional
information relating to the presence of Hazardous Material as Landlord or its
Mortgagee reasonably requests (nothing contained in this subsection (B) shall be
deemed or construed to permit Tenant to use Hazardous Material).
(vi) Without limiting the foregoing, Tenant agrees:
(i) at its sole cost and expense, to promptly
discharge and remove any lien or encumbrance against the Premises, or any other
property owned or controlled, in whole or in part, by Landlord imposed due to
Tenant's failure to comply with ISRA, and
(ii) to defend (with counsel approved by Landlord) ,
indemnify and hold Landlord harmless from and against any and all liability,
penalty, loss, expenses, damages,
50
costs, claims, causes of action, judgments and/or the like, of whatever nature,
including but not limited to attorney's fees and other costs of litigation or
preparation therefor, to the extent such costs arise from or in connection with
Tenant's failure or inability, for any reason whatsoever, to observe or comply
with ISRA and/or provisions of this subparagraph 26.17(a).
(vii) Tenant agrees that each and every provision of this
paragraph 26.17(a) shall survive the expiration or early termination of the
Term. The parties hereto expressly acknowledge and agree that the Landlord would
not enter into this Lease but for the provisions of this subparagraph 26.17(a)
and the aforesaid survival thereof.
(b) (i) Tenant agrees that it shall, at its sole cost and expense,
observe, comply and fulfill all of the terms and provisions of the Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq., as the same may be
amended from time to time (the "Act") and all rules, regulations, ordinances,
opinions, orders and directives issued or promulgated pursuant to or in
connection with said Act by DEP, any subdivision or bureau thereof or
governmental or quasi-governmental agency or body having jurisdiction thereof
(said Act and all said rules, regulations, ordinances, opinions, orders and
directives are hereinafter in this subparagraph 26.17 (b) collectively referred
to as "Spill Act") .
(ii) Without limiting the foregoing, the Tenant agrees:
(A) that it shall not do, omit to do or
suffer the commission or omission of any act which is prohibited by or may
result in any liability under the Spill Act including without limitation the
discharge of petroleum products or other hazardous substances (as said terms are
defined in the Spill Act); and
(B) whenever the Spill Act requires the
"owner or operator" to do any act, Tenant shall do such act and fulfill all such
obligations at its sole cost and expense, it being the intention of the parties
hereto that Landlord shall be free of all expenses and obligations arising from
or in connection with compliance with the Spill Act based on Tenants actions
and/or non compliance.
51
(iii) without limiting the foregoing, Tenant
agrees:
(A) at its sole cost and expense, to
promptly discharge and to remove any lien or any encumbrance against the
Premises, or any other property owned or controlled, in whole or in part, by
Landlord, imposed by Tenant' failure to comply with the Spill Act; and
(B) to defend (with counsel approved by
Landlord), indemnify and hold Landlord harmless from and against any and all
liability, penalty, loss, expenses, damages, costs, claims, causes of action,
judgments and/or the like, of whatever nature, including but not limited to
attorneys' fees and other expenses of litigation or preparation therefor, to the
extent such costs arise from or in connection with Tenant's failure or
inability, for any reason whatsoever, to observe or comply with the Spill Act
and/or the provisions of this subparagraph 26.17(b).
(iv) Tenant agrees that each and every provision of
this subparagraph 26.17(b) shall survive the expiration or earlier termination
of the Term. The parties hereto expressly agree and acknowledge that the
Landlord would not enter into this Lease but for the provisions of this
subparagraph 26.17(b) and the aforesaid survival thereof.
(c) (i) Tenant agrees that it shall, at its sole cost and
expense, promptly comply with all Environmental Laws applicable to its business
and properties, wheresoever located, or the Premises. Without limiting the
foregoing, Tenant agrees:
(A) that it shall not allow to occur any
action or omission which is prohibited by or may result in any liability under
any Environmental Law;
(B) whenever any Environmental Law requires
any action of either or both of the owner or operator of the Premises, Tenant
shall fulfill all such obligations at its sole cost and expense as relates to
Tenants use and/or operations of its business in the Premises, it being the
intention of the parties hereto that the Landlord shall be free of all expenses
or obligations arising from or in connection with compliance with any
Environmental
52
Law and Tenant shall bear all such expenses and obligations as if it is the sole
owner and operator of the Premises as relates to Tenants use and/or operations
of its business in the Premises.
(ii) Without limiting the foregoing, Tenant agrees:
(A) at its sole cost and expense to promptly
discharge and remove any lien or encumbrance against the Premises or any
property owned or controlled in whole or in part by the Landlord, imposed by
reason of Tenant's failure to comply with any Environmental Law or any provision
of this subparagraph 26.17(c).
(B) to defend (with counsel approved by
Landlord), indemnify and hold Landlord harmless from and against any and all
liabilities, penalties, losses, expenses, damages, costs, claims, causes of
actions, judgments and/or the like, of whatever nature, including but not
limited to attorneys' fees and other expenses of litigation or preparation
thereof arising including any action brought under this sub paragraph 2 6. 17
(c) , to the extent such costs arise from or in connection with Tenant's failure
to comply with any Environmental Law or any provision of this subparagraph
26.17(c).
(iii) Within ten (10) days after a written request by
the Landlord or any mortgagee of the Landlord, Tenant shall deliver to Landlord
and Landlord's mortgagee, if any, a fully executed acknowledged affidavit of
Tenant's chief executive officer, certifying that the Tenant is not, to the best
of Tenant's knowledge, in violation of any Environmental Law. Tenant shall
supply Landlord and the Mortgagee, if any, with all information relating to any
alleged or actual violation of any Environmental Law as the Landlord or
Mortgagee reasonably requests within ten (10) days of a written request for such
information.
(iv) Tenant agrees that each and every provision of
this subparagraph 26.17(c) shall survive the expiration or earlier termination
of the Term. The parties hereto expressly agree and acknowledge that the
Landlord would not enter into this Lease but for the provisions of this
subparagraph 26.17(c) and the survival thereof.
(a) Without limitation of any of the provisions of
this Section 26.17, and except as specifically provided in this Lease, Tenant
shall not store, generate, manufacture,
53
produce, treat, dispose of, release or discharge on, under or about the Premises
any Hazardous Material.
26.18 Arbitration. In the event that Landlord and Tenant are unable to agree on
any question arising under this lease, the dispute shall be submitted to the
American Arbitration Association of New Jersey, for arbitration and
determination in accordance with American Arbitration Association's commercial
rules, and such decision shall be final and conclusive on the parties.
ARTICLE TWENTY-SEVEN
PARKING
27.01 Without additional charges of any kind therefor, Tenant, its employees,
agents, and invitees shall be entitled to use of the unreserved parking area
adjoining the Building, subject to reasonable rules and regulations, during the
term of the Lease, in common with others.
ARTICLE TWENTY-EIGHT
TENANT'S RIGHT OF FIRST OFFER
Upon condition that Tenant is not in default in any of the payment of any
rent or other charge payable by Tenant under this Lease and not in default in
the performance of any covenant or obligation to be performed by Tenant under
this Lease and further subject to the conditions and limits hereinafter set
forth, Landlord agrees that Landlord will not enter into any new lease of any
unit of space in the second floor of that certain centerpod portion of the
Building (as shaded on Exhibit "A") of which the Premises are a part which may
become vacant during the initial term of this Lease with any tenant unless
Landlord shall first offer, in writing, said space to Tenant on such terms and
conditions as are then acceptable to the Landlord. Landlord agrees that Tenant
shall thereupon have the one-time right to lease said space in accordance with
the terms contained in Landlord's written notice. Said right must be exercised
by Tenant within twenty (20) business days after Tenant's receipt of written
notice of said offer by Tenant's giving written notice to Landlord of the
exercise of said right. If Tenant shall fail to exercise its right hereunder,
then Tenant shall execute in recordable form a release of its right to first
offer herein granted as applicable to the space so offered to Tenant. This right
of first offer (i) is not assignable and shall be deemed personal only to
Professional Detailing, Inc.; (ii) will not apply to any space to be leased by
Landlord to a tenant at that time leasing other space in the Building; (iii) is
limited to the exercise of rights for space only once, and once offered and
declined all rights to lease the particular offered space shall cease and
terminate, however the right to lease other space not yet offered shall continue
to exist.
The following additional items shall apply to said Right of First Offer:
(i) Tenant's right to add space to the Premises under this Article 28 shall be
exercised by the notice to Landlord containing Tenant's election for the entire
amount of offered space;
54
(ii) The added space shall become a part of the Premises and except for such
terms contained in the notice from Landlord the terms and conditions of this
Lease, including, but not limited to, the Lease Term and options shall be
applicable thereto.
(iii) Once the size of the added space has been determined this Lease and
Exhibit "A" shall be appropriately revised to reflect the revised payments and
Premises including the added space, signed and initialled by Landlord and Tenant
and added to or attached to this Lease as applicable.
(iv) Said right of first offer shall be subject to any other rights, similar or
dissimilar, granted by Landlord heretofore as set forth on Exhibit "G" attached
hereto and by this reference made a part hereof.
ARTICLE TWENTY-NINE
RENEWAL OPTION;
29.01 (a)By written notice delivered to Landlord on or before the date which is
twelve (12) months prior to the expiration of the term of this Lease (the
"Exercise Date"), time being of the essence, expressly provided that Tenant is
not in default in any respect under the terms of this Lease beyond any
applicable notice and grace period on (i) the Exercise Date and (ii) the last
day of the term of this Lease (the "Expiration Date"), Tenant shall have the
option to extend the term of this Lease for five (5) years commencing on the
first day following the Expiration Date and ending on the date which is five (5)
years thereafter (hereinafter called the "Renewal Term") upon the same terms and
conditions hereof except that the Monthly Base Rent to be paid by Tenant for the
Renewal Term shall be then annual fair market rental value for the Premises, as
determined as hereinafter set forth, and to be effective on the first day of the
Renewal Term. In this regard, no earlier than three hundred thirty (330) days
and no later than three hundred (300) days prior to the Expiration Date, which
thirty (30) day period is hereinafter referred to as the "Exchange Period",
Landlord shall submit to Tenant a statement of Landlord's determination of the
annual fair market rental value for the Premises for the Renewal Term, which
statement shall show the basis upon which such determination was made.
Landlord's determination of the annual fair market rental value shall give due
consideration to the rents (including any concessions, tenant finish allowances
or related matters) charged by Landlord for all leases of comparably sized space
(excluding exercise of renewal rights where the tenant had a right of renewal
under the terms of its lease) entered into by Landlord for the twelve (12) month
period preceding the first day of the Exchange Period, except that if there were
no such leases or such leases were so peculiar to a particular situation that no
true comparables would be derived, Landlord may expand the basis of its
determination to include the rents being charged by other owners of comparable
first class office buildings located in the Northern Bergen County, New Jersey.
Within thirty (30) days after receipt of Landlord's determination, Tenant may
either (i) rescind the exercise of its option, (ii) accept Landlord's
determination of the annual fair market rental value or (iii) provide Landlord
with its own determination of the annual fair market rental value, including the
basis upon which such determination was made.
55
If Tenant elects option (iii), then Landlord and Tenant shall, for a period of
thirty (30) days after Landlord's receipt of Tenant's determination, negotiate
in good faith to determine the annual fair market rental value and if Landlord
and Tenant are unsuccessful in reaching agreement within such thirty (30) days,
Tenant may cause the issue arbitrated as hereinafter in this Article 29 set
forth. If Tenant does not elect to have the issue arbitrated as hereinafter in
this Article 29 set forth, this option to renew shall automatically be null and
void and of no force or effect five (5) days following the thirty (30) day
period following Landlord's receipt of Tenant's determination of the annual fair
market rental value. Except for the Monthly Base Rent, the Renewal Term shall be
upon all of the terms, covenants and conditions contained in this Lease.
(b) In the event Tenant elect's to arbitrate the issue of annual fair market
rental value, such issue shall be determined by arbitration as hereinafter
provided. Landlord and Tenant shall each appoint a fit and impartial person as
an arbitrator who shall have at least ten (10) years' experience in the
commercial real estate industry in the Saddle River, New Jersey area (a
"Qualified Arbitrator"). Such appointment shall be indicated in writing by each
party to the other within ten (10) days following the thirty (30) day period
following Landlord's receipt of Tenant's determination of the annual fair market
rental value, as aforesaid. If the arbitrators are unable to determine the
annual fair market rental value as set forth below within twenty (20) days of
their appointment, the arbitrators so appointed shall immediately appoint a
third Qualified Arbitrator. In case either party shall fail to appoint a
Qualified Arbitrator within a period of ten (10) business days after written
notice form the other party to make such appointment, the American Arbitration
Association, or its successor (the "AAA") shall appoint such Qualified
Arbitrator(s). The two (2) arbitrators so appointed shall appoint the third
(3rd) arbitrator, as aforesaid, otherwise the AAA shall similarly make such
appointment. The arbitrators shall proceed with all reasonable dispatch to
determine the annual fair market rental value and under all circumstances shall
be bound by the terms of this Lease and shall not add to, subtract from, or
otherwise modify such provisions, provided, however, the arbitrators shall take
into account all relevant factors in determining the annual fair market rental
value. The concurrence of any two said arbitrators shall be binding upon
Landlord and Tenant, or, in the vent no two of the arbitrators shall render a
concurrent determination, then the determination of the third (3rd) arbitrator
shall be binding upon Landlord and Tenant. The determination of such third (3rd)
arbitrator shall be no higher than Landlord's arbitrator's determination, and no
lower than Tenant's arbitrator's determination. The decision of the arbitrators
shall, in any event, be rendered within thirty (30) days after the appointment
of the first and second arbitrators and such decision shall be in writing and in
duplicate with one counterpart delivered to each Landlord and Tenant. The
arbitration shall be conducted in accordance with the rules of the AAA and
applicable New Jersey law, and a decision of a majority of the arbitrators shall
be binding, final conclusive upon Landlord and Tenant. The fees of the
arbitrators and the expenses incident to the proceedings shall be shared equally
between Landlord and Tenant.
(c) Once the option period rent is determined as set forth, Tenant shall
commence paying the same as of the first day of the option period.
56
IN WITNESS WHEREOF, this Lease has been executed as of the date set forth in
Section 1.01(4) hereof.
LANDLORD:
IB BRELL, L.P., a Delaware limited partnership
By: KB Investors V, a California general
partnership, its General Partner
By: KE Holdings, L.P., a Washington limited
partnership, its General Partner
By: Koll Investment Management, Inc.,
a California corporation, its
General Partner
By: /s/
-----------------------------
Its:
-----------------------------
TENANT:
PROFESSIONAL DETAILING, INC.
By: /s/
------------------------
57
FIRST AMENDMENT TO OFFICE LEASE
MOUNTAINVIEW EXECUTIVE PLAZA
UPPER SADDLE RIVER, NEW JERSEY
DATE: DECEMBER , 1997
IB BRELL, L.P., a Delaware Limited Partnership with offices
at Mack Centre II, One Mack Centre Drive, Paramus, New Jersey
07652-3906.
as LANDLORD,
and
PROFESSIONAL DETAILING, INC. with offices at 599 McArthur
Boulevard, Mahwah, New Jersey 07430
as TENANT,
do hereby enter into this First Amendment to Office Lease as of
this day of December, 1997.
WITNESSETH:
WHEREAS, the Landlord and the TENANT have previously entered into an
Office Lease dated December 9, 1997 (the "Lease") for premises consisting of
twenty-two thousand (22,000) square feet (the "Premises") located within that
certain building at 10 Mountainview Road, Upper Saddle River, New Jersey (the
"Building"); and
WHEREAS, TENANT now wishes to lease an additional five thousand (5,000)
square feet ("Additional Premises"), thereby leasing a total of twenty seven
(27,000) thousand square feet in
1
the Building (from and after the date hereof the entire 27,000 square feet shall
be referred to as the "Premises");
IT IS, THEREFORE agreed that the Lease is modified as follows:
1. Rent. Section 1.01(8) is hereby deleted and the
following is hereby inserted in lieu thereof.
Months
During Term Monthly Rent Annual Rent Square Foot Rent Total
- ----------- ------------ ----------- ---------------- -----
1-2 0.00 0.00 0.00 0.00
3-14 $50,062.50 $600,750.00 $22.25 $600,750.00
15 0.00 0.00 0.00 0.00
16-27 $50,062.50 $600,750.00 $22.25 $600,750.00
28 0.00 0.00 0.00 0.00
29-40 $50,062.50 $600,750.00 $22.25 $600,750.00
41 0.00 0.00 0.00 0.00
42-53 $50,062.50 $600,750.00 $22.25 $600,750.00
54 0.00 0.00 0.00 0.00
54-66 $50,062.50 $600,750.00 $22.25 $600,750.00
TOTAL: $3,003,750.00
2. Miscellaneous. Section 1.01 items (10),(11), (12) and (13)
are hereby deleted and the following is hereby inserted in lieu
thereof:
(10) RENTABLE AREA OF THE PREMISES: approximately 27,000 square feet
2
(11) SECURITY DEPOSIT: Three Hundred Fifty Thousand Four Hundred Thirty
Seven Dollars and 50/100 ($350,437.50)
(12) LOCATION OF PREMISES: Second Floor - South Wing
(13) TENANT'S SHARE: 14.0625%
3. Security Deposit. (a) The number "$122,375.01" appearing in second line and
the number "163,166.68" appearing in the third line of Article Five on Page 12
of the Lease are hereby deleted and the number "$150,187.50" is hereby inserted
in the second line and the number "$200,250.00" is hereby inserted in the third
line in lieu of such numbers.
(b) The number "$122,370.01" appearing in the third line of the last
paragraph of Article Five on page 13 is hereby deleted and the number
"150,187.50" is hereby inserted in lieu thereof.
(c) The number "$163,166.68" appearing in the penultimate line of the
last paragraph of Article Five on page 13 is hereby deleted and the number
"$200,250.00" is hereby inserted in lieu thereof.
4. RECAPTURE. The number "6,600" appearing in the fourth line of Section 10.02
on page 24 is hereby deleted and the number "8,100" is hereby inserted in lieu
thereof.
5. Exhibit A. Exhibit "A" attached to the Lease is hereby deleted and Exhibit
"A" attached hereto is hereby inserted in lieu thereof.
3
6. Exhibit B. The number $34,980.00" in the eighth line of Section 3(b) on page
4 of Exhibit B is hereby deleted and the number "$42,930.00" is hereby inserted
in lieu thereof.
7. Other Terms and Conditions of Lease. Except to the extent expressly modified
herein, all of the other terms and conditions of the Lease shall remain in full
force and effect.
IN WITNESS WHEREOF, this First Amendment To Office Lease has been executed as of
the date first set forth above.
LANDLORD: /s/
IB BRELL, L.P., a Delaware limited
partnership
By: KB Investors V, a California
general partnership, its General
Partner
By: KE Holdings, L.P., a Washington
limited partnership, its General
Partner
By: Koll Investment Management, Inc.,
a California corporation, its
General Partner
By: /s/ JAMES H. PATTERSON
------------------------------------
JAMES H. PATTERSON
Its: SENIOR VICE PRESIDENT
------------------------------------
TENANT:
PROFESSIONAL DETAILING, INC.
By: /s/ CHARLES T. SALDARINI
--------------------------------------
CHARLES T. SALDARINI, President/C.O.O.
4