Exhibit 10.1
STANDARD FORM OF OFFICE LEASE
1. SUMMARY OF BASIC LEASE PROVISIONS, DEFINITIONS, AND TABLE OF
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CONTENTS
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BASIC DEFINITIONS
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1.1 The following are the basic definitions and provisions of
this Lease and are subject to all the terms and provisions of this Lease or
any amendments or exhibits hereto:
(a) DATE OF LEASE: April 15, 1996
(b) LANDLORD: Belle Mead Corporation,
LANDLORD'S a New Jersey corporation
ADDRESS c/o Bellemead Management Co., Inc.
280 Corporate Center
4 Becker Farm Road
Third Floor
Roseland, New Jersey 07068-3788
(c) TENANT: North American Watch Corporation,
TENANT'S a New York corporation
ADDRESS 125 Chubb Avenue
Lyndhurst, New Jersey 07071
Attention: General Counsel and
Vice President of Administration
(d) BUILDING: 1200 Wall Street West
Lyndhurst, New Jersey
(e) DEMISED PREMISES: a portion of the sixth (6th) floor in the
Building, as shown on Exhibit A and A-1 attached
and made a part hereof
(f) RENTABLE SIZE OF BUILDING: deemed as 186,421 sq. ft.
(g) RENTABLE SIZE OF DEMISED PREMISES: deemed as 8,108 sq. ft.
(h) TENANT'S OCCUPANCY PERCENTAGE: deemed as 4.35%
(i) FIRST TAX YEAR: Year ending December 31, 1996
(j) FIRST OPERATING YEAR: Year ending December 31, 1996
(k) TERM OF LEASE: three (3) years
(l) INTENTIONALLY DELETED PRIOR TO EXECUTION
(m) MINIMUM RENT: For the period beginning on the Commencement Date and
ending on the last day of the Term of Lease, the annual Minimum Rent
shall be $135,794.00 and the monthly Minimum Rent shall be $11,316.17.
(n) PREPAYMENT OF RENT: $11,316.17
(o) SECURITY: None
(p) PERMITTED USE: first class executive and general administrative
offices
(q) ALLOTTED PARKING: twenty two (22) spaces
(r) BROKER(S): None
(s) CONSTRUCTION CREDIT: $20,120.00
(t) RENEWAL OPTIONS: one (1) term of three (3) years
1.2 Additional Definitions. For the purposes of this Lease,
the following terms shall have the meanings set forth below:
ACCELERATED RENT shall have the meaning given to it in Section
35.1(c).
ADJUSTED MINIMUM RENT shall mean the Minimum Rent as increased in
accordance with this Lease to reflect any increase in Taxes and Operating
Costs.
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AFFILIATED PROPERTY shall have the meaning given to it in Section
16.5.
AGENT shall mean any agent, consultant, contractor or subcontractor
hired by or reporting to Tenant or its employee, and any employee of any
such entity.
APPRAISER shall have the meaning given to it in Section 51.3(c).
ARTICLE shall refer to the major subdivisions of this Lease listed in
Section 1.3.
ASSIGNEE or ASSIGNEE shall have the meaning given to it in Section
16.9.
ASSIGNMENT or ASSIGNMENT shall have the meaning given to it in Section
16.9.
ASSIGNOR or ASSIGNOR shall have the meaning given to it in Section
16.9.
BANKRUPTCY CODE shall have the meaning given to it in Section 39.1.
BELLEMEAD shall mean Bellemead Development Corporation, a Delaware
Corporation.
BILLING DATE shall have the meaning given to it in Section 6.2(a).
CLEANING SERVICE RIDER shall mean EXHIBIT C and all amendments
thereto.
COMMENCEMENT DATE shall have the meaning given to it in Section 3.1.
COMMENCEMENT DATE NOTICE shall have the meaning given to it in Section
3.4. CONTROLLING INTEREST shall have the meaning given to it in Section
16.9(d).
CURE PERIOD shall have the meaning given to it in Section 34.2.
DEFAULT shall have the meaning given to it in Section 34.1.
ENVIRONMENTAL shall mean anything affecting the physical health,
safety or condition of human beings, wildlife, or natural resources.
ENVIRONMENTAL AUTHORITY shall have the meaning given to it in Section
15.2.
ESTIMATED MINIMUM RENT shall have the meaning given to it in Section
51.3(c).
EVENT OF DEFAULT shall have the meaning given to it in Section 34.2.
EXPIRATION DATE shall have the meaning given to it in Section 3.4.
GOVERNMENTAL AUTHORITY shall mean any governmental or quasi-
governmental legislative, executive, judicial, regulative or independent
body, department, office, agency, bureau or similar entity or any agent,
officer or representative thereof.
HVAC shall mean heating, ventilation or air conditioning.
IMPROVEMENTS shall mean the Building and other improvements on the
Land.
INITIAL TERM shall have the meaning given to it in Section 3.4.
INTEREST shall have the meaning given to it in Section 34.3.
LAND shall mean the land described in Exhibit B.
LAND LESSOR shall have the meaning given it in Section 29.3.
LANDLORD shall have the meaning given to it in Section 29.2.
LANDLORD'S DETERMINATION shall have the meaning given to it in Section
6.2(e).
LANDLORD'S DETERMINATION NOTICE shall have the meaning given to it in
Section 53.1(a).
LANDLORD'S RECAPTURE NOTICE shall have the meaning given to it in
Section 16.4.
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LANDLORD'S RECAPTURE RIGHT shall have the meaning given to it in
Section 16.4.
LAW shall mean any statute, ordinance, order, code, rule or regulation
of a Governmental Authority now or hereafter in effect as applicable under
the circumstances.
LEGAL HOLIDAY shall have the meaning given to it in Exhibit D.
LICENSE shall have the meaning given to it in Section 10.2.
MANAGING AGENT shall mean the managing agent named on the signature
page of this Lease, or such other person or entity as Landlord may
designate by written notice from Landlord to Tenant, subject to Article 45.
MARKET RENT shall have the meaning given to it in Section 51.4(b).
OPERATING COSTS shall have the meaning given to it in Section 6.2(b).
OPERATING STATEMENT shall have the meaning given to it in Section
6.2(a).
OPERATING YEAR shall mean any calendar year or portion thereof during
the Term of Lease after the First Operating Year.
PARKING AREA shall have the meaning given to it in Section 10.2.
PARTNER shall have the meaning given it in Section 42.1.
PARTNERSHIP TENANT shall have the meaning given to it in Section 42.1.
REAL ESTATE shall mean, collectively, the Land and the Building and
other improvements thereon.
REAL ESTATE TAX BASE shall mean the Taxes imposed upon the Real Estate
for the First Tax Year.
RENEWAL OPTION shall have the meaning given to it in Section 51.1.
RENEWAL TERM shall have the meaning given to it in Section 51.1.
RENT COMMENCEMENT DATE shall have the meaning given to it in Section
3.5.
RULES AND REGULATIONS shall mean the rules and regulations set forth
in EXHIBIT E, as same may be amended from time to time as provided herein.
SECTION shall refer to subdivisions of each Article.
SERVICE CHARGE shall have the meaning given to it in Section 34.3.
STATE shall mean the state of the United States in which the Land is
located.
SUBLEASE shall have the meanings given to it in Sections 16.2 and
16.3.
SUBLEASING shall have the meaning given to it in Section 16.3.
SUBLESSEE shall have the meaning given to it in Section 16.2.
SUBSTITUTE PREMISES shall have the meaning given to it in Section 4.1.
TAX STATEMENT shall have the meaning given to it in Section 6.1(c).
TAX YEAR shall mean any calendar year or portion thereof during the
Term of Lease after the First Tax Year.
TAXES shall have the meaning given to it in Section 6.1(b).
TENANT'S NOTICE OF DISAGREEMENT shall have the meaning given to it in
Section 53.1(a).
TENANT'S RENEWAL NOTICE shall have the meaning given to it in Section
51.2(a).
TENANT'S SHARE OF OPERATING COSTS shall have the meaning given to it
in Section 6.2(a).
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TENANT'S SHARE OF TAXES shall have the meaning given to it in Section
6.1(a).
TENANT'S TRANSFER NOTICE shall have the meaning given to it in Section
16.3.
TENANT'S WORK shall have the meaning given to it in Section 13.1(b).
VISITOR shall mean any visitor, guest, licensee or invitee of Tenant
or any Sublessee, including any Agent, while on the Real Estate.
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1.3 Table of Contents
1. SUMMARY OF BASIC LEASE PROVISIONS, TABLE OF CONTENTS, AND
DEFINITIONS: . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. LEASE OF DEMISED PREMISES . . . . . . . . . . . . . . . . . . . . 6
3. COMMENCEMENT OF TERM; EXPIRATION DATE . . . . . . . . . . . . . . 6
4. RELOCATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
5. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6. TAXES; OPERATING COSTS; REIMBURSEMENTS . . . . . . . . . . . . . . 7
7. TENANT'S PERSONAL TAXES . . . . . . . . . . . . . . . . . . . . . 10
8. INTENTIONALLY DELETED PRIOR TO EXECUTION . . . . . . . . . . . . . 10
9. USE AND OCCUPANCY . . . . . . . . . . . . . . . . . . . . . . . . 10
10. ACCESS; COMMON AREAS; PARKING . . . . . . . . . . . . . . . . . . 11
11. RESTRICTIVE COVENANT - FOOD SERVICE . . . . . . . . . . . . . . . 12
12. TENANT'S CARE AND REPAIR OF PREMISES . . . . . . . . . . . . . . . 12
13. TENANT'S WORK AND INSTALLATIONS . . . . . . . . . . . . . . . . . 13
14. COMPLIANCE WITH LAWS . . . . . . . . . . . . . . . . . . . . . . . 14
15. ENVIRONMENTAL COMPLIANCE . . . . . . . . . . . . . . . . . . . . . 15
16. ASSIGNMENT SUBLEASING . . . . . . . . . . . . . . . . . . . . . . 16
17. NOTIFICATION BY TENANT . . . . . . . . . . . . . . . . . . . . . . 21
18. RULES AND REGULATIONS . . . . . . . . . . . . . . . . . . . . . . 21
19. PEACEABLE ENJOYMENT . . . . . . . . . . . . . . . . . . . . . . . 22
20. SURRENDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
21. HOLDING OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
22. INDEMNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
23. INDUCEMENT PAYMENT . . . . . . . . . . . . . . . . . . . . . . . . 23
24. SERVICES TO BE PROVIDED BY LANDLORD . . . . . . . . . . . . . . . 23
25. ELECTRICITY . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
26. HEATING, VENTILATION AND AIR CONDITIONING . . . . . . . . . . . . 25
27. CLEANING SERVICES . . . . . . . . . . . . . . . . . . . . . . . . 25
28. LANDLORD'S ACCESS TO DEMISED PREMISES AND ALTERATIONS . . . . . . 26
29. LIMITATION OF LIABILITY . . . . . . . . . . . . . . . . . . . . . 27
30. PROPERTY LOSS; DAMAGE; TENANT'S INSURANCE . . . . . . . . . . . . 28
31. DAMAGES BY FIRE OR OTHER CASUALTY . . . . . . . . . . . . . . . . 29
32. WAIVER OF SUBROGATION . . . . . . . . . . . . . . . . . . . . . . 30
33. EMINENT DOMAIN . . . . . . . . . . . . . . . . . . . . . . . . . . 31
34. DEFAULTS; EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . 31
35. REMEDIES FOR EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . 33
36. LANDLORD'S PERFORMANCE; EXPENDITURES . . . . . . . . . . . . . . . 35
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37. ACCORD AND SATISFACTION . . . . . . . . . . . . . . . . . . . . . 35
38. EFFECT OF WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . 35
39. BANKRUPTCY; INSOLVENCY . . . . . . . . . . . . . . . . . . . . . . 36
40. STATUTORY WAIVER; WAIVER OF TRIAL BY JURY . . . . . . . . . . . . 37
41. SUBORDINATION OF LEASE; ESTOPPEL CERTIFICATES . . . . . . . . . . 37
42. PARTNERSHIP TENANT . . . . . . . . . . . . . . . . . . . . . . . . 38
43. INTENTIONALLY DELETED PRIOR TO EXECUTION . . . . . . . . . . . . . 39
44. CORPORATE AUTHORITY . . . . . . . . . . . . . . . . . . . . . . . 39
45. MANAGING AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . 39
46. BROKER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
47. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
48. INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . . 40
49. NO OFFER, AGREEMENT OR REPRESENTATIONS . . . . . . . . . . . . . . 41
50. APPLICABILITY TO HEIRS AND ASSIGNS . . . . . . . . . . . . . . . . 42
51. RENEWAL OPTION . . . . . . . . . . . . . . . . . . . . . . . . . 42
SIGNATURE PAGE
EXHIBITS
A and A-1. RENTAL PLAN OF DEMISED PREMISES
B. LEGAL DESCRIPTION OF LAND
C. CLEANING SERVICE RIDER
D. LEGAL HOLIDAYS
E. RULES AND REGULATIONS
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2. LEASE OF DEMISED PREMISES
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2.1 Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, upon the terms and conditions herein set forth, the Demised
Premises in the Building which is situated on the Land.
3. COMMENCEMENT OF TERM; EXPIRATION DATE
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3.1 The actual commencement of the Term of Lease
("COMMENCEMENT DATE") shall be the earlier of (1) April 15, 1996 or (2) the
date on which Tenant shall have taken possession or control of or moved
furniture or other personal property into all or any portion of the Demised
Premises.
3.2 Intentionally Deleted Prior To Execution.
3.3 Intentionally Deleted Prior To Execution.
3.4 On or about the Commencement Date, Landlord or Managing
Agent shall deliver to Tenant a notice (the "COMMENCEMENT DATE NOTICE")
fixing the Commencement Date and the expiration date ("EXPIRATION DATE") as
well as the payee and address for all rental payments. The Expiration Date
shall be the day falling three (3) years after the Commencement Date. The
Initial Term shall be the period beginning on the Commencement Date and
ending on the Expiration Date. Tenant shall acknowledge receipt of the
Commencement Date Notice by signing a copy of same and returning it to
Landlord within five (5) business days of the receipt thereof. Tenant's
failure to sign the Commencement Date Notice and return same to Landlord as
provided in this Section shall be deemed to be Tenant's acceptance of the
Commencement Date and Expiration Date as stated in the Commencement Date
Notice.
3.5 The date upon which Tenant is obligated to commence
payment of Minimum Rent hereunder ("RENT COMMENCEMENT DATE") shall be the
Commencement Date. Notwithstanding the foregoing, Tenant shall pay Landlord
upon the execution of this Lease the Prepayment of Rent, which shall be
applied to Minimum Rent due beginning the first full month that Tenant is
obligated to pay Minimum Rent. If the Commencement Date occurs on a day
other than the first (1st) day of a calendar month, then, the Minimum Rent
for such partial calendar month shall be prorated at a per diem rate of
one-thirtieth (1/30) of the first full monthly installment of Minimum Rent.
3.6 As a condition of Landlord's agreement hereunder, Tenant
agrees to take possession of and accept the Demised Premises in their "as
is" physical condition and state of repair as of the Commencement Date.
Landlord shall have no obligation to do any work or perform any services
with respect to the Demised Premises, except as otherwise provided herein.
3.7 If, prior to the Commencement Date, Tenant shall enter the
Demised Premises to make any installations of its equipment, fixtures or
furnishings, Landlord shall have no liability for any personal injury or
property damage suffered by Tenant, its employees or Agents, except to the
extent caused by Landlord's gross negligence or misconduct.
4. RELOCATION
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4.1 If the Demised Premises contain less than 7,500 square
feet of rentable area, Landlord shall have the right, at its sole option,
upon at least sixty (60) days' prior written notice to Tenant, to relocate
Tenant to, and to substitute for the Demised Premises, other space within
the Building containing at least as much rentable area as the Demised
Premises (the "SUBSTITUTE PREMISES").
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4.2 The Substitute Premises shall be improved by Landlord at
its expense, with decorations and improvements that are substantially
comparable in quantity and quality to those provided by Landlord in the
original Demised Premises. Landlord shall pay the actual expenses
reasonably incurred by Tenant in connection with such substitution, such as
costs of moving, door lettering and telephone relocation.
4.3 The Substitute Premises shall become the "Demised
Premises" for purposes of this Lease following Tenant's taking occupancy
thereof, and Tenant shall promptly execute and return to Landlord an
amendment to this Lease (in form and substance reasonably satisfactory to
Tenant) prepared by Landlord and reflecting the relocation of the Demised
Premises.
5. RENT
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5.1 Tenant covenants to pay to Landlord the Minimum Rent,
payable in equal monthly installments in advance, so that such payments are
received by Landlord no later than the first day of each month during the
term of this Lease, subject to Section 3.5 hereof.
5.2 Tenant covenants to pay Adjusted Minimum Rent in a timely
manner as provided in Article 6 hereof.
5.3 The Minimum Rent or Adjusted Minimum Rent payable
hereunder by Tenant shall be paid without notice or demand and without
set-off, counterclaim, abatement, reduction or defense, in currency or
immediately-available funds which at the time of payment is legal tender
for public and private debts in The United States of America, at the
address of Landlord set forth above or at such other place as Landlord or
its Managing Agent may from time to time designate.
6. TAXES; OPERATING COSTS; REIMBURSEMENTS
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6.1 (a) Subject to Section 6.4 hereof, if the Taxes for any
Tax Year during the term of this Lease shall be greater than during the
First Tax Year, then Tenant shall pay to Landlord, as additional rent, an
amount equal to Tenant's Occupancy Percentage times such excess ("TENANT'S
SHARE OF TAXES").
(b) "TAXES" shall mean all real estate taxes, charges and
assessments imposed upon the Demised Premises or the Real Estate or any
part thereof by any Governmental Authority. Notwithstanding the foregoing,
Taxes shall not include Landlord's federal or state income taxes, any
capital gains or transfer tax or mortgage or other similar tax arising out
of a transfer in ownership or refinancing of the Real Estate or any part
thereof. Furthermore, Taxes shall not include any interest or penalties
resulting from Landlord's failure to timely pay Taxes. Landlord shall have
the exclusive right, but not the obligation, to contest or appeal any Taxes
or assessments levied on the Real Estate or any portion thereof.
(c) Upon the issuance by any authority having
jurisdiction over the Real Estate of a bill or bills for any Tax Year or
portion thereof subsequent to the First Tax Year, Landlord shall submit to
Tenant a statement (the "TAX STATEMENT") which shall indicate Tenant's
Share of Taxes, which Tax Statement shall be accompanied by a copy of the
latest tax bill or bills for the Taxes for said Tax Year. Within twenty
(20) days after the issuance of the Tax Statement, Tenant shall pay as
additional rent Tenant's Share of Taxes as set forth therein.
(d) Notwithstanding anything to the contrary contained
herein, should the Demised Premises or any other portion of the Building be
separately assessed for tax purposes, then Landlord shall have the option
of declaring Tenant's Share of Taxes
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to be (1) the actual Taxes allocated to the Demised Premises, or (2) that
amount which is the result of multiplying (i) the Taxes for that portion or
portions of the Building containing the Demised Premises times (ii) a
ratio, which shall be the square footage of the Demised Premises divided by
the total square footage of the portion of the Building to which the Taxes
in question apply.
6.2 (a) Tenant hereby covenants that for each Operating Year
during the term of this Lease for which the Operating Costs shall exceed
the Operating Costs for the First Operating Year, Tenant shall pay to
Landlord, as additional rent, an amount equal to Tenant's Occupancy
Percentage times such excess ("TENANT'S SHARE OF OPERATING COSTS") within
thirty (30) days after presentation of Landlord's statement (the "OPERATING
STATEMENT") therefor. The Operating Statement shall indicate (1) the
initial additional amount, if any, required to be paid by Tenant as
additional rent as provided in this Section; (2) Tenant's new Adjusted
Minimum Rent; and (3) the manner in which such adjustment is computed.
Landlord shall present its Operating Statement within 90 days (the "BILLING
DATE") after the commencement of each such Operating Year. Tenant shall
thereafter, for the balance of that Operating Year and for that portion of
the next Operating Year until the next Billing Date, include monthly
payments of one-twelfth (1/12th) of such increase as an addition to
Adjusted Minimum Rent, such amounts to be paid as estimates of Tenant's
Operating Costs for such subsequent Operating Year, and which amounts shall
be credited for the account of Tenant against the annual payment due on the
next Billing Date.
(b) "OPERATING COSTS" shall include each and every
expense incurred in connection with the ownership, administration,
management, operation, repair, replacement, renewal, and maintenance of the
Real Estate, including but not limited to, wages, salaries and fees paid to
persons either employed by Landlord or engaged as contractors in the
operation of the Real Estate, and such other typical items of expense as
are indicated below. Operating Costs shall also include the yearly
amortization over the useful life as reasonable estimated by Landlord of
capital costs, if any, incurred by Landlord, plus reasonable interest
thereon for improvements, repairs or replacements to the Improvements
(1) required to comply with any changes in Law which become applicable to
the Real Estate after the Date of Lease and which are not the
responsibility of an individual tenant; or (2) for the purposes of reducing
Operating Costs. All such costs and the values allocated to services
rendered and supplies delivered shall be reflected on the Operating
Statement and shall be exhibited to the Tenant upon request pursuant to
Section 6.2(d).
(c) Some of the typical items of expense which comprise
or may comprise the Operating Costs which are to be included in the
Operating Statement are or may be, without limiting the generality of the
term Operating Costs: (1) general repairs, maintenance, and renewal (but
not in excess of its original condition) to the exterior and common areas
of the Improvements; (2) utility costs, including but not limited to, costs
of energy to power Landlord's standard HVAC units serving the Building
(both tenant and common areas), and costs of electricity to light the
common areas; (3) cleaning costs, including but not limited to, window
cleaning, general interior office cleaning, and cleaning of common areas;
(4) service and/or maintenance contracts, including but not limited to,
HVAC, rubbish removal, carting, janitorial, security watchmen,
exterminating and snow removal to the extent such services and/or
maintenance are contracted for by Landlord or Managing Agent; (5) costs of
landscaping and maintenance of the Building grounds; (6) costs of insurance
and any reasonable deductible thereunder; (7) salaries, benefits and work
uniforms of superintendents, engineers, mechanics, and custodians; (8)
towel service for common lavatories; (9) sales and use taxes; (10) cost of
regularly replacing fluorescent tubes and ballasts in tenant spaces, unless
due to the carelessness of such individual tenant;
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(11) costs, if any, of landscaping or snowplowing public roadways in or
adjacent to the development of which the Real Estate is a part, to the
extent (i) reasonably necessary to maintain the first class appearance of
the Real Estate and access thereto in inclement weather, and (ii)
reasonably allocable to the Real Estate; and (12) such other costs and
expenses generally incurred in the operation, maintenance and repair of
first-class real property of the nature and in the area of the Real Estate.
Notwithstanding the foregoing, there is specifically excluded from
Operating Costs, for the purpose of this Lease, the following: (i) the
salaries of personnel employed by Landlord in the management and operation
of the Real Estate above the grade of property manager; (ii) leasing
commissions, attorneys' fees, costs and disbursements and other expenses
incurred in connection with negotiations or disputes with tenants, other
occupants or prospective tenants or occupants of the Building; (iii) costs
or expenses for which Landlord receives reimbursement from insurance
carriers, condemners or other third parties, to the extent only of the
reimbursement received by Landlord; (iv) costs or fees in connection with
the defense of Landlord's title to or interest in the Real Estate, or any
portion or component thereof; (v) costs incurred in connection with
decorating, painting or redecorating tenants' demised premises; (vi)
expenses in connection with services or other benefits of a type which are
not available to Tenant but which are provided to another tenant or
occupant of the Building and for which Landlord is paid by such other
tenant or occupant; and (vii) mortgage loan financing costs and interest
thereon.
(d) The expenditures referred to in this Article shall be
determined in accordance with generally acceptable accounting practices. So
long as there is no Default under any provisions of this Lease, Tenant or
its representative shall have the right, at its own expense, upon
reasonable notice and during reasonable hours, to inspect the books of
Landlord for the purpose of verifying the information contained in any
Operating Statement or in any revised Operating Statement furnished to
Tenant pursuant to Section 6.3 hereof, provided (1) prior written request
for such inspection shall be made by Tenant; (2) such request is made
within sixty (60) days of receipt of the Operating Statement to be
verified; and (3) Tenant shall have paid the Operating Statement in full,
unless same has not yet come due. Any Operating Statement not verified
within said sixty (60) day period shall be deemed to be correct.
(e) Notwithstanding anything to the contrary contained in
this Article, if the average occupancy of the Building is less than one
hundred percent (100%) during the First Operating Year or any subsequent
Operating Year, then Landlord shall make a reasonable determination
("LANDLORD'S DETERMINATION") of what the Operating Costs for such year
would have been if during the entire year the average tenant occupancy of
the Building were one hundred percent (100%). Landlord's Determination
shall be binding and conclusive upon Tenant and shall for all purposes of
this Lease be deemed to be the Operating Costs for such Operating Year.
6.3 If, due to an error in the preparation of any Tax
Statement or Operating Statement, there shall be an additional amount
payable or a refund due with respect to Taxes and/or Operating Costs for
the period covered by such statement(s), such amount shall be calculated by
Landlord or Managing Agent and sent to Tenant in a revised Tax or Operating
Statement, and any amount payable by the Tenant to the Landlord shall be
paid within thirty (30) days, as additional rent or the amount due to the
Tenant shall either be credited against amounts due or to become due to
Landlord or promptly refunded to Tenant hereunder. However, it is agreed by
the parties that any credit shall not in any way operate to reduce the
Minimum Rent payable by Tenant. If such calculation takes place and/or any
payment in connection herewith becomes payable after the expiration or
earlier termination of this Lease, this section shall be deemed to have
survived such expiration or termination.
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6.4 Any increase in additional rent under this Article shall
be prorated for the final Tax Year or Operating Year if such Tax Year or
Operating Year covers a period of less than twelve (12) full months.
Tenant's obligation to pay additional rent occurring hereunder prior to the
Expiration Date shall survive the expiration or sooner termination of this
Lease.
6.5 If any tenant in the Building for any reason shall not be
provided all services generally provided by Landlord to other tenants of
the Building, then for purposes of determining Operating Costs, Landlord
shall reasonably estimate what Operating Costs would have been had such
service been provided to all tenants. If any appliances or electrical or
mechanical equipment are installed in the Demised Premises or elsewhere on
the Real Estate solely for the use of Tenant or the Demised Premises, such
appliances or electrical or mechanical equipment shall be maintained in
good operating condition by Tenant at its sole cost and expense.
6.6 Tenant shall pay to Landlord, within thirty (30) days of
rendition of an invoice therefor, any sales, use, excise or similar tax or
assessment imposed upon this Lease or upon all or any portion of the
Minimum Rent or Adjusted Minimum Rent payable hereunder.
6.7 Tenant shall reimburse Landlord for all reasonable
expenses billed to and incurred by Landlord in connection with the review
by any architect, engineer, planner, construction advisor or attorney
retained by Landlord of any alteration, assignment, sublease, financing,
waiver or similar proposed activity or document of or on behalf of Tenant
or any Sublessee within thirty (30) days of rendition of an invoice
therefor.
7. TENANT'S PERSONAL TAXES
-----------------------
7.1 Tenant agrees to pay all taxes, assessments and fees
imposed upon Tenant or on the personal property or operations of Tenant in
connection with its use and occupancy of the Demised Premises including,
but not limited to, personal property, income, withholding and unemployment
compensation taxes, and to hold Landlord harmless from collection of any
such taxes out of monies due and owing Landlord or property in which
Landlord may have an interest. This provision shall survive the expiration
or sooner termination of this Lease.
8. INTENTIONALLY DELETED PRIOR TO EXECUTION
----------------------------------------
9. USE AND OCCUPANCY
-----------------
9.1 Tenant covenants to use and occupy the Demised Premises
for the Permitted Use and for no other purpose whatsoever, and in
compliance with the other provisions of this Lease. Tenant represents that
there shall be no walk-in or transient business transactions in or about
the Demised Premises.
9.2 Tenant shall not do or permit any act or thing to be done
in or to the Demised Premises which is contrary to Law, or which will
invalidate, be in conflict with, or increase the rates of any public
liability, fire or other policies of insurance at any time carried by or
for the benefit of Landlord with respect to the Demised Premises or the
Building, or which shall or might subject Landlord to any liability or
responsibility to any person or for property or Environmental damage.
Tenant shall not keep anything in the Demised Premises which is contrary to
Law except as now or hereafter permitted by any Fire Department, Board of
Fire Underwriters, Fire Insurance Rating Organization or other similar
authority having jurisdiction over the Real Estate, nor shall Tenant use
the Demised Premises or any other portion of the Real Estate in a manner
which would otherwise present an unreasonable risk to the Building or the
occupants thereof.
10
10. ACCESS; COMMON AREAS; PARKING
-----------------------------
10.1 Subject to the other provisions of this Lease, including
Section 10.2, and the Rules and Regulations, Tenant shall have the right of
nonexclusive use, in common with others, of (a) automobile parking spaces
not designated for use by others, (b) driveways, (c) footways, (d) lobbies,
corridors and elevators for access to the Demised Premises; and (e) such
other facilities as may be constructed from time to time on the Real Estate
and designated by Landlord for Tenant's use or for use in common by all
tenants of the Building.
10.2 The number of parking spaces in the parking area or areas
serving the Building (the "PARKING AREA") is limited and must be allocated
reasonably among all tenants of the Building. Provided no Event of Default
has occurred Tenant shall have a nonexclusive, revocable license (the
"LICENSE") to park up to the number of cars indicated under Allotted
Parking in Section 1.1 by Tenant and any Sublessee, or the employees or
Visitors of either, in the Parking Area. Landlord shall not be responsible
to Tenant for enforcing the License or for violation of the License by
other tenants of the Building or by third parties.
10.3 The following actions shall be prohibited under this
Lease: the use of any more than the Allotted Parking by Tenant, any
Sublessee or their employees; the parking in spaces designated for the
exclusive use of any other tenant in the Building by Tenant, any Subleasee
or their employees, the parking other than in marked parking spaces by
Tenant, any Sublessee or their employees or the maintenance, repair or
cleaning of any vehicle in the Parking Area by Tenant, any Sublessee or
their employees. In any of such events, Landlord may suspend or revoke the
License should such practice continue after written notice from Landlord or
Managing Agent; and/or Landlord may exercise such other remedies as are
provided in this Lease after Tenant's receipt of any required written
notice and beyond the expiration of any applicable cure period.
10.4 If the number of parking spaces in the Parking Area is
reduced by circumstances beyond the reasonable control of Landlord, the
Allotted Parking shall be reduced proportionately following notice to
Tenant.
10.5 Nothing contained in this Lease shall be deemed to create
liability upon Landlord for any damage to motor vehicles in the Parking
Area or for any loss of property from within those motor vehicles, or for
any injury in the Parking Area to Tenant or any Sublessee or any of their
employees or Visitors except to the extent determined to be caused by the
gross negligence or willful misconduct of Landlord. Tenant shall acquaint
its and any Sublessee's employees with any parking rules and regulations
promulgated by Landlord or Managing Agent and Tenant assumes responsibility
for compliance by said employees with such parking provisions, and shall be
liable to Landlord for all unpaid parking charges, if any, incurred by said
employees.
10.6 Tenant authorizes Landlord and Managing Agent to tow away
from the Parking Area, at Tenant's sole cost and expense, vehicles used by
Tenant, any Sublessee or any employees of either and/or to attach violation
stickers or notices to any motor vehicles used by Tenant or any Sublessee
or their employees parked illegally or in violation of this Article or any
parking rules and regulations promulgated by Landlord or Managing Agent.
10.7 Tenant shall not conduct, nor permit any Sublessee or the
employees or Visitors of either to conduct, any soliciting or picketing in
or on any of the common areas of the Real Estate.
10.8 Tenant shall not permit its or any Sublessee's
11
employees or Visitors to smoke or carry lighted tobacco products in the
common areas of the Building, including but not limited to lobbies,
elevators, hallways, stairwells, and restrooms. Landlord shall post such
areas as nonsmoking areas in accordance with Law.
11. RESTRICTIVE COVENANT - FOOD SERVICE
-----------------------------------
11.1 Tenant hereby covenants and agrees that it shall not
permit the use of the Demised Premises or any portion thereof, for the
service of food to anyone other than Tenant's employees; nor shall Tenant
maintain any facilities in the Demised Premises for the sale or consumption
of food to and by anyone other than Tenant's employees, including vending
machines, without, in each case, obtaining the prior written consent of the
Landlord, which consent may be withheld in Landlord's sole discretion.
11.2 Landlord or the owner of the office park in which the
Building is located may, at the discretion of either, enter into agreements
with third parties for the operation of a restaurant, cafeteria,
coffee-cart or similar food service as an amenity for the Building and/or
other buildings in said office park. In order to enhance the viability of
any such food service, Tenant shall not prepare, contract for, serve or
otherwise make available a food service facility on the Real Estate in
competition with such third parties.
11.3 Tenant shall not suffer or permit the sale or consumption
of food or drink in the common areas of the Building or in the driveways or
Parking Area of the Real Estate by the employees of Tenant or any
Sublessee; provided, however, that Tenant's and any Sublessee's employees
may utilize any picnic tables or similar areas on the Real Estate which may
be designated by Landlord or Managing Agent for consumption of lunch.
12. TENANT'S CARE AND REPAIR OF DEMISED PREMISES
--------------------------------------------
12.1 Tenant shall, throughout the term of this Lease, take good
care of the Demised Premises and maintain, replace or repair the fixtures
and appurtenances therein, except to the extent such maintenance,
replacement or repair is otherwise expressly required elsewhere in this
Lease to be performed by Landlord. Tenant shall give Landlord or Managing
Agent prompt notice of any maintenance or repairs needed to the Demised
Premises or the fixtures therein, including but not limited to lighting
fixtures. Tenant shall also be responsible for all damage or injury to the
Demised Premises or any other part of the Real Estate and the systems and
equipment thereof, whether requiring structural or nonstructural repairs,
caused by or resulting from the carelessness, omission, neglect or improper
conduct of Tenant, any Sublessee or the employees or Visitors of either; or
which arises out of any work, labor, service or equipment done for or
supplied to Tenant or any Sublessee (other than work, labor, service or
equipment supplied by or on behalf of Landlord); or which arises out of the
installation, use or operation of the property or equipment of Tenant or
any Sublessee. Tenant shall also promptly repair all damage to the Building
and the Demised Premises caused by the moving of fixtures, furniture and
equipment of Tenant or any Sublessee.
12.2 Tenant shall promptly make, at Tenant's expense, all
repairs in and to the Demised Premises for which Tenant is responsible,
using only contractors for the trade or trades in question approved by
Landlord or Managing Agent, which approval shall not be unreasonably
withheld or delayed. Any other repairs in or to the Building or the
facilities and systems thereof for which Tenant is responsible shall be
performed by Landlord at Tenant's expense.
12.3 Tenant shall not clean nor require, permit, suffer or
allow any window in the Demised Premises to be cleaned from the
12
outside. Such cleaning shall be governed by the Cleaning Service Rider.
13. TENANT'S WORK AND INSTALLATIONS
-------------------------------
13.1 (a) Without Landlord's prior written consent, which
Landlord may withhold in its sole discretion, Tenant shall not make or
permit any structural changes in or to the Demised Premises or the Building
of any nature, nor, subject to Section 13.1(b) hereof, any changes to any
of the electrical, plumbing or HVAC systems in the Building,
(b) Subject to the prior written consent of Landlord,
which consent shall not be unreasonably withheld, and to the provisions of
this Article, Tenant or any permitted Sublessee at its expense, may make
alterations, decorations, installations, renovations or improvements in or
to the interior of the Demised Premises ("TENANT'S WORK") which are
non-structural and which do not adversely affect or place unusual loads
upon any utility services, or plumbing and electrical lines, or electrical
or HVAC systems, by using mechanics or other contractors previously
approved by Landlord (which approval shall not be unreasonably withheld or
delayed) and properly licensed to do such work in the community where the
Real Estate is located. Notwithstanding anything contained to the contrary
in this Section 13.1(b), Tenant may perform non-structural Tenant's Work
without Landlord's prior written consent, provided that (i) Tenant is not
then in breach of any term of the Lease, (ii) no single or series of
related non-structural Tenant's Work in any single calendar year exceed an
estimated cost of $10,000.00 and (iii) no such non-structural Tenant's Work
adversely affects or places unusual loads upon any utility services, or
plumbing and electrical lines, or electrical or HVAC systems. With respect
to non-structural Tenant's Work for which Landlord's prior written consent
is not required, Tenant shall submit to Landlord detailed plans and
specifications at least twenty (20) days prior to the commencement of work
so that Landlord may ascertain whether the conditions (i) - (iii) in the
immediately preceding sentence have been met. Upon completion of any
Tenant's Work, Tenant shall give Landlord a set of "as-built" plans
therefor. Tenant covenants that Tenant's Work, whether prior, on or
subsequent to the Commencement Date, shall be in harmony with any other
work in the Real Estate and shall not result in work stoppages or picketing
at the Real Estate; and Tenant, at its own expense, shall immediately take
whatever steps are necessary to avoid any such work stoppage or picketing.
13.2 Tenant shall not place a load upon any floor of the
Demised Premises exceeding eighty (80) pounds live load per usable square
foot of area which the floor was designed to carry or the amount prescribed
by Law. Subject to the foregoing, Landlord reserves the right to prescribe
the weight and position in the Demised Premises of all safes, file
cabinets, bookshelves, business machines (other than desk-top machines),
mechanical equipment and other heavy personal property. Such installations
shall be placed and maintained by Tenant, at Tenant's sole cost and
expense, in settings sufficient, in Landlord's judgement, to absorb and
prevent vibration, noise and annoyance to any occupant of the Building or
adjacent properties.
13.3 Tenant shall, before undertaking any Tenant's Work, at its
cost and expense, obtain all permits, approvals and certificates required
by any Governmental Authority and (upon completion) certificates of final
approval thereof, and shall promptly deliver originals or duplicates of all
such permits, approvals and certificates to Landlord or Managing Agent.
Tenant agrees to carry and will cause Tenant's Agents to carry during any
activities under this Article such workman's compensation, general
liability, personal and property damage insurance as Landlord may
reasonably require, naming Landlord as an additional insured as its
interest may appear. Tenant agrees (a) to pay or cause to be paid
13
promptly, when due, the entire cost of any work done by or for Tenant or
any Sublessee upon the Demised Premises so that the Demised Premises shall
be at all times free of claims or liens for labor or materials, or if any
such liens arise, to discharge same pursuant to Section 13.4 hereof; and
(b) to defend, indemnify and hold Landlord harmless from and against any
and all injury, loss, demands, claims or damages to any person or property
occasioned by or in connection with Tenant's Work, to the extent not paid
to Landlord by the carrier of any insurance, and except to the extent due
to the gross negligence or willful misconduct of Landlord.
13.4 Notwithstanding the foregoing, if any mechanic's or other
lien is filed against the Demised Premises or the Building for work claimed
to have been done for or materials or services furnished to Tenant or any
Sublessee, whether or not done pursuant to this Article, the same shall be
discharged by Tenant within ten (10) days after notice thereof from
Landlord or Managing Agent, at Tenant's expense, by posting a bond or
taking such other steps as may be required by Law. If Tenant fails to
discharge such lien within such ten-day period, Landlord may do so on
Tenant's behalf at Tenant's sole cost and expense.
13.5 All fixtures and all paneling, partitions, railings,
flooring, electrical conduits and cabling and like improvements installed
in the Demised Premises at any time, either by Tenant or any Sublessee or
by Landlord in Tenant's behalf, shall, upon installation, become the
property of Landlord and shall remain upon and be surrendered with the
Demised Premises, unless Landlord, by notice to Tenant no fewer than thirty
(30) days prior to the expiration or sooner termination of this Lease,
elects to relinquish Landlord's right thereto and to have same removed by
Tenant, in which event the same shall be removed from the Demised Premises
by Tenant prior to the expiration of the Lease, at Tenant's sole cost and
expense.
13.6 Nothing in this Article shall be construed to give
Landlord title to or to prevent Tenant's removal of Tenant's or any
Sublessee's moveable trade fixtures, equipment, office furniture, portable
office partitions, removable work stations and associated wiring servicing
such removable work stations, but upon removal of any such property from
the Demised Premises or upon removal of other improvements as may be
required by Landlord pursuant to the terms of this Lease, Tenant shall
immediately and at its expense, repair and restore the area of the Demised
Premises wherein the removed installation was located to the condition
existing prior to installation and shall repair any damage to the Demised
Premises or the Building due to such removal.
13.7 All monies due Landlord or Landlord's agent or contractor
by Tenant for work performed pursuant to Article 12 or this Article shall
be paid within thirty (30) days of Tenant's receipt of an invoice therefor.
All such monies which are not timely received by Landlord or Landlord's
contractor shall accrue interest from the due date at the rate of Interest,
or such higher rate as may normally be charged to Landlord by its
contractor.
13.8 Tenant shall promptly remove or correct any Tenant's Work
not performed in accordance with this Article and, in the case of removal,
restore the area of the Demised Premises wherein the removed Tenant's Work
was located to the area's preexisting condition.
13.9 Tenant, at its cost and expense, shall remove from the
Demised Premises and the Building all boxes and other packaging resulting
from Tenant's or any Sublessee's installations, alterations, renovations
and decorating.
14. COMPLIANCE WITH LAWS
--------------------
14.1 Tenant, at Tenant's sole cost and expense, shall
14
promptly comply with (a) all present and future Laws of all Governmental
Authorities and all changes therein applicable to Tenant or to the Demised
Premises; (b) any direction of any public officer pursuant to Law; and (c)
all Laws which shall impose any violation, order or duty upon Landlord or
Tenant with respect to the Demised Premises whether or not arising out of
Tenant's occupancy, use or manner of use thereof (including Tenant's
Permitted Use). Nothing herein shall require Tenant to make structural
repairs or alterations which are structural in nature unless Tenant's use
of the Demised Premises or method of operation therein shall be in
violation of any such Law or shall result in the Demised Premises or the
Building being in violation of such Law.
14.2 Tenant may, at its expense (and if necessary, in the name
of but without expense to Landlord) contest by appropriate proceedings,
prosecuted diligently and in good faith, the validity or applicability to
Tenant or the Demised Premises of any such Law, and Landlord, at Tenant's
expense, shall cooperate with Tenant in such proceedings; provided that (a)
Tenant shall defend, indemnify and hold Landlord harmless against all
liability, loss or damage which Landlord shall suffer by reason of such
non-compliance or contest, including, but not limited to, reasonable
attorney's fees and other expenses reasonably incurred by Landlord; (b)
such non-compliance or contest shall not constitute or result in any
violation of any superior lease or superior mortgage, or if such superior
lease and/or superior mortgage shall permit such non-compliance or contest
on condition of the taking of action or furnishing of security by Landlord,
such action shall be taken and such security shall be furnished at the sole
cost and expense of Tenant; (c) such non-compliance or contest shall not
subject Landlord to prosecution for a criminal offense; (d) such action
shall not cause the Demised Premises or any part thereof or of the Real
Estate to become subject to a lien or to be condemned or vacated; and (e)
Tenant shall keep Landlord advised as to the status of such proceedings.
14.3 Landlord represents and warrants that, as of the date
hereof, Landlord has not received from a governmental authority having
jurisdiction over the Building any written notice of violation alleging
that the Demised Premises fails to comply with Laws.
15. ENVIRONMENTAL COMPLIANCE
------------------------
15.1 Tenant shall, at Tenant's own cost and expense, comply
with the Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq.), the
-- ---
Comprehensive Environmental Response, Compensation & Liability Act (42
U.S.C. 9601 et seq.), the Spill Compensation and Control Act (N.J.S.A.
-- ---
58:10-23.11 et seq.), any and all amendments thereto and regulations and
-- ---
orders promulgated thereunder, and any other Environmental Law affecting
the Demised Premises or the Real Estate, to the extent related to or
arising out of the use or occupancy of the Demised Premises by Tenant or
any Sublessee.
15.2 Tenant shall, at Tenant's own cost and expense, make all
submissions to, provide all information to, and comply with all
requirements of, the Bureau of Industrial Site Evaluation of the New Jersey
Department of Environmental Protection, or the U.S. Environmental
Protection Agency, or any other Governmental Authority having Environmental
jurisdiction over the Real Estate or any portion thereof or the occupants
thereof (collectively, an "ENVIRONMENTAL AUTHORITY") which are related to
or arise out of the use and occupancy of the Demised Premises by Tenant or
any Sublessee.
15.3 Should any Environmental Authority determine that a
cleanup or similar plan be prepared or that a cleanup be undertaken because
of any spills or discharges of hazardous substances or wastes in or about
the Real Estate caused by Tenant, any Sublessee
15
or the employees of either, then Tenant shall, at Tenant's own expense,
promptly and diligently prepare and submit the required plans and financial
assurances, and carry out the approved plans to the Satisfaction of such
Environmental Authority. Tenant acknowledges that its obligations under
this Article may arise if there is any closing, termination or transfer of
operations of Tenant or any Sublessee which is classified as an industrial
establishment, or from a transfer of the Real Estate or any portion thereof
which falls under the purview of an Environmental Authority.
15.4 At no expense to Landlord, Tenant shall promptly provide
all information reasonably requested by Landlord or Managing Agent or by
any Environmental Authority for preparation of non-applicability affidavits
and similar documents for submission to such Environmental Authority, and
shall promptly sign such affidavits when requested by Landlord or Managing
Agent.
15.5 By no later than the end of Spring, 1996, the evaporative
condenser units for the Building shall be in operation. Landlord, or an
entity of Landlord's choice, shall perform the following services if and
when necessary, as reasonably determined by Landlord:
1. Drain the units at the close of each cooling season.
At the beginning of the cooling season, in accordance with the Wisconsin
Protocol Guidelines, the units will be: mechanically cleaned; disinfected
with an oxidizing biocide; treated with a low or non-foaming dispersant;
and, if needed, treated with scale inhibitors or anticorrosives which do
not interfere with the effectiveness of the oxidizing biocide.
2. Develop a reasonable treatment program that will
optimize thermal performance and ensure efficient operation and maximum
service life.
3. Include equipment for continuous monitoring of
microbiocide levels in the water and automatic addition of microbiocides to
maintain reasonably satisfactory levels in the units at all times.
4. Undertake standard microbiological monitoring to the
extent reasonably necessary to optimize thermal performance and ensure
efficient operation and maximum service life.
16. ASSIGNMENT; SUBLEASING
----------------------
16.1 Tenant, for itself, its legal representatives, creditors,
heirs, distributees, administrators, trustees, successors and assigns,
expressly covenants that it shall not assign, mortgage, pledge or otherwise
encumber this Lease; nor, except as specifically set forth below, underlet,
or suffer or permit the Demised Premises or any part thereof to be used by
anyone other than the Tenant named in Section 1.1.
16.2 For purposes of this Article, any occupancy arrangement
(including, without limitation, verbal agreements, management agreements,
concessions, licenses and space-sharing agreements or arrangements)
affecting all or any part of the Demised Premises during the term of this
Lease, other than a direct lease with Landlord or an assignment of this
Lease permitted hereunder, shall be referred to as a "SUBLEASE"; and any
user or occupant of all or part of the Demised Premises, other than the
Tenant or an assignee permitted under this Article shall be referred to as
a "SUBLESSEE."
16.3 If Tenant shall desire to assign this Lease, or to permit
a Sublessee to use or occupy all or any portion of the Demised Premises (to
"SUBLEASE" or a "SUBLEASING"), Tenant shall first submit in writing to
Landlord or Managing Agent a notice
16
("TENANT'S TRANSFER NOTICE") setting forth in reasonable detail:
(a) the identity and address of the proposed assignee or
Sublessee;
(b) the terms and conditions of the assignment or
Subleasing;
(c) the nature and character of the business of the
proposed assignee or Sublessee and its proposed use of the Demised
Premises;
(d) evidence that the proposed assignee or Sublessee is a
United States citizen or a partnership or corporation qualified to do
business in the State of New Jersey and organized and in good standing
under the laws of one of the States of the United States;
(e) banking, financial and other credit information
relating to the proposed assignee or Sublessee reasonably sufficient to
enable Landlord to determine the proposed assignee's or Sublessee's
financial responsibility; and
(f) in the case of a Subleasing of only a portion of the
Demised Premises, plans and specifications for Tenant's layout,
partitioning, and electrical installations for the portion of the Demised
Premises to be subleased.
16.4 (a) If the nature and character of the business of the
proposed assignee or Sublessee, and the proposed use and occupancy of the
Demised Premises, or any portion thereof, by the proposed assignee or
Sublessee, is in keeping and compatible with the Permitted Use and the
dignity and character of the Building, then, subject to compliance with the
requirements of this Article, Landlord agrees not to unreasonably withhold
its consent to any such proposed assignment or Subleasing; provided,
however, that Tenant shall, in Tenant's Transfer Notice, advise Landlord of
Tenant's intention to assign this Lease or to permit a Subleasing of all or
any part of the Demised Premises, from, on and after a stated date (which
date shall not be less than sixty (60) days after the sending of Tenant's
Transfer Notice), in which event Landlord shall have the right ("LANDLORD'S
RECAPTURE RIGHT"), to be exercised by giving written notice ("LANDLORD'S
RECAPTURE NOTICE") to Tenant within thirty (30) days, to recapture the
space described in Tenant's Transfer Notice. Landlord's Recapture Notice
shall, if given, cancel and terminate this Lease with respect to the space
therein described as of the date which shall be the later of (1) the date
set forth in Tenant's Transfer Notice as the commencement of the proposed
assignment or Sublease, or (2) the date that Landlord receives a temporary
or permanent certificate of occupancy permitting the assignee's or
Sublessee's occupancy of the relevant portion of the Demised Premises.
(b) If less than all of the Demised Premises are
recaptured by Landlord, Landlord shall construct and erect such
partitioning and modify Building systems as may be required to separate the
space retained by Tenant from the space recaptured. The cost of such
alterations shall be borne fully and exclusively by Tenant, shall
constitute additional rent hereunder and shall be payable to Landlord
within thirty (30) days following a statement to Tenant from Landlord or
Managing Agent for the amount thereof. The Minimum Rent and/or the Adjusted
Minimum Rent, Tenant's Occupancy Percentage, and Tenant's Allotted Parking
shall be adjusted pursuant to a written amendment to this Lease on the
basis of the number of square feet retained by Tenant in proportion to the
number of square feet demised under this Lease immediately prior to such
recapture; and this Lease, as so amended, shall continue thereafter in full
force and effect as to the portion of the Demised Premises retained by
Tenant.
17
16.5 In addition to the foregoing requirements, (a) no Sublease
shall violate any Law or result in the occupancy of the Demised Premises by
more than two sole proprietors, firms, partnerships or corporations,
including the Tenant hereunder; (b) no Sublease shall be for a term of less
than two years, unless the unexpired term of this Lease shall be less than
two years at the commencement of the Sublease; (c) no assignee or Sublessee
shall be an existing tenant of, or any party then negotiating for space in,
the Building, or any other land or building in the office park in which the
Building is located which is (1) owned by Landlord, Bellemead or any
affiliate of either or any partnership in which Landlord or Bellemead or an
affiliate of either is a partner, or (2) managed by Bellemead or an
affiliate of Bellemead (any such property referred to under subsection
16.5(c)(1) or (2) being hereinafter referred to as an "AFFILIATED
PROPERTY"); (d) no Sublease shall result in the occupancy of less than
1,000 square feet of space; (e) there shall be no Default under any of the
terms and conditions of this Lease at the time of Tenant's Transfer Notice
or at the effective date of such assignment or Subleasing; (f) no
Subleasing shall be for a rental rate less than that currently being
charged for comparable space in the Building or any Affiliated Property;
and (g) Tenant shall pay when due all brokerage or similar commissions
arising from any assignment or Sublease.
16.6 Anything to the contrary in this Article notwithstanding,
Landlord shall not consent to any assignment or Sublease unless Tenant
agrees at the time of the proposed assignment or Sublease and in Tenant's
Transfer Notice to pay over to Landlord fifty percent (50%) of (a) all
consideration (of whatever nature) that would be payable by the prospective
assignee or Sublessee to Tenant, whether in one or more payments or
transfers and whether pursuant to such assignment or Sublease or any other
agreement related thereto, which exceeds (b) the pro rata share of the
Adjusted Minimum Rent plus Tenant's Share of Taxes allocable to the Demised
Premises, or the relevant portion thereof, payable by Tenant hereunder.
16.7 Any Sublease must specifically provide that (a) it shall
be subject and subordinate to all of the terms and conditions of this
Lease; (b) the use of the Demised Premises thereunder shall be restricted
exclusively to the Permitted Use; (c) the term thereof shall not extend
beyond the Expiration Date; (d) no Sublessee or its heirs, distributees,
executors, administrators, legal representatives, trustees, successors or
assigns, without the prior consent of Landlord in each instance, which
consent Landlord may withhold in its absolute discretion, shall (1) assign,
whether by merger, consolidation or otherwise, mortgage or encumber its
interest in any Sublease, in whole or in part, (2) Sublease or permit the
Subleasing of, that part of the Demised Premises affected by such
Subleasing or any portion thereof, or (3) permit such part of the Demised
Premises affected by such Subleasing or any part thereof to be occupied or
used, by any person other than such Sublessee; and (e) in the event of
cancellation or termination of this Lease for any reason whatsoever or of
the surrender of this Lease, whether voluntary, involuntary or by operation
of Law, prior to the expiration date of such Sublease, including any
extensions and renewals granted thereunder, the Sublessee, at Landlord's
option and in its sole discretion, shall either vacate the Demised Premises
or shall make full and complete attornment to Landlord for the balance of
the term of the Sublease, which attornment shall be evidenced by an
agreement in form and substance satisfactory to Landlord which the
Sublessee shall execute and deliver within five (5) business days after
request by Landlord. The Sublessee shall waive the provisions of any Law
now or hereafter in effect which may give the Sublessee any right of
election to terminate the Sublease or to surrender possession of the
Demised Premises in the event any proceeding is brought by Landlord to
terminate or assume this Lease.
18
16.8 No assignee or Sublessee shall receive any credit
whatsoever from Landlord for security deposits, rent or any other monies
paid to Tenant unless same shall have been actually received and receipted
by Landlord.
16.9 Each of the following events shall be deemed to constitute
an "ASSIGNMENT" of this Lease and shall require the prior written consent
of Landlord in each instance as provided in this Article; any person or
entity making an assignment shall be referred to herein as an "ASSIGNOR",
and any person or entity to whom an assignment is made shall be referred to
herein as an "ASSIGNEE":
(a) Any assignment or other transfer of this Lease by operation
of Law;
(b) Any hypothecation, pledge or collateral assignment of this
Lease;
(c) Any assignment or other transfer of this Lease in connection
with bankruptcy or creditor's rights;
(d) Any transfer or acquisition, whether in a single transaction
or cumulatively, of (1) the majority of the issued and
outstanding stock or voting interests of a corporate Tenant,
except as may occur through public trades on any recognized
security exchange or over-the-counter market; (2) a majority of
the equitable or voting interests of a Partnership Tenant; or (3)
any general partnership interest of a Partnership Tenant (each of
the foregoing being referred to as a "CONTROLLING INTEREST");
(e) Any issuance (other than in a public offering) of an
interest or interests in Tenant (whether stock or partnership
interests or otherwise) to any person, entity or group of related
persons or affiliated entities, whether in a single transaction
or in a series of related or unrelated transactions, such that
following such issuance, such person, entity or group shall hold
a Controlling Interest in Tenant.
16.10 Tenant, its Sublessees, and their respective legal
representatives, heirs, distributees, executors, administrators, trustees,
creditors, successors and assigns acknowledge and agree that the
restriction that Landlord's consent under certain circumstances to a
proposed assignment of this Lease or to a Subleasing shall not be
unreasonably withheld shall not be intended or construed as an agreement or
covenant on the part of Landlord, but rather as a qualification on Tenant's
covenant not to assign this Lease or enter into or permit any Sublease; and
it is further agreed that Landlord shall not be liable in damages or
subject to liability of any kind or nature whatever by reason of Landlord's
failure or refusal to grant its consent to any proposed assignment of this
Lease or Subleasing of the Demised Premises, the sole and exclusive
recourse being a declaratory judgment on the question of Landlord's
reasonableness.
16.11 It is a condition to the effectiveness of any assignment
otherwise complying with this Article that (a) Tenant shall increase on
Landlord's demand the amount of Security deposited with Landlord by a sum
to be reasonably determined by Landlord and (b) the assignee shall execute,
acknowledge and deliver to Landlord an agreement in form and substance
satisfactory to Landlord whereby the assignee assumes all obligations of
Tenant under this Lease, and agrees that the provisions of this Article
shall continue to be binding upon it in respect of all future assignments
of this Lease. No assignment of this Lease shall release the assignor or
any guarantor or obligor hereof from its continuing obligations to Landlord
under this Lease or any renewals extensions or modifications thereof,
except as expressly herein
19
provided; and Tenant its guarantors and obligors and any subsequent
assignor shall continue to remain jointly and severally liable (as primary
obligor) for all of Tenant's obligations hereunder.
16.12 Tenant, at its expense, covenants to obtain all permits,
approvals and certificates of occupancy required by any Governmental
Authority for any work or in connection with any assignment of this Lease
or any Sublease and any alterations to the Demised Premises in connection
therewith, and Tenant shall deliver copies of the same to Landlord prior to
the commencement of work, if work is to be done, and prior to the occupancy
of any or all of the Demised Premises by the assignee or Sublessee. All
such alterations shall be in strict compliance with Article 13 hereof.
Tenant shall submit a duplicate original counterpart of the assignment or
Sublease to Landlord within five (5) business days of the date of
execution.
16.13 If Landlord withholds its consent to any proposed
assignment or Sublease as permitted in this Article, or if Landlord
exercises Landlord's Recapture Right under Section 16.4, Tenant shall
indemnify, defend and hold harmless Landlord against and from all loss,
liability, damage, cost and expense (including attorneys' fees and
disbursements) resulting from any claims that may be made against Landlord
by the proposed assignee or Sublessee or by any brokers or other persons
claiming a commission or similar compensation in connection with the
proposed assignment or Sublease.
16.14 If Landlord consents to any proposed assignment or
Sublease and Tenant fails to consummate the assignment or Sublease to which
Landlord consented within forty-five (45) days after the giving of such
consent, Tenant shall be required again to comply with all of the
provisions and conditions of this Article before assigning this Lease or
Subleasing all or part of the Demised Premises.
16.15 The joint and several liability of the named Tenant and
any immediate or remote successor in interest of the named Tenant for the
due performance and observance of all covenants and conditions to be
performed and observed by Tenant hereunder shall not be impaired by any
agreement of Landlord or Managing Agent extending the time for such
performance or observance or by Landlord or Managing Agent's waiving or
failing to enforce any provision of this Lease.
16.16 The listing of any name other than that of Tenant or any
permitted assignee or Sublessee on any door of the Demised Premises or on
any directory or in any elevator in the Building or otherwise shall be at
Landlord's sole discretion, and shall not operate to vest in the person so
named any right or interest in this Lease or in the Demised Premises or the
Building, or be deemed to constitute, or serve as a substitute for, any
prior consent required under this Article, and it is understood that any
such listing shall constitute a license extended by Landlord which shall be
revocable at Landlord's will by written notice to Tenant.
16.17 If this Lease is assigned, or if the Demised Premises or
any part thereof is subleased, Landlord may, after a Default, collect rent
directly from the assignee or Sublessee and apply the net amount collected
to the rent herein reserved; but no such assignment, Subleasing or
collection shall be deemed a waiver of this covenant or the acceptance of
the assignee or Sublessee as a tenant, or a release of Tenant from the
further performance by Tenant of any of the covenants on the part of Tenant
contained herein; and no such collection of rent by Landlord shall be
characterized as a termination, cancellation or modification of this Lease,
unless Landlord so notifies Tenant in writing.
16.18 Any provisions of this Article to the contrary
notwithstanding, but subject to the other terms, conditions and
20
provisions contained in said Article, including but not limited to Section
16.3:
(a) Any corporate Tenant shall have the right, without
the consent of Landlord and free of Landlord's Recapture Right, but after
Landlord's receipt of Tenant's Transfer Notice, to assign this Lease or
sublease all or any part of the Demised Premises to any corporation
controlling, controlled by or under common control with Tenant; provided
that no such assignee shall further assign this Lease or Sublease any or
all of the Demised Premises and no such Sublessee shall assign or encumber
its Sublease or further sublease all or any part of the Demised Premises;
and provided, further, that any event resulting in such assignee or
Sublessee ceasing to be a corporation controlling, controlled by or under
common control with Tenant shall be deemed to be an assignment or Sublease
requiring the prior consent of Landlord pursuant to the provisions of this
Article and Tenant shall thereupon comply with all provisions of this
Article applicable thereto. For purposes hereof, "CONTROL" means ownership
of at least eighty percent (80%) of the issued and outstanding voting stock
of such corporation.
(b) Any corporate Tenant shall also have the right,
without the consent of Landlord and free of Landlord's Recapture Right, but
after Landlord's receipt of Tenant's Transfer Notice, to assign this Lease
to any corporation succeeding to Tenant by merger or consolidation in
accordance with applicable statutory provisions for merger or consolidation
of corporations or by purchase of all or substantially all of Tenant's
assets; provided that subsequent to such merger, consolidation or purchase,
the shareholder's equity (capital stock, additional paid-in capital and
retained earnings) of the successor corporation or the purchasing
corporation, as the case may be, shall be at least equal to the
shareholder's equity of Tenant immediately prior to such merger,
consolidation or purchase and this fact shall be so certified by the chief
financial officer of the assignor and the assignee.
(c) It is Landlord's intent to permit assignment and
Subleasing pursuant to this Section exclusively as an accommodation to the
bona fide and legitimate business organizational needs of Tenant, and
notwithstanding the provisions hereof, no assignment of this Lease or
Subleasing of all or any part of the Demised Premises without Landlord's
consent hereunder shall be permitted where the sole or primary purpose of
such assignment or Subleasing is to permit occupancy of all or any part of
the Demised Premises by a third party in avoidance of Landlord's consent,
or in the case of a corporation's purchasing all or substantially all of
Tenant's assets, where this Lease constitutes all or a substantial portion
of such assets.
(d) Tenant shall promptly give Landlord prior written
notice of any assignment of this Lease or Subleasing as required under this
Section accompanied by all documentation required by Landlord to establish
compliance with the requirements of subsections (a) and (b) above, and
Tenant shall also promptly provide Landlord with a copy of any executed
instrument of merger, consolidation or assignment or the executed Sublease,
as the case may be.
17. NOTIFICATION BY TENANT
----------------------
17.1 Tenant shall inform Landlord or its Managing Agent
immediately in case of fire or accident within the Demised Premises or
elsewhere upon the Real Estate if involving Tenant, any Sublessee, or the
employees or Visitors of either, or if Tenant has actual knowledge of such
fire or accident.
18. RULES AND REGULATIONS
---------------------
18.1 Tenant, for itself and for any Sublessee and their
21
employees and Visitors, covenants to comply with the Rules and Regulations.
Landlord and Managing Agent shall have the right to make reasonable
additions and amendments to the Rules and Regulations from time to time,
and Tenant, on behalf of itself, any Sublessee and their employees and
Visitors, agrees to comply with such additions and amendments after
deliveries of copies thereof to Tenant or the posting of copies thereof in
a prominent place in the Building.
19. PEACEABLE ENJOYMENT
-------------------
19.1 Subject to the terms and provisions of this Lease and to
all mortgages and ground leases of record to which this Lease may be or may
become subordinate, Tenant, upon timely payment of all Minimum Rent,
Adjusted Minimum Rent, additional rent, and other monies due and payable by
Tenant hereunder and upon Tenant's observing, keeping and performing all of
the other terms and provisions of this Lease, shall. lawfully, peaceably
and quietly have, hold, occupy and enjoy the Demised Premises during the
term hereof.
20. SURRENDER
---------
20.1 Upon the last day of the term of this Lease, or the sooner
termination thereof, Tenant shall quit and surrender the Demised Premises
to Landlord in good order, condition and repair, except for ordinary wear
and tear; and the Demised Premises and the remainder of the Real Estate
shall be free of any and all hazardous substances, wastes or conditions
which were deposited or caused by Tenant, or any of its representatives,
officers, employees or Visitors.
20.2 Prior to or upon the expiration or sooner termination of
this Lease, Tenant, at its own cost and expense shall remove from the
Demised Premises all trade fixtures, partitions, equipment, personal
property, or other improvements required to be removed from the Demised
Premises pursuant to Article 13 without injury to the Demised Premises. All
such property that is not removed from the Demised Premises prior to the
expiration or sooner termination of this Lease shall be, at the election of
Landlord and with absolutely no liability whatsoever to Tenant or any
Sublessee, either (a) retained or disposed of by Landlord as its own
property without any obligation whatsoever to Tenant or any Sublessee or
(b) removed from the Demised Premises and disposed of by any means
whatsoever by Landlord, at Tenant's sole cost and expense.
20.3 Tenant's obligation to observe the covenants contained in
this Article shall survive the expiration or sooner termination of this
Lease.
20.4 Notwithstanding anything to the contrary contained herein,
if the last day of the term of this Lease or any renewal or extension
thereof falls on Sunday, this Lease shall expire at noon the preceding
Saturday; if the last day of the term of this Lease or any renewal or
extension thereof falls on a Legal Holiday, this Lease shall expire at noon
on the preceding business day.
21. HOLDING OVER
------------
21.1 Tenant shall pay Landlord one hundred fifty percent (150%)
of the fair market rental value of the Demised Premises, as reasonably
determined by Landlord (but in no event less than one hundred fifty percent
(150%) of the Adjusted Minimum Rent then applicable under the Lease) for
each month or partial month during which Tenant or any Sublessee retains
possession of the Demised Premises, or any part thereof, after the
expiration or earlier termination of this Lease.
21.2 Nothing contained in this Lease, nor the paying by
22
Tenant and acceptance by Landlord or Managing Agent of holdover rent, nor
any verbal consent by anyone nor any detrimental reliance by Tenant or any
Sublessee, shall be construed as a consent by Landlord to the occupancy or
possession by Tenant or such Sublessee of the Demised Premises or any
portion thereof beyond tha Expiration Date or sooner termination of the
term hereof, unless consented to in writing by Landlord in its sole
discretion. Landlord, upon the Expiration Date or sooner termination of the
term hereof, shall also be entitled to consequential damages and to the
benefit of all other available legal remedies for summary possession of the
Demised Premises.
22. INDEMNITY
---------
22.1 Tenant shall be liable for the acts and omissions of
Tenant, its Sublessee(s) and any Visitors with respect to the Real Estate.
In accordance therewith but except as to matters for which Landlord is
required to indemnify Tenant under Section 22.3 hereof, Tenant shall
defend, indemnify and hold harmless Landlord, its directors, officers,
partners, employees, shareholders and agents and their predecessors in
interest and successors and assigns against and from (a) any and all claims
(1) arising from the conduct of Tenant or any Sublessee, or the employees
or Visitors of either, or of any business or any work or thing whatsoever
done to the Demised Premises by Tenant or its Visitors, or any condition
created in or about the Demised Premises by Tenant or its Visitors during
the term of this Lease or (2) arising from any negligent or otherwise
wrongful act or omission of Tenant or any Sublessee, or the employees or
Visitors of either; (b) any failure by Tenant or any Sublessee to comply
with the provisions of this Lease; (c) all costs, expenses and liabilities
incurred by Landlord in connection with each such claim or action or
proceeding brought thereon, including but not limited to all reasonable
legal fees and expenses; and (d) any damages suffered by Landlord due to
the holding over in the Demised Premises by Tenant or any Sublessee beyond
the expiration or sooner termination of this Lease.
22.2 In case any action or proceeding shall be brought against
Landlord or any of the foregoing indemnities by reason of any such claim,
Tenant, upon notice from Landlord, shall resist and defend such action or
proceeding with counsel previously and reasonably approved by Landlord.
22.3 Except to the extent caused by Tenant, its agents,
contractors or employees, Tenant's Sublessees or Visitors, Landlord shall
defend, indemnify and hold harmless Tenant, its directors, officers,
partners, employees, shareholders and agents and their predecessors in
interest and successors and assigns against and from any and all claims,
loss, cost, liability, damage, fine, penalty and expense (including
reasonable attorney's fees and disbursements) in connection with or arising
out of Landlord's negligent acts or omissions in the Real Estate, provided
however that in no event shall Landlord be liable for consequential
damages.
23. INDUCEMENT PAYMENT
------------------
23.1 Landlord shall reimburse Tenant for its reasonable and
documented expenses incurred by Tenant in performing Tenant Work, provided
that (1) Landlord receives from Tenant, within one hundred fifty (150) days
after the Commencement Date, invoices marked "PAID" or other reasonable
proof of payment evidencing the expenses Tenant incurred in performing
Tenant's Work, (2) the extent of Landlord's reimbursement does not exceed
the amount of the Construction Credit, (3) on the date Landlord reimburses
Tenant, Tenant is not then in breach of the Lease and (4) Landlord receives
from Tenant within one hundred fifty (150) days after the Commencement Date
a written notice specifically referencing this Section.
24. SERVICES TO BE PROVIDED BY LANDLORD
-----------------------------------
24.1 Subject to the other provisions hereof, Landlord
23
shall maintain in good working order and repair the exterior and the
structural portions of the Building, including the structural portions of
the Demised Premises, the common portions of the Building interior and the
Building plumbing, electrical, HVAC systems, including those Building
systems serving the Demised Premises. Such services shall be included in
Operating Costs. Tenant agrees to give prompt notice to Landlord or
Managing Agent of any condition in the Demised Premises in need of repair.
24.2 So long as no Event of Default has occurred, Landlord
shall provide the following services to Tenant, the cost of which services
shall be included in Operating Costs:
(a) Public elevator service on business days from 8 a.m.
to 6 p.m. and one elevator subject to call at all other times.
(b) Subject to Article 26, HVAC to the Demised Premises
and the Building.
(c) Water for ordinary lavatory purposes; provided,
however, if Tenant uses or consumes water for any other purposes or, in
Landlord's reasonable opinion, in quantities per square foot of Demised
Premises which are in excess of the Building average, Landlord may install
a water meter at Tenant's cost and expense to register such water
consumption; Tenant shall thereafter maintain the water meter in good
working order and repair and shall be obligated to pay Landlord as
additional rent for water consumed as shown on said meter.
(d) Subject to the Cleaning Service Rider and Article 27,
cleaning service for the Demised Premises and for the common areas of the
Building.
(e) The listing of Tenant's name on the Building lobby
directory, if any; provided that any changes to Tenant's listing on said
directory or any other directory in the Building or on the remainder of the
Real Estate shall be (1) in conformity with Landlord's Building standard
design, (2) prepared by Landlord and at Tenant's expense, if subsequent to
the Commencement Date; and (3) for the Tenant named in Article 1 or such
Sublessee or assignee permitted in strict compliance with Article 16.
Landlord shall have no obligation to list more than two names on the
Building lobby directory.
24.3 Landlord reserves the right to stop any of the services to
be provided hereunder when reasonably necessary by reason of accident or
emergency, or for repairs, alterations, replacements or improvements which
Landlord, in its reasonable discretion, may deem necessary or desirable,
without same affecting Tenant's obligations hereunder.
25. ELECTRICITY
-----------
25.1 Landlord's obligation to supply electric current shall be
limited to the current required to power the Building standard HVAC
systems, elevators, and the lighting of common areas of the Building and
the Real Estate, the costs of which shall be included in Operating Costs.
25.2 Tenant shall arrange with the appropriate utility to
purchase and pay for all of the electric current requirements for light and
power used in connection with Tenant's use and occupancy of the Demised
Premises, including all electrical power for Tenant's office equipment and
for any special electrical or mechanical equipment serving only the Demised
Premises. Landlord shall furnish and install an electric meter for the
measurement of the consumption of Tenant's electric current as herein
provided.
25.3 Tenant shall in a timely manner execute any and all
24
forms or applications for electric service, and shall provide any security
required by the local utility company supplying electric current to the
Building for the metering of all electric current and power required for
the operation of the electrical equipment of any nature whatsoever and
lights within or serving the Demised Premises.
25.4 As an alternative to the obligations of Landlord and
Tenant as set forth in Sections 25.1 and 25.2 above, Landlord may elect, at
its option, to meter and furnish the electric current to the entire floor
of which the Demised Premises forms a part or the Building, in which case
Tenant shall pay as additional rent Tenant's share of Landlord's cost
therefor. Tenant's share of costs under this Section shall be based upon a
percentage which the area of the Demised Premises bears to the total
rentable area of the floor or Building which is served by said meter.
25.5 Tenant shall not bypass or otherwise adversely affect the
proper operation of any electrical or other utility meter.
26. HEATING, VENTILATION AND AIR CONDITIONING
-----------------------------------------
26.1 Landlord shall provide and furnish Building HVAC to the
Demised Premises and the Building between the hours of 8:00 a.m. to 6:00
p.m., Monday through Friday, other than Legal Holidays. Any special HVAC
requirements of Tenant shall be at Tenant's sole cost and expense.
26.2 At all other times not otherwise provided for in Section
26.1 above, Landlord agrees that it shall provide after-hours HVAC, upon
written or telephone request from Tenant at least eight (8) business hours
in advance of such extra hours of operation, stating the hours of operation
desired, for which Tenant shall pay to Landlord as additional rent
hereunder, a sum equal to one hundred dollars ($100.00) per hour per floor
or portion thereof, for providing HVAC, that charge being intended to cover
Landlord's cost for providing same. If during the term of this Lease, or
any renewal hereof, Landlord's cost for providing after-hours HVAC shall
increase by virtue of utility rate increases or fuel cost increases or wage
increases, the above-specified hourly charge shall be adjusted from time to
time to reflect said increases. In addition to the foregoing, should there
be any charges incurred by Landlord for attendant engineers or for similar
additional requirements as may be imposed from time to time by any
Governmental Authority, collective bargaining agreement or the like, Tenant
agrees to reimburse Landlord for its out-of-pocket expenses incurred in
connection therewith, related to the after-hours service requested by
Tenant.
26.3 If one or more tenants in the Building have requested in
writing of Landlord that Landlord furnish space outside of the Demised
Premises with after-hours HVAC and, by so complying with that request,
Landlord furnishes Tenant with after-hours HVAC for all or any part of the
extra hours that Tenant has requested Landlord furnish to Tenant HVAC
service, then, Tenant's obligation to pay Landlord for those extra hours of
HVAC service that overlap with extra hours of HVAC service furnished to
other tenant(s) shall be equitably prorated by Landlord, as Landlord may
reasonably determine and which determination Tenant agrees shall be
conclusive.
27. CLEANING SERVICES
-----------------
27.1 Landlord shall maintain the grounds, common areas and
Parking Areas, and, so long as no Event of Default has occurred and is
continuing hereunder, such other cleaning services within the Demised
Premises as are set forth on the Cleaning Service Rider.
27.2 Tenant acknowledges that Landlord shall not cause to
25
be cleaned any portions of the Demised Premises not used as office areas
(e.g., closets, storage rooms, mailrooms, computer areas, laboratories,
private lavatories and areas used for the storage, preparation, service or
consumption of food or beverages), unless Landlord receives from Tenant
written request for such special cleaning in which case Landlord shall
cause such special cleaning to be performed and Tenant shall pay Landlord
on demand for such special cleaning, at Landlord's prevailing rates, as
Additional Rent. Tenant shall pay directly to Landlord the cost of removal
from the Demised Premises of any of Tenant's refuse or rubbish, including
large cartons or other containers or refuse, in excess of that generated
from the day-to-day operation of an executive and administrative office of
Tenant's size; and Tenant, at Tenant's expense, shall cause all portions of
the Demised Premises not used as office areas (and not otherwise cleaned)
to be cleaned daily in a manner and by a person or entity reasonably
satisfactory to Landlord. Tenant, at Tenant's expense, also shall cause any
portions of the Demised Premises used for the storage, preparation, service
or consumption of food or beverages to be exterminated against infestation
by vermin, rodents, bugs and insects both on a regular basis and whenever
there shall be evidence of any infestation.
27.3 Tenant shall contract directly with Landlord or, at
Landlord's option, directly with Landlord's contractors, for the removal of
garbage, excess refuse and rubbish, for cleaning services in excess of
those furnished by Landlord, and for the extermination services required
hereunder.
28. LANDLORD'S ACCESS TO DEMISED PREMISES AND ALTERATIONS
-----------------------------------------------------
28.1 (a) Landlord or Landlord's employees or agents, shall
have the right to enter and/or pass through the Demised Premises or any
part thereof, at reasonable times during reasonable hours and on reasonable
prior notification, either oral or written, as Landlord may reasonably
determine (or in the event of an emergency, at any time and without any
prior notification whatsoever) (1) to examine the Demised Premises and to
show them to the holders of mortgages or prospective purchasers, mortgagees
or lessees of the Building; (2) for the purpose of making such repairs or
changes in or to the Demised Premises or its facilities, as may be provided
for by this Lease or as may be mutually agreed upon by the parties or as
Landlord may be required to make by Law or in order to repair, maintain or
improve the Demised Premises or any other portion of the Building or its
fixtures or facilities; and (3) during the last twelve (12) months of the
term of the Lease, for the purposes of showing the Demised Premises to
prospective tenants. Tenant shall permit Landlord to use, maintain, replace
and improve pipes, conduits and supports in and through the Demised
Premises and to erect new pipes and conduits and structural members therein
or therethrough, provided such new installations are concealed within
walls, floors, or ceilings. Landlord may, during the progress of any work
in or about the Demised Premises, take all necessary materials and
equipment therein or therethrough without the same constituting an
eviction.
(b) If Tenant is not present to open and permit an entry
into the Demised Premises, Landlord or Landlord's employees or agents may
enter the same whenever such entry may be necessary or permissible by
master key or forcibly and, provided reasonable care is exercised to
safeguard Tenant's property, such entry shall not render Landlord or its
employees or agents liable therefor, nor in any event shall the obligations
of Tenant hereunder be affected. If during the last month of the term
Tenant shall have removed all or substantially all of Tenant's or any
Sublessee's property therefrom and shall have ceased its use of the Demised
Premises, Landlord may immediately enter, alter, renovate or redecorate the
Demised Premises without limitation or abatement of rent and without
incurring liability to Tenant for any compensation, and
26
such act shall have no effect on this Lease or any of Tenant's obligations
hereunder.
28.2 Landlord, its agents and employees shall have the right at
any time, without the same constituting an eviction and without incurring
liability to Tenant therefor (a) to change the arrangement and/or location
of public entrances, passageways, doors, doorways, corridors, elevators,
stairs, toilets or any other public parts of the Building; (b) to make
repairs, alterations or improvements to any portion of the Building; (c) to
perform any work that may be necessary to comply with any Laws of any
Governmental Authority having jurisdiction over the Demised Premises or the
Building or to prevent waste or deterioration of the Demised Premises or
the Building; (d) to change the name, number or designation by which the
Building may be known; or (e) to change any lawns, sidewalks, driveways,
Parking Areas or streets adjacent to or around the Building.
28.3 Landlord shall use reasonable efforts to minimize its
disturbance of Tenant in undertaking the activities described in this
Article in or adjacent to or affecting the Demised Premises, and Landlord
shall not be liable to Tenant by reason of any inconvenience, annoyance or
injury to business arising from any of the aforementioned alterations,
additions, and improvements, except that Landlord shall be liable for
property damage, property loss or personal injury determined to be caused
by the negligence of Landlord.
29. LIMITATION OF LIABILITY
-----------------------
29.1 Notwithstanding anything to the contrary contained herein,
each and every term, covenant, condition and provision of this Lease, is
hereby made specifically subject to the provisions of this Article.
29.2 The term "LANDLORD" as used in this Lease means only the
current Landlord or Building Lessor, so that in the event of any conveyance
of such interest and the transfer to the transferee of any funds then being
held under this Lease by Landlord, such Landlord shall be and hereby is
entirely freed and relieved of any and all obligations of Landlord
hereunder thereafter accruing, and the transferee shall be and hereby is
deemed to have assumed all of the obligations of Landlord hereunder. The
foregoing provision shall be self-operative and shall be deemed to occur
automatically without further agreement between Landlord and Tenant.
29.3 It is further specifically understood and agreed that
notwithstanding anything to the contrary contained herein or otherwise
provided at Law or in equity, there shall be absolutely (a) no liability
whatsoever to Landlord or any lessor of the Land (a "LAND LESSOR") in
excess of either's interest in the Real Estate, (whether any of the
foregoing be an individual, proprietorship, corporation, joint venture,
tenancy in common, firm, partnership or other entity); (b) no personal
liability whatsoever on the part of the members of any firm,
proprietorship, partnership, joint venture or other unincorporated Landlord
or Land Lessor with respect to any of the terms, covenants and/or
conditions of this Lease; and (c) no personal liability on the part of any
director, officer, or employee of any Landlord or Land Lessor. In the event
of a breach or default by Landlord of any of its obligations under this
Lease or any claim or suit in respect of this Lease or the Demised Premises
or the Real Estate or any portion thereof, Tenant shall look solely to the
then Landlord for the satisfaction of each and every remedy of Tenant, and
no judgment shall be entered against any individual, director, officer,
employee, partner, proprietor or joint venturer of Landlord or Land Lessor
or any of their predecessors in interest or successors in interest, such
exculpation of personal and additional liability which is in excess of such
person's or partnership's interest in the Real Estate to be absolute and
without any exception whatsoever.
27
29.4 If at any time any windows of the Demised Premises are
temporarily closed, darkened, blocked or bricked up (or permanently closed,
darkened, blocked or bricked up, if required by Law or if reasonably
necessary in connection with any improvements to the Real Estate) for any
reason whatsoever including, but not limited to Landlord's own acts,
Landlord shall not be liable for any damage Tenant may sustain thereby; and
Tenant shall not be entitled to any compensation therefor nor abatement or
diminution of rent; nor shall the same release Tenant from its obligations
hereunder nor constitute an eviction or partial eviction.
29.5 Landlord shall not be liable for failure to furnish any
services or take any other action required to be provided by it hereunder
by reason of conditions beyond Landlord's reasonable control, nor for
consequential damages arising therefrom. There shall be no allowance to
Tenant for diminution of rental value and no liability on the part of
Landlord or its employees or agents by reason of inconvenience, annoyance
or injury to business arising from Landlord or others making repairs,
alterations, additions, improvements or installations in or to any portion
of the Building or the Demised Premises or in and to the fixtures,
appurtenances or equipment thereof. Tenant agrees that Tenant's sole remedy
at law in such instance will be by way of an action for damages for breach
of contract. The provisions of this Article shall not apply in the case of
fire or other casualty which are not the responsibility of Tenant and which
shall be governed by Article 31 hereof.
30. PROPERTY LOSS; DAMAGE; TENANT'S INSURANCE
-----------------------------------------
30.1 Tenant and any Sublessee, at their sole cost and expense,
shall procure, provide and maintain in force during the term of this Lease
"All Risk" insurance, to be written by a good and solvent insurance company
qualified to write insurance in the State of New Jersey, reasonably
satisfactory to Landlord or Managing Agent, and having a policyholders'
rating of no less than A/XII as determined by the AM Best Company, or any
successor thereto, which shall cover Tenant's (or Sublessee's) personal
property, equipment and improvements in the Demised Premises or elsewhere
on the Real Estate against loss or damage by theft, vandalism, fire and any
other hazards or casualties in an amount sufficient to provide for the
actual replacement cost thereof. Neither Landlord nor its employees or
agents shall be obligated to make any repair or reimburse Tenant for any
act or loss to be covered by the insurance required hereunder.
30.2 Landlord or its contractors or agents shall not be liable
for any loss of or damage to any property of Tenant or of others
whatsoever, whether by reason of theft, burglary or otherwise, nor for any
injury or damage to persons or property resulting from any cause of
whatsoever nature, except to the extent determined to be due to the
negligence or willful misconduct of Landlord. Landlord and its employees
and agents shall not be liable for any such damage caused by other tenants
or persons in, upon or about the Real Estate or caused by construction or
operations of any private, public or quasi-public work.
30.3 Should Tenant or any Sublessee be self-insured for all or
any portion of any loss or damage to its property, or should Tenant's or
any Sublessee's insurer be unwilling or unable to compensate Tenant or such
Sublessee in full for such damage, Tenant and all such Sublessees shall be
deemed to have released and waived all right of recovery for such damage
against Landlord by Tenant or anyone claiming through or under Tenant by
way of subrogation or otherwise.
30.4 Landlord shall endeavor to have its cleaning contractors
lock all exterior doors to the Demised Premises and activate simple alarm
systems, if any; however, Tenant covenants to
28
insure against all loss or damage arising out of Landlord's or its cleaning
contractor's failure to lock doors or activate alarms, and notwithstanding
anything to the contrary contained herein, neither Landlord nor its
cleaning contractors nor any of their employees or agents shall be held
liable for any loss or damages arising therefrom.
30.5 Tenant and any Sublessee at its sole cost and expense,
shall also procure, provide and maintain in force during the term of this
Lease comprehensive general liability insurance, which (a) shall be written
by good and solvent insurance companies qualified to write insurance in the
State of New Jersey, reasonably satisfactory to Landlord, and having a
policyholders' rating of no less than A/XII as determined by the AM Best
Company, or any successor thereto; (b) shall include coverage for personal
liability, contractual liability, Tenant's (or Sublessee's) legal
liability, bodily injury, death and property damage, all on an occurrence
basis with respect to the business carried on, in or from the Demised
Premises and Tenant's (or Sublessee's) use and occupancy of the Demised
Premises; (c) shall provide coverage for any one occurrence or claim of not
less than $2,000,000; and shall insure against such other perils and in
such amounts as Landlord or Managing Agent may from time to time reasonably
require upon not less than ninety (90) days' prior written notice.
30.6 Each of the insurance policies required in this Article
shall include Landlord, Managing Agent, and any Land Lessor as additional
insureds (as their respective interests shall appear) and shall protect
Landlord in respect of claims by Tenant as if Landlord were separately
insured, and contain an undertaking by the insurer that no material change
adverse to Landlord, any Land Lessor or Tenant (or Sublessee) will be made
and such policy will not lapse or be cancelled, except after not less than
thirty (30) days' prior written notice to Landlord of the intended change,
lapse or cancellation. Any such notice shall not relieve Tenant of any of
its obligations hereunder. On or before the Commencement Date and
thereafter, at least thirty (30) days prior to the expiration date of any
policy, Tenant agrees to deliver to Landlord a duplicate original of the
aforesaid policies or a certificate thereof reasonably satisfactory to
Landlord; and Tenant (and any Sublessee) shall further modify such policies
and certificates within ten (10) business days of being notified to reflect
any change in Landlord, Land Lessor, or Managing Agent.
31. DAMAGES BY FIRE OR OTHER CASUALTY
---------------------------------
31.1 If the Building or the Demised Premises or any part
thereof shall be damaged by fire or other casualty, Tenant shall
immediately inform Landlord or Managing Agent thereof, and this Lease shall
continue in full force and effect, except as hereinafter set forth.
31.2 Tenant waives the benefit of N.J.S.A. 46:8-6, and N.J.S.A.
46:8-7 and any similar Law. Except as specifically provided in this
Article, Tenant agrees that it shall not be relieved of the obligations to
pay Minimum Rent, Adjusted Minimum Rent or any additional rent in case of
damage to or destruction of the Building or any portion thereof.
31.3 If all or a material portion of the Demised Premises are
damaged or rendered unusable by fire or other casualty but the Building is
not substantially damaged, and the damages to the Demised Premises can, in
Landlord's reasonable judgment, be reasonably repaired within one hundred
eighty (180) days of the occurrence of such damage, the damages, to the
extent affecting the tenant installation provided by Landlord, shall be
repaired by and at the expense of Landlord and the rent, until such repair
shall be substantially completed, shall abate in proportion to the area of
the Demised Premises which was damaged or unusable by Tenant for so long as
the Demised Premises, or each such portion thereof, is
29
damaged or unusable, it being the intent that such abatement shall not
affect or reduce Landlord's rent insurance coverage. Notwithstanding
anything to the contrary herein, Landlord shall not be obligated to repair
or restore any personal property of Tenant or any fixtures or Tenant
installation not installed by and paid for by Landlord.
31.4 If Landlord repairs and restores the Demised Premises in
accordance with Section 31.3, such repairs and restorations shall be made
with all reasonable expedition. After any such fire or other casualty,
Tenant shall cooperate with Landlord's restoration by removing from the
Demised Premises as promptly as reasonably possible and to the extent
reasonably necessary, all of Tenant's and any Sublessee's salvageable
inventory and movable equipment, furniture, and other property. Tenant's
liability for rent shall resume five (5) business days after written notice
from Landlord of Substantial Completion of repairs to the Demised Premises.
31.5 If all or substantially all of the Demised Premises are
damaged or rendered unusable by fire or other casualty, or (whether or not
the Demised Premises are damaged in whole or in part) if the Building shall
be substantially damaged so that Landlord in its reasonable opinion, cannot
rebuild both the Demised Premises and the Building to their pre-existing
condition within one hundred eighty (180) days, then, in either of such
events, either Landlord or Tenant may elect to terminate this Lease by
written notice to the other, specifying a date for the expiration of the
Lease, which date shall not be more than one hundred eighty (180) days
after such fire or other casualty, and upon the date specified in such
notice the term of this Lease shall expire as fully and completely as if
such date were the Expiration Date and Tenant shall forthwith quit,
surrender and vacate the Demised Premises without prejudice however, to
Landlord's rights and remedies against Tenant under the Lease provisions in
effect prior to such termination; and any rent owing shall be paid up to
the date of such notice and any payments of rent made by Tenant which were
on account of any period subsequent to such date shall be credited against
amounts owed by Tenant to Landlord or refunded to Tenant.
31.6 Notwithstanding anything to the contrary contained in this
Article or any Law, should the Demised Premises or the Building be damaged
by fire of other casualty as a result of the negligence of Tenant or any
Sublessee or any employee, Agent or Visitor of either, Tenant shall have no
right to terminate this Lease and there shall be no abatement of rent under
this Article, and Tenant shall be liable to Landlord for such damage,
subject to the other provisions hereof.
32. WAIVER OF SUBROGATION
---------------------
32.1 Notwithstanding any other provision herein, Landlord and
Tenant shall look first to any insurance in its favor before making any
claim against the other party for recovery for loss or damage resulting
from fire or other casualty, and to the extent that such insurance is in
force and collectible and to the extent permitted by Law, Landlord and
Tenant each hereby releases and waives all right of recovery against the
other or any one claiming through or under each of them by way of
subrogation or otherwise. The foregoing release and waiver shall be in
force only if both Landlord and Tenant obtain their insurance required
hereunder and only if both of their insurance policies contain a clause
providing that such a release or waiver shall not invalidate the insurance.
If, and to the extent, that such waiver can be obtained only by the payment
of additional premiums, then the party benefitting from the waiver shall
pay such premium within ten (10) business days after written demand from
the other party or shall be deemed to have agreed that the party obtaining
insurance coverage shall be free of any further obligation under the
provisions hereof with respect to
30
waiver of subrogation.
33. EMINENT DOMAIN
--------------
33.1 If all or substantially all of the Demised Premises or the
Building or a substantial portion of the Land should be acquired or
condemned by eminent domain by any Governmental Authority, then Landlord or
Tenant may terminate this Lease as of the date when title vests pursuant to
such taking. In such event, the rent shall be apportioned as of said
expiration date and any rent paid for any period beyond said date and in
excess of amounts owing by Tenant to Landlord shall be repaid to Tenant.
33.2 In the event of a taking of less than all or substantially
all of the Demised Premises, Landlord shall have the right to equitably
reduce the Demised Premises, Tenant's Occupancy Percentage, the Minimum
Rent and the Allotted Parking, and this Lease shall continue in full force
and effect. Notwithstanding the foregoing, Tenant shall have the right to
terminate this Lease if the area of the Demised Premises shall not be
reasonably sufficient for Tenant to continue feasible operation of its
business.
33.3 Landlord or Tenant may exercise its respective right(s) to
terminate this Lease under Section 33.1 or 33.2 by giving written notice to
the other within thirty (30) days after the date of the vesting of title in
such proceeding, specifying a date not more than fifteen (15) days after
the giving of such notice as the date for such termination.
33.4 Neither Tenant nor any Sublessee shall have any claim in
any condemnation or eminent domain proceeding for the value of any
unexpired term of the Lease with respect to the Demised Premises or any
portion thereof, and Tenant hereby assigns to Landlord Tenant's entire
interest in any such award. Although Tenant shall not be entitled to any
part of the award for such taking or any payment in lieu thereof, Tenant
(or any Sublessee) may file a separate claim for any taking of fixtures and
improvements owned by Tenant (or such Sublessee) which have not become
Landlord's property, and for moving expenses, provided the same shall in no
way affect or diminish Landlord's award.
34. DEFAULTS; EVENTS OF DEFAULT
---------------------------
34.1 Tenant shall be in default under this Lease upon the
occurrence of any one or more of the following events (collectively,
"DEFAULTS", and individually, a "DEFAULT"):
(a) Intentionally Deleted Prior To Execution;
(b) If the Tenant vacates the Demised Premises for a
period in excess of thirty (30) days other than during the month prior to
the Expiration Date;
(c) If the Tenant is delinquent in the due and punctual
payment of all or any portion of Minimum Rent, Adjusted Minimum Rent,
additional rent or any other monies payable by Tenant hereunder;
(d) If any execution, attachment or other action shall be
taken against Tenant or any of Tenant's property whereupon the Demised
Premises shall be taken, occupied or used by someone other than Tenant or
any assignee or Sublessee permitted in strict accordance with Article 16,
including the storage of any of Tenant's property on behalf of another
person or entity; or
(e) If Tenant is delinquent in the performance of or
compliance with any of the other covenants, agreements or conditions
contained in this Lease, any other lease demising space in the Building to
Tenant, or any other written agreement between Landlord and Tenant
pertaining to the Demised Premises, the
31
Building, and/or the Real Estate.
34.2 Upon the occurrence of a Default, Landlord, at any time
thereafter, may give written notice to Tenant specifying the nature of such
Default. Tenant shall have fifteen (15) days from the receipt of said
notice (the "CURE PERIOD") to comply with or remedy any such Default,
except in the case of any Default presenting a clear and present danger to
life or property, which Tenant shall cure immediately upon request of
Landlord or Managing Agent, written or otherwise. If such Default is not of
an emergency nature, is other than due to the nonpayment of money, and
shall be of a nature that the same cannot be substantially cured or
remedied within said Cure Period, Tenant shall promptly give Landlord
written notice of such fact, and Tenant shall diligently and in good faith
proceed to remedy or cure such Default within a reasonable time, but in no
event in excess of ninety (90) days. Neither the cost to Tenant of curing
any Default nor Tenant's financial or other inability to cure any Default
(for whatever reason) shall operate to extend any Cure Period. Tenant's
failure to remedy such Default within the applicable time set forth in this
Section shall be an "EVENT OF DEFAULT".
34.3 Tenant acknowledges that Landlord is obligated to make
timely payments on obligations arising out of its ownership, operation, and
financing of the Real Estate. In the event that the payment of any sum
required to be paid by Tenant to Landlord under this Lease (including,
without limiting the generality of the foregoing, Minimum Rent, Adjusted
Minimum Rent, additional rent, payment made by Landlord under any provision
of this Lease for which Landlord is entitled to reimbursement by Tenant, or
for construction or other work performed by Landlord or its contractor
specifically for Tenant) is not received by Landlord in good funds within
fifteen (15) days after the date on which it is due and payable or should
any check from Tenant be returned to Landlord as uncollectible, then,
notwithstanding any notice provision or Cure Period, a delinquency service
charge equal to four percent (4%) of the amount overdue (the "SERVICE
CHARGE") shall become immediately due and payable to Landlord as liquidated
damages for Tenant's failure to make prompt payment to Landlord; Landlord
and Tenant hereby agreeing that the actual damages to Landlord due to such
late or non-payment exceed the interest cost of money but are difficult to
estimate. Such Service Charge shall become payable as additional rent
within five (5) business days after Tenant's receiving an invoice therefor.
Tenant shall also pay Landlord as additional rent interest ("INTEREST") at
an annual rate equal to 4% in excess of the prime rate announced from
time-to-time by Citibank, NA or such other major commercial bank in the
United States designated by Landlord (but subject to any maximum interest
permitted by Law) on any amounts not received by Landlord from the date on
which they became due and payable. In the event of nonpayment of any
Service Charge and/or Interest provided for above, Landlord shall have, in
addition to all other rights and remedies, all the rights and remedies
provided for herein and by Law in the case of nonpayment of rent. Failure
by Landlord or Managing Agent to insist upon the strict performance by
Tenant of Tenant's obligations to pay any Service Charge or Interest shall
not constitute a waiver by Landlord of its rights to enforce the provisions
of this Section in any instance thereafter occurring. Neither the
provisions of this Section nor Tenant's payment of any Service Charge or
Interest shall be construed in any way to extend any time period provided
for in this Lease or to limit Landlord's other remedies hereunder. Tenant's
obligation to pay any Service Charge or Interest as provided in this
Section shall continue beyond the expiration or sooner termination of this
Lease.
34.4 In addition to the provisions of Section 34.3, should
Adjusted Minimum Rent be received by Landlord or Managing Agent later than
the first day of the month on which it is due twice or more in any
twelve-month period, Landlord may, in addition to all other rights and
remedies provided herein and by Law,
32
require that Tenant increase the amount of the Security by an additional
amount equal to three (3) months' of the then applicable Adjusted Minimum
Rent.
35. REMEDIES FOR EVENTS OF DEFAULT
------------------------------
35.1 Upon the occurrence of any Event of Default hereunder,
Landlord may, in addition to all other rights and remedies provided herein
or at Law or in equity, exercise any or all of the following remedies:
(a) Landlord may give a written notice of termination
upon Tenant setting forth a date, no fewer than five (5) business days from
the date of the giving of such notice, terminating this Lease and/or
Tenant's right to use and occupy the Demised Premises. Upon the expiration
of such period, this Lease and the term hereof, or the right of Tenant or
any Sublessee to use and occupy the Demised Premises, as the case may be,
shall terminate and expire as fully and completely as if the day on which
said notice of cancellation is to be effective were the Expiration Date,
and Tenant shall then peaceably quit and surrender the Demised Premises to
Landlord, but Tenant shall remain liable as herein provided. Landlord may
also, without further notice, re-enter the Demised Premises and repossess
same by summary proceedings or ejectment or otherwise and/or may dispossess
the Tenant and remove the Tenant and all other persons and property from
the Demised Premises and may have, hold, use and enjoy the Demised Premises
and the right to receive all rental income therefrom.
(b) Landlord may (1) declare all Adjusted Minimum Rent
and all other sums due and payable hereunder immediately due and payable;
(2) re-let or sublet the Demised Premises or any part or parts thereof, in
the name of Tenant, Landlord or otherwise, for a term or terms, which may
at Landlord's option be less than, equal to, or exceed the period which
would otherwise have constituted the balance of the term of this Lease, and
Landlord may grant concessions or free rent, change the First Tax Year
and/or the First Operating Year or charge such higher or lower rental as
may be reasonable under the circumstances; (3) recover from Tenant any
commission paid by Landlord to Broker on account of this Lease for the
current term; (4) collect rental payments directly from any Sublessee, upon
written notice to such Sublessee directing it to make such payment strictly
to Landlord; (5) cancel any option to renew, extend or cancel this Lease or
expand or contract the Demised Premises which Tenant may have; (6) cancel
any right of first refusal or first offer held by Tenant; and/or (7)
recover the Construction Credit.
(c) Landlord may require Tenant or the legal
representative(s) of Tenant immediately to pay to Landlord a sum (the
"ACCELERATED RENT") which, at the time of the Event of Default, equals the
aggregate Adjusted Minimum Rent payable hereunder which would have become
payable by Tenant hereunder through the day previously set as the
Expiration Date (conclusively presuming that Adjusted Minimum Rent on
account of increases in Taxes and Operating Costs subsequent to the Event
of Default and through the Expiration Date shall increase at the average of
the rates of increase thereof previously experienced by Landlord since the
Commencement Date) discounted to present value at the annual rate of four
percent (4%). Such Accelerated Rent shall be held by Landlord and applied
by Landlord on a monthly basis to any deficiency between the rent or any
other monies hereby reserved and/or covenanted to be paid by Tenant and the
net amount, if any, of the rents collected on account of any re-letting or
sub-letting of the Demised Premises for each month of the period which
would otherwise have constituted the balance of the term of this Lease. The
failure of Landlord to re-let or sublet the Demised Premises or any part or
parts thereof shall not release or affect Tenant's obligations or liability
hereunder. In computing any such
33
deficiencies, there shall be added thereto such expenses as Landlord may
reasonably incur in connection with re-letting or subletting or attempting
to relet or sublet the Demised Premises, including but not limited to,
legal expenses, attorney's fees, brokerage fees, advertising expenses and
expenses incurred in connection with the marketing, showing, fix-up,
cleaning, repair or maintenance of the Demised Premises including those for
preparation of the Demised Premises for re-letting or subletting and the
removal of Tenant's property, fixtures or other improvements therefrom. In
connection with Landlord's preparation of the Demised Premises for
re-letting or subletting, Landlord may, at its option, make such
alterations, repairs, replacements, and/or decorations in the Demised
Premises as Landlord, in Landlord's reasonable discretion, considers
advisable and necessary for the purpose of re-letting or subletting the
Demised Premises, and the making of such alterations, repairs,
replacements, and/or decorations shall not operate or be construed to
release Tenant from liability hereunder. Landlord shall in no event be
liable in any way whatsoever for failure to re-let or sublet the Demised
Premises, or in the event that the Demised Premises are re-let or sublet,
for failure to collect the rent under such re-letting or subletting, and in
no event shall Tenant be entitled to receive any excess, if any, of such
net rents collected over the sums payable by Tenant to Landlord hereunder.
Landlord, however, shall exercise reasonable efforts to mitigate damages.
Notwithstanding the foregoing, Landlord shall be under no obligation in
reletting the Demised Premises to give priority to the rental thereof over
other available space in the Building. If the Demised Premises or any part
thereof should be re-let or sublet in combination with the other space,
then proper apportionment on a square-foot basis shall be made of the rent
received from such re-letting and of the expenses of re-letting.
35.2 As a material part of this Lease, Tenant hereby appoints
Landlord as Tenant's attorney-in-fact, which appointment shall be a special
appointment coupled with an interest and shall be irrevocable, so long as
any Event of Default has occurred (a) to enter into Subleases with any
entity whatsoever, including Landlord itself, upon any terms and
conditions, including at whatever rent Landlord may determine in its sole
discretion, but which rent shall be credited against amounts owed by Tenant
to Landlord hereunder; or (b) to utilize or occupy the Demised Premises or
permit others to do so with or without payment of rent, without the same
constituting an eviction or partial eviction or affecting Tenant's
obligation to pay the Minimum Rent, Adjusted Minimum Rent, additional rent
or any other sums payable by Tenant to Landlord hereunder.
35.3 In the event of a breach or threatened breach by Tenant of
any of the covenants or provisions hereof, Landlord shall have the right of
injunction and the right to invoke any remedy allowed at Law or in equity
as if re-entry, summary proceedings and other remedies were not provided
for herein.
35.4 Any suit or suits for the recovery of monies due Landlord
hereunder may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone
suit until the date when the term of this Lease otherwise would have
expired. Mention in this Lease of any particular remedy shall not preclude
Landlord from any other remedy, at Law or in equity. Nothing herein
contained shall be construed to limit or preclude recovery by Landlord
against Tenant for any sums or damages to which, in addition to the sums
particularly provided above, Landlord may lawfully be entitled by reason of
any Default hereunder on the part of Tenant.
35.5 Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as actual damages,
punitive damages and/or liquidated damages for any Event of Default of
Tenant under this Lease, an amount equal to the
34
maximum allowed by any Law governing the proceedings in which such damages
are to be proved, or in equity, whether or not such amount be greater,
equal to, or less than any of the sums referred to in this Article.
35.6 Tenant, for Tenant, and on behalf of any and all persons
claiming through or under Tenant, including but not limited to Sublessees,
creditors, trustees, security holders and representatives of all kinds,
does hereby waive and surrender all right and privilege which they or any
of them might have under or by reason of any present or future Law, to
redeem the Demised Premises or to have a continuance of this Lease for the
term hereby demised after being dispossessed or ejected therefrom by
process of law or under the terms of this Lease or after the termination of
this Lease as herein provided.
36. LANDLORD'S PERFORMANCE; EXPENDITURES
------------------------------------
36.1 If an Event of Default shall occur under this Lease,
Landlord, without thereby waiving such Event of Default, may (but shall not
be obligated to) immediately or at any time thereafter, without further
notice, perform the same for the account and at the expense of Tenant.
36.2 Tenant shall also promptly reimburse Landlord for all
costs, expenses and disbursements of every kind and nature whatsoever,
including, but not limited to, reasonable attorney's fees, involved in (a)
instituting, prosecuting or defending any action or proceeding against
Tenant in which Tenant fails to prevail; (b) collecting or endeavoring to
collect the Minimum Rent, Adjusted Minimum Rent or additional rent or any
part thereof or any other money payable by Tenant hereunder; or (c)
enforcing or endeavoring to enforce any rights of Landlord against Tenant,
under or in connection with this Lease or pursuant to Law, including any
such cost, expense and disbursement involved in instituting and prosecuting
summary proceedings. Any bills for any property, material, labor or
services provided, furnished, or rendered by Landlord pursuant to this
Article shall be obligations of Tenant.
36.3 The foregoing expenses incurred by Landlord shall be
deemed to be additional rent hereunder and shall be paid by Tenant to
Landlord within ten (10) business days of rendition of any bill or
statement to Tenant therefor. The obligations of Tenant to pay such sums to
Landlord shall survive the expiration or sooner termination of this Lease,
and such sums shall be thereafter recoverable by Landlord or its agent or
representative.
37. ACCORD AND SATISFACTION
-----------------------
37.1 No payment by Tenant or receipt by Landlord or its
employee or agent of a lesser amount than the rent and additional charges
payable hereunder shall be deemed to be other than a payment on account to
be credited against monies owed-Landlord hereunder, in such order as
Landlord may reasonably determine, nor shall any restrictive endorsement,
statement or name on any check or any letter accompanying any check or
payment delivered to Landlord or its employee or agent be deemed, declared
or interpreted an accord and satisfaction; and Landlord or its agent may
accept and deposit such check or payment without notice to Tenant, without
same operating as a satisfaction or an acceptance of satisfaction by
Landlord or its employee or agent, and without prejudice to Landlord's
right to recover the balance of any monies due hereunder, or to pursue any
other remedy provided herein or by Law.
38. EFFECT OF WAIVERS
-----------------
38.1 No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease, or
to exercise any right or remedy permitted hereunder, and
35
no acceptance of full or partial rent during the continuance of any such
Default, shall constitute a waiver of any such Default or of such covenant,
agreement, term or condition. No consent or waiver, express or implied, by
Landlord or its employee or agent to or of any Default, and no reliance by
Tenant thereon, shall be construed as a consent or waiver to or of any
other Default of the same or any other covenant, condition or duty, unless
in writing signed by Landlord.
39. BANKRUPTCY; INSOLVENCY
----------------------
39.1 Notwithstanding anything herein to the contrary, this
Lease may be cancelled by Landlord by the sending of a written five (5) day
notice of cancellation to Tenant within a reasonable time after the
happening of any one or more of the following events: (1) the appointment
of a trustee, custodian, liquidator, receiver or other similar official to
take possession of all or substantially all of the assets of Tenant or of
the Demised Premises; (2) the making by Tenant of an assignment or any
other arrangement for the benefit of creditors pursuant to any Law; (3) the
filing by Tenant, or the public announcement of the intent to file, of a
voluntary petition pursuant to 11 U.S.C. 101 et seq. and the Rules and
Official Forms thereunder or any such successor or substitute legislation
or rule thereto, or any similar federal or state law collectively (the
"Bankruptcy Code") seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief thereunder; (4)
the adjudication of Tenant as a bankrupt or insolvent; (5) the failure of
Tenant or any guarantor of the Tenant's obligations hereunder to pay debts
generally as they become due. Landlord's statutory liens for rent shall be
honored by Tenant and any trustee, representative or creditor of Tenant.
39.2 If Landlord shall have no right to terminate this Lease by
reason of the applicable provisions of the Bankruptcy Code, Tenant or its
trustee or other representative shall promptly provide adequate protection
to Landlord pursuant to the provisions of the Bankruptcy Code.
(a) Tenant or its trustee shall promptly accept or reject
this Lease. Any Lease not assumed or rejected within sixty (60) days after
an order for relief is entered shall be deemed rejected, and the trustee
shall immediately surrender the Demised Premises to Landlord.
(b) If Tenant shall not be in liquidation, Tenant or its
trustee shall assume or reject the Lease as soon as such decision can
reasonably be made, and shall compensate Landlord for the use and occupancy
of the Demised Premises monthly in advance until such decision is made.
(c) This Lease may not be assumed, unless at the time of
such assumption, the trustee or assignee shall promptly (1) cure or provide
adequate assurance that it will promptly cure any Default(s) under this
Lease; (2) compensate or provide adequate assurance that it shall
compensate Landlord for any actual or pecuniary loss to Landlord resulting
from such Default(s); (3) provide adequate assurance reasonably
satisfactory to Landlord of future performance under this Lease; and (4)
compensate Landlord for all post-filing use and occupancy of the Demised
Premises, and shall timely perform all of Tenant's other obligations
hereunder.
39.3 If this Lease is assigned to any person or entity pursuant
to the provisions of the Bankruptcy Code, Tenant or its legal
representative shall give prompt written notice thereof to Landlord along
with adequate assurance of future performance by the assignee. Any and all
monies or other consideration to be delivered in connection with the
assignment shall be delivered to Landlord, and shall be and remain the
exclusive property of Landlord to be applied to post-filing use and
occupancy payments to Landlord or
36
other monies owed by Tenant to Landlord and shall not constitute property
of Tenant or of the estate of Tenant. Any person or entity to which this
Lease is assigned pursuant to the provisions of the Bankruptcy Code shall
be deemed to have assumed all of the obligations arising under this Lease
on and after the date of such assignment, and shall upon demand execute and
deliver to Landlord an instrument confirming that assumption.
40. STATUTORY WAIVER; WAIVER OF TRIAL BY JURY
------------------------------------------
40.1 Tenant acknowledges that its possession, use and peaceful
enjoyment of the Demised Premises is conditioned upon Tenant's timely
performing all of its obligations hereunder, including but not limited to
the payment of all Minimum Rent, as set forth in Section 5.3. In
consideration thereof, Tenant hereby waives its right under N.J.S.A.
2A:18-60 or other similar statutes to remove any action for non-payment of
Minimum Rent brought by Landlord or its Managing Agent pursuant to N.J.S.A.
2A:18-53 to another court. Any other matter mentioned in any such action
brought by Landlord under the latter statute shall not waive Landlord's or
Tenant's right to bring a separate action in the proper court for monies
due and owing either party hereunder; nor shall Landlord be prohibited from
instituting a dispossess action for nonpayment of monies other than Minimum
Rent.
40.2 To the extent such waiver is permitted by Law, the parties
hereto waive trial by jury in any action or proceeding brought in
connection with this Lease or the Real Estate or any portion thereof.
40.3 Tenant waives the benefit of N.J.S.A. 46:8-6 and 46:8-7,
as same may be amended.
41. SUBORDINATION OF LEASE; ESTOPPEL CERTIFICATES
----------------------------------------------
41.1 This Lease is subject and subordinate to all ground or
underlying leases and to all deeds of trust or mortgages which may now or
hereafter affect the Real Estate, including all renewals, modifications,
consolidations, replacements and extensions of any such underlying leases,
deeds of trust and mortgages. This clause shall be self-operative and no
further instrument of subordination shall be required by any Land Lessor or
by any mortgagee in order to effectuate such subordination. Notwithstanding
the foregoing, Tenant shall execute and promptly deliver to Landlord or its
agent within five (5) business days any instrument that Landlord or its
agent, as the case may be, may reasonably request confirming the
subordination of this Lease.
41.2 If any lender shall request reasonable modifications of
this Lease as a condition of Landlord's obtaining any financing or
refinancing of the Building, the Real Estate and/or any interest of
Landlord in either, Tenant covenants not to unreasonably withhold or delay
its agreement to such modification provided that such modification does not
materially or adversely affect the rights of Tenant under this Lease.
41.3 Tenant agrees to give any mortgagee, deed of trust holder,
or Land Lessor by certified mail, a copy of any notice and a right to cure
any default of Landlord, provided that, prior to such notice, Tenant has
been notified in writing (by way of notice of assignment of rents and
leases, or otherwise) of the address of such mortgagee, deed of trust
holder, or Land Lessor. Tenant further agrees that so long as any
mortgagee, deed of trust holder or Land Lessor has commenced and is
diligently pursuing the remedies necessary to cure such default (including
but not limited to commencement of foreclosure proceedings, if necessary to
effect such cure), Tenant shall not seek to terminate this Lease.
41.4 Tenant agrees at any time and from time to time, upon not
less than ten (10) days' prior written request from
37
Landlord or Managing Agent, that Tenant shall execute, acknowledge and
deliver to Landlord, or its designee, a statement in writing certifying (a)
that this Lease is unmodified and is in full force and effect (or if there
have been modifications, the specifics thereof and that the Lease is in
full force and effect as modified); (b) the dates to which the Minimum Rent
(or Adjusted Minimum Rent) and additional rent have been paid; the amount
of all rents paid in advance, if any; and any other information that
Landlord or Managing Agent shall reasonably request. Tenant further agrees
to furnish Landlord or Managing Agent upon written request at any time such
information and assurances as Landlord or Managing Agent, as the case may
be, may reasonably request that Tenant has not breached any of the
provisions of this Lease. It is intended hereby that any such statement
delivered pursuant to this Article may be relied upon by a prospective
purchaser or mortgagee of Landlord's interest, or any assignee of any
mortgage upon Landlord's interests in the Real Estate. The foregoing
obligation shall be deemed a material obligation of Tenant. Tenant's
failure to timely deliver such statement shall be conclusive evidence (x)
that this Lease is in full force and effect, without modification except as
may be represented by Landlord; (y) that there are no uncured defaults in
Landlord's performance and Tenant has no right of offset, counterclaim,
defenses or deduction against the Minimum Rent, Adjusted Minimum Rent,
additional rent or against Landlord; and (z) that no more than one month's
installment of Minimum Rent or Adjusted Minimum Rent has been paid in
advance.
41.5 Tenant agrees at any time and from time to time, upon not
less than ten (10) days' prior written request, that Tenant shall
demonstrate to Landlord Tenant's financial status and the name,
relationship to Tenant, and financial status of any Sublessee by promptly
submitting to Landlord or Managing Agent a current balance sheet (dated no
more than ninety (90) days prior to such request) and statements of income
or profit and loss, all prepared in accordance with generally accepted
accounting principles, consistently applied. The foregoing obligation shall
be deemed a material obligation of Tenant.
42. PARTNERSHIP TENANT
------------------
42.1 If Tenant is a partnership, joint venture, proprietorship
or unincorporated association (or is comprised of two (2) or more persons,
individually and as co-partners, co-proprietors or joint venturers) or if
Tenant's interest in this Lease shall be assigned to a partnership, joint
venture, proprietorship or unincorporated association (or to two (2) or
more persons, individually and as co-partners, co-proprietors or joint
venturers) pursuant to Article 16 hereof or otherwise (any such partnership
joint venture, proprietorship or unincorporated association being referred
to herein as a "PARTNERSHIP TENANT", and any partner, joint venturer or
other member thereof being referred herein to as a "PARTNER"), the
following provisions of this Section shall apply to such Partnership
Tenant: (a) the liability of each of the Partners shall be joint and
several, individually and as a Partner; and (b) each of the Partners,
whether or not such person shall be one of the persons comprising Tenant at
the time in question, hereby consents in advance to, and agrees to be bound
by, any written instrument which may hereafter be executed by the
Partnership Tenant or by any of the Partners, changing, modifying or
discharging this Lease, in whole or in part, or surrendering all or any
part of the Demised Premises to Landlord, and by any notices, demands,
requests or other communications which may hereafter be given, by the
Partnership Tenant or by any of the Partners; (c) any bills, statements,
notices, demands, requests or other communications given or rendered to the
Partnership Tenant or to any of the Partners shall be deemed given or
rendered to the Partnership Tenant and to all such Partners and shall be
binding upon the Partnership Tenant and all Partners; (d) if the
Partnership Tenant shall admit new Partners all of such new Partners shall,
by their admission to the Partnership Tenant, be
38
deemed to have assumed performance of all of the terms, covenants and
conditions of this Lease on Tenant's part to be observed and performed, and
shall be liable for such performance, together with all other Partners,
jointly or severally, individually and as a Partner; and (e) the
Partnership Tenant shall give prompt notice to Landlord of the admission of
any such new Partners, and upon demand of Landlord, shall cause each such
new Partner to execute and deliver to Landlord an agreement in form
satisfactory to Landlord, wherein each such new Partner or joint venturer
shall so assume performance of all of the terms, covenants and conditions
of this Lease on Tenant's part to be observed and performed (but neither
Landlord's failure to request any such agreement nor the failure of any
such new Partner to execute or deliver any such agreement to Landlord shall
vitiate the provisions of subsection (d) of this Section).
43. INTENTIONALLY DELETED PRIOR TO EXECUTION
----------------------------------------
44. CORPORATE AUTHORITY
-------------------
44.1 Throughout the term of this Lease, Tenant shall maintain
its good standing in its organizational jurisdiction and in the State of
New Jersey. The undersigned officer of Tenant represents that the person
executing and delivering this Lease has been duly authorized to enter into
this Lease and that the execution and delivery of this Lease does not and
shall not violate any provision of any by-law, agreement, order, judgment,
governmental regulation or any other obligation to which that party is
subject.
44.2 Upon the request of Landlord or Managing Agent, Tenant
shall promptly deliver an affidavit or certification by its secretary,
assistant secretary or other appropriate person to the above effect.
45. MANAGING AGENT
--------------
45.1 Landlord reserves the right at any time to delete all
references in this Lease to "Managing Agent" or to change the person or
entity acting as Managing Agent by giving notice of the exercise of such
right to Tenant and to Managing Agent. Such notice shall become effective
five (5) business days after sending as provided in Article 47, or such
later time as may be stated in such notice.
45.2 Managing Agent reserves the right at any time to delete
all references in this Lease to "Managing Agent" by giving notice of the
exercise of such right to Tenant and to Landlord. Such notice shall become
effective five (5) business days after sending as provided in Article 47,
or such later time as may be stated in such notice.
45.3 Nothing contained in this Article nor any notices pursuant
to this Article shall in any way modify or amend any other written
agreement to which Landlord and Managing Agent are parties.
46. BROKER
------
46.1 Tenant represents that no real estate broker other than
the Broker(s) (if any) listed under Section 1.1(r) is responsible for
bringing about, or negotiating, this Lease; and Tenant has not dealt with
any other broker, agent, salesperson, leasing consultant, or similar person
in connection with the Demised Premises.
46.2 In accordance with the foregoing representation, Tenant
agrees to defend, indemnify and hold harmless the Landlord, its affiliates
and/or subsidiaries, partners and officers from any legal action, expense
or liability (including attorney's fees) arising out of any claim for
commission by any person other than
39
the Broker claiming or alleging to have acted on behalf of or to have dealt
with Tenant.
47. NOTICES
-------
47.1 All notices, which may or are required to be given by
either party hereunder to the other, shall be in writing.
47.2 All notices by Landlord to Tenant shall be deemed properly
given only if sent by Landlord or its Managing Agent and mailed by
registered or certified mail, return receipt requested, postage prepaid, or
by reliable, independent courier, with guaranteed next-business-day
delivery, addressed to Tenant at the address set forth in Article 1, or to
such other address as Tenant may from time to time designate by written
notice to Landlord.
47.3 All notices by Tenant to Landlord shall be deemed properly
given only if sent by registered or certified mail, return receipt
requested, postage prepaid, or by reliable, independent courier with
guaranteed next-business-day delivery, addressed to Landlord at the address
set forth in Article 1 hereof, with a copy to:
Bellemead Management Co., Inc.
4 Becker Farm Road
Roseland, New Jersey 07068
Attention: Legal Department
and, at the prior written request of Landlord or Managing Agent to such
other persons and/or addresses as Landlord or its Managing Agent may from
time to time designate by written notice to Tenant.
47.4 All notices referred to hereunder shall be deemed given
and received two (2) days after the date said notice is mailed by United
States registered or certified mail as aforesaid, in any post office
regularly maintained by the United States Government, or upon actual
receipt if sent by independent courier.
47.5 Notwithstanding the other provisions of this Article, any
written notice under this Lease may be personally served upon an officer or
partner of Landlord or Tenant, in which case such notice shall be deemed
given when delivered and receipted.
48. INTERPRETATION
--------------
48.1 If any of the terms or provisions of this Lease, or the
application thereof to any party or circumstance, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application
of such term or provision to parties or circumstances other than to those
as to whom or to which it is held invalid or unenforceable, shall not be
affected thereby. If any time period stated herein shall be in
contravention of-any Law, such time period shall be modified to be that
time period permitted by such Law which is nearest to the time period
stated herein. Each term and provision of this Lease shall be interpreted
so that it is valid and enforceable to the fullest extent permitted by Law,
in order to reflect the agreement of the parties as expressed herein.
48.2 The term "this Lease" shall include all the Exhibits and
written amendments hereto or thereto. The terms "herein", "hereunder",
"hereof", "herewith", and "hereto" shall refer to this Lease.
48.3 Intentionally Deleted Prior to Execution.
48.4 As a material inducement to Landlord to enter into this
Lease, Tenant agrees that this Lease shall be governed by and construed in
accordance with the Laws of and enforced only in the
40
courts of New Jersey. Tenant irrevocably appoints the Secretary of State of
New Jersey as Tenant's agent for service of process related to this Lease,
should Tenant no longer be in occupancy of the Demised Premises; and
neither Tenant's failure to qualify to do business in the State of New
Jersey nor Tenant's failure to maintain such qualification shall affect the
foregoing appointment. The foregoing appointment shall be a special power
coupled with an interest and shall be irrevocable. Tenant hereby
irrevocably submits itself to the jurisdiction of the courts of the State
of New Jersey and to the jurisdiction of the United States District Court
for the District of New Jersey for the purposes of any suit, action or
other proceeding brought by Landlord arising out of or based upon this
Lease. Tenant hereby waives and agrees not to assert as a defense or
otherwise in any such suit, action or proceeding any claim that Tenant is
not subject personally to the jurisdiction of the above-named courts; that
its property is exempt or immune from attachment or execution; that the
suit, action or proceeding is bought in an inconvenient forum; that the
venue of the suit, action or proceeding is improper; or, subject to the
subject matter jurisdiction of such court, that this Lease may not be
enforced in or by such court.
48.5 Tenant acknowledges that this Lease represents a written
memorial of the terms negotiated by Landlord and Tenant, and Landlord and
Tenant agree that this Lease shall be given a fair and reasonable
construction in accordance with the parties' intent as expressed herein,
without regard to any presumption or other rule requiring construction
against the party electing to cause this Lease to be drafted or prepared.
48.6 The Article titles or content organization of this Lease
exist only as a matter of reference or convenience and in no way define,
limit, extend or describe the scope of this Lease or the intent of any of
the provisions hereof.
48.7 Tenant acknowledges and agrees that it has had the
assistance of counsel in the review, negotiation and execution of this
Lease or has waived its opportunity to employ counsel for such purpose.
48.8 Neither this Lease nor any memorandum hereof shall be
recorded by Tenant. Any violation of this provision shall be deemed an
Event of Default hereunder.
48.9 Any claim, demand, right or defense by Tenant that arises
out of this Lease, or the negotiations that preceded this Lease, shall be
barred unless Tenant commences an action thereon, or interposes a defense
by reason thereof, within one (1) year after the date of the inaction,
omission, event or action that gave rise to such claim, demand, right or
defense. Tenant acknowledges and understands, after having consulted with
its legal counsel, that the purpose of this Section is to shorten the
period within which Tenant would otherwise have to raise such claims;
demands, rights or defenses under applicable Laws.
49. NO OFFER, AGREEMENT OR REPRESENTATIONS
--------------------------------------
49.1 No broker or agent nor any salesperson or employee of
either has authority to make or agree to make a lease on behalf of the
Landlord named herein or any other agreement or undertaking in connection
herewith, including, but not limited to the modification, amendment of or
cancellation of a lease.
49.2 The mailing or delivery of this document or any draft of
this document by Landlord or its agent to Tenant, its Agent or attorney
shall not be deemed an offer by the Landlord to lease the Demised Premises
on the terms set forth in such draft, and such document or draft may be
withdrawn or modified by Landlord or its agent at any time and for any
reason. The purpose of this Section is to place Tenant on notice that this
document shall not
41
be effective, nor shall Tenant have any rights with respect hereto, unless
and until Landlord shall execute and accept this document.
49.3 All prior undertakings and agreements between Landlord and
Tenant are merged in this Lease and it completely expresses their agreement
with respect to the subject matter hereof. This Lease has been entered into
after full investigation, neither party relying upon any statement or
assumption not completely set forth herein. No representations or promises
shall be binding on the parties hereto except those representations and
promises contained in a fully-executed copy of this document or in some
future writing signed by Landlord and Tenant.
50. APPLICABILITY TO HEIRS AND ASSIGNS
----------------------------------
50.1 The provisions of this Lease shall apply to, bind and
inure to the benefit of Landlord and Tenant, and their respective heirs,
legal representatives, trustees, successors and assigns, subject to the
constraints on alienation and limits on liability contained herein.
51. RENEWAL OPTION
--------------
51.1 Subject to the provisions of Section 51.2 below, Tenant
shall have the option to renew this Lease for the Renewal Term set forth in
Section 1.1(t) (the "RENEWAL OPTION"), which Renewal Term shall commence
upon the expiration of the Initial Term. Subject to the determination of
Minimum Rent as set forth below, the terms, covenants and conditions during
the Initial Term, including but not limited to the definitions of the First
Tax Year and First Operating Year as set forth in Article 1 hereof, shall
be projected and carried over into the renewal term (a "RENEWAL TERM"),
except as specifically set forth hereinafter to the contrary.
51.2 Tenant's Renewal Option, as provided in Sections 1.1 and
51.1 above, shall be strictly conditioned upon and subject to the
following, each of which shall be considered material hereto:
(a) Tenant shall notify Landlord in writing ("TENANT'S
RENEWAL NOTICE") of Tenant's exercise of its option to renew this Lease at
least six (6) months, but not more than twelve (12) months, prior to the
expiration of the then current Term;
(b) At the time Landlord receives Tenant's Renewal Notice
as provided in Section 51.2 (a) above, and at the expiration of the Initial
Term, there shall exist no Event of Default under the terms or provisions
of this Lease, and the Tenant named in Section 1.1 hereof shall be in
occupancy of the entire Demised Premises. The conditions contained in this
Section 51.2(b) may be waived by Landlord at its sole discretion and may
not be used by Tenant as a means to negate the effectiveness of Tenant's
exercise of this option to renew;
(c) Tenant shall have no further renewal option other
than the option to extend for the Renewal Term as set forth in Section
1.1(t);
(d) The Renewal Option shall be deemed personal to the
Tenant named on the first page of this Lease and may not be assigned or
assumed;
(e) Landlord shall have no obligation to do any work or
perform any special services for any Renewal Term with respect to the
Demised Premises or the remainder of the Real Estate, which Tenant agrees
to accept in their then "as is" condition;
(f) At the request of either party, Landlord and Tenant
shall promptly execute and return to the other party a
42
written amendment to this Lease memorializing the commencement, Minimum
Rent payable, and Expiration Date of the Renewal Term; and
(g) No later than thirty (30) days prior to the
commencement of the Renewal Term, Tenant shall deposit with Landlord such
additional sums as may be required to increase any Security then held by
Landlord proportionate to the increase in the Minimum Rent during that
Renewal Term.
51.3 (a) Landlord shall notify Tenant ("LANDLORD'S
DETERMINATION NOTICE") of Landlord's determination of the Market Rent (as
hereinafter defined) within thirty (30) days after Landlord's receipt of
Tenant's Renewal Notice. If Tenant disagrees with Landlord's determination
of Market Rent, Tenant shall notify Landlord ("TENANT'S NOTICE OF
DISAGREEMENT") within fifteen (15) days of receipt of Landlord's
Determination Notice. Time shall be of the essence with respect to Tenant's
Notice of Disagreement, and the failure of Tenant to give such notice
specifically as provided below within the time period set forth above shall
conclusively be deemed an acceptance by Tenant of the Market Rent as
determined by Landlord and a waiver by Tenant of any right to dispute such
Market Rent.
(b) Tenant's Notice of Disagreement, shall contain either
(1) a cancellation of Tenant's exercise of its Renewal Option or (2) a
request to submit the determination of Market Rent to arbitration as
provided below.
(c) Landlord and Tenant shall, within thirty (30) days of
the date on which Tenant's Notice of Disagreement under Subsection
51.3(b)(2) is given, each appoint an Appraiser (hereinafter defined) for
the purpose of determining the Market Rent. An "APPRAISER" shall mean a
duly qualified impartial real estate appraiser having at least ten (10)
years' experience in the area in which the Demised Premises are located. In
the event that the two (2) Appraisers so appointed fail to agree as to the
Market Rent within a period of thirty (30) days after the appointment of
the second Appraiser, such two (2) Appraisers shall forthwith appoint a
third Appraiser who alone shall make a determination of Market Rent within
thirty (30) days thereafter. If such two Appraisers fail to agree upon such
third Appraiser within ten (10) days following the last thirty (30) day
period, such third Appraiser shall be appointed by the presiding Judge of
the Superior Court of the State of New Jersey for the County in which the
Real Estate is located. Such two Appraisers or third Appraiser, as the case
may be, shall proceed with all reasonable dispatch to determine the Market
Rent. The decision of such two Appraisers or third Appraiser shall be final
and shall be unappealable, absent any showing of fraud by such
Appraiser(s); such decision shall be in writing and a copy shall be
delivered simultaneously to Landlord and to Tenant.
(d) If such two Appraisers or third Appraiser, as the
case may be, shall fail to deliver a decision as set forth above prior to
the commencement of the Renewal Term, Tenant shall pay to Landlord
thereafter on the first day of each month until the decision of the
Appraiser(s) is rendered "ESTIMATED MINIMUM RENT", which shall be the
average of (i) Minimum Rent payable under this Lease as of the last day of
the term preceding the Renewal Term in question and (ii) the rent set forth
in Landlord's Determination Notice, plus any amounts payable by Tenant
pursuant to Article 6, until such decision is so delivered. If the Market
Rent as finally determined above is in excess of the Estimated Minimum Rent
actually paid by Tenant to Landlord during such interim, then Tenant,
within ten (10) business days of demand by Landlord, shall pay to Landlord
the difference between the Estimated Minimum Rent actually paid by Tenant
to Landlord and the Market Rent from the commencement of the Renewal Term.
If the Market Rent as determined above is in excess of the actual rent paid
by Tenant, then Landlord shall apply such excess against amounts due
Landlord from Tenant
43
hereunder as such amounts become due.
(e) Landlord and Tenant shall be responsible for and
shall pay the fee of the Appraiser appointed by each of them respectively,
and Landlord and Tenant shall share equally the fee of the third Appraiser,
if any.
(f) Promptly upon determination of the MARKET RENT for
the respective Renewal Term, Tenant shall execute and deliver to Landlord
or Managing Agent an amendment to this Lease prepared by Landlord setting
forth the terms of the Renewal Term.
51.4 (a) The Minimum Rent during each Renewal Term shall be
the greater of (1) Market Rent (as defined in clause (b) below) or (2) the
Adjusted Minimum Rent as of the last day of the immediately-preceding term.
(b) For purposes of this Article, "MARKET RENT" shall
mean the projected fair market rent for office space containing the
Rentable Size of the Demised Premises (during the Renewal Term), as of the
commencement date of the Renewal Term, based upon the rents generally in
effect for first class office space in the area in which the Real Estate is
located. Market Rent shall be determined on what is commonly known as a
"gross" basis; that is, in computing Market Rent, it shall be assumed that
all real estate taxes and operating expenditures for customary services are
included in such Market Rent and are not passed through to the Tenant as
separate additional charges.
(c) The Minimum Rent for each the Renewal Term shall be
increased from time to time thereafter as provided in this Lease, including
as provided in Article 6 hereof.
Tenant waives any claims or action against Landlord or its
successor in title in the event that the renewal provided for in this Lease
is made impossible because of the taking of the Demised Premises in whole
or in part for public use by condemnation. Tenant further agrees to waive
any demand or claim for any award or allowance or any part thereof granted
to Landlord as compensation for such condemnation.
44
IN WITNESS WHEREOF, the parties hereto have entered into this
Lease as of the day first set forth above.
ATTESTED BY: LANDLORD:
BELLE MEAD CORPORATION
/s/ Marc Leonard Ripp By: /s/ Karen Deffina
- -------------------------------- ----------------------------
Marc Leonard Ripp Karen Deffina
Assistant Secretary Vice President
APPLY CORPORATE SEAL HERE
ATTESTED BY: MANAGING AGENTT:
BELLEMEAD MANAGEMENT CO., INC.
/s/ Marc Leonard Ripp By: /s/ Karen Deffina
- -------------------------------- ----------------------------
Marc Leonard Ripp Karen Deffina
Assistant Secretary Vice President
APPLY CORPORATE SEAL HERE
ATTESTED BY: TENANT:
NORTH AMERICAN WATCH CORPORATION
By: /s/ Michael Bush
- -------------------------------- ----------------------------
Name: Name: Michael Bush
------------------------- --------------------------
(Please Print) (Please Print)
Title: Title: Executive VP & COO
------------------------ -------------------------
(Please Print) (Please Print)
APPLY CORPORATE SEAL HERE
45
EXHIBIT A
---------
[MECHANICAL DRAWINGS]
EXHIBIT A-1
-----------
[MECHANICAL DRAWINGS]
EXHIBIT "B"
-----------
1200 WALL STREET WEST
LYNDHURST, NEW JERSEY
LEGAL DESCRIPTION
-----------------
BEGINNING at a point in the southwesterly line of Wall Street West
distant southeasterly along the same 898' from the southeasterly line of
Polito Avenue and running thence:
(1) along the southwesterly line of Wall Street west S52 -32'-40"E,
290.65'; thence
(2) along a 100' radius curve to the right, 45.43'; thence
(3) along the westerly lane of Clay Avenue S26 -31'E, 481.01'; thence
(4) still along the same on a 375' radius curve to the right, 164.40';
thence
(5) still along the same S1'-23'-55"E, 306.04'; thence
(6) N65'-31'-25"W, 417.37' along the adjacent property line; thence
(7) still along the same N24 -28'-35"E, 287.31'; thence
(8) still along the same N53 -32'-40"W, 615.01'; thence
(9) still along the same N37 -27'-20"E, 385.77' to the beginning.
Subject to a 15' wide drainage easement along courses 6, 7 and 8.
EXHIBIT C
CLEANING SERVICE RIDER
The following summarizes basic cleaning services to be provided on
business days (excluding weekends and Legal Holidays) and to be included in
Operating Costs.
GENERAL CLEANING OF OFFICE AREA
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Cleaning Services provided five (5) business days per week.
Cleaning hours Monday through Friday, after 5:30 p.m. and before 8:00 a.m.
of the following business day.
On the last day of the week the work will be done after 5:30 p.m. Friday,
but before 8:00 a.m. Monday.
Furniture will be dusted and desk tops will be wiped clean. However, desks
with loose papers or other matter on the top will not be cleaned.
Window sills and baseboards to be dusted and washed as reasonably
necessary.
Office wastepaper baskets will be emptied, provided garbage, trash and
other refuse is separated as required pursuant to any Law or Rule and
Regulation.
Cartons or refuse in excess of that which can be placed in wastepaper
baskets will not be removed. Tenants are required to place such unusual
refuse in trash cans or a spot designated by the Landlord.
Cleaner will not remove nor clean tea or coffee cups or similar containers;
also, if such liquids are spilled in wastebaskets, the wastebaskets will be
emptied but not otherwise cleaned. Wastepaper baskets shall be lined with
vinyl or plastic bags.
Exposed sheets of vinyl composition tile floors will be swept daily.
Exposed sheets of carpets will be swept daily and vacuumed weekly.
Seat cushions on chairs, sofas, etc., will be vacuumed weekly, unless
cluttered with paper or other matter.
LAVATORIES
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All lavatory floors to be swept and washed with disinfectant nightly.
Tile walls and dividing partitions to be washed and disinfected weekly.
Basins, bowls, urinals to be washed and disinfected daily.
Mirrors, shelves, plumbing work, bright work, and enamel surfaces cleaned
nightly.
Waste receptacles and wash dispensaries to be filled with appropriate
tissues, towels and soap supplied by the Landlord.
MAIN LOBBY, ELEVATORS, CORRIDORS AND BUILDING EXTERIOR
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Wipe and wash all floors in main lobby nightly.
Wipe and/or vacuum elevator floor nightly.
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Polish floors weekly in elevator.
Elevator cab to be wiped clean daily and thoroughly cleaned and polished
weekly.
Lobby walls, and glass, to be wiped clean daily and thoroughly cleaned and
polished weekly.
Lobby entrance doors, and windows to be washed weekly.
Windows will be cleaned when necessary, but not less than once each year,
inside and outside.
MISCELLANEOUS SERVICES
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Sweep sidewalk in front of Building entrances daily.
Remove snow and ice from sidewalks and Parking Areas as soon as reasonably
possible (but not between the hours of 6:00 p.m. and 8:00 a.m.) when
accumulation reaches 3" or more, to the extent necessary to make such
sidewalks and parking areas reasonably safe and usable.
Keep stairways clean.
Keep Custodian's Rooms and Mechanical Rooms clean and in orderly condition
at all times.
WORK EXCLUDED
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Cleaning services do not include the washing, polishing, or waxing of
furniture, file cabinets, wastebaskets or other personal property of
Tenant. When such work is necessary, Tenant may make necessary arrangements
for same directly with Landlord's cleaning employees or contractors.
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EXHIBIT D
LEGAL HOLIDAYS
(a) The day(s) officially celebrated by the State of New Jersey for the
following holidays:
New Year's Day
Martin Luther King's Birthday
Washington's Birthday
Memorial Day
Independence Day
Labor Day
Thanksgiving
Christmas Day
(b) Such other holidays observed from time to time by the governments of
the United States of America and/or the State of New Jersey, as designated
by Landlord to Tenant in writing.
EXHIBIT E
RULES AND REGULATIONS
1. The sidewalks, entrances, driveways, passageways, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or
encumbered by Tenant or used for storage or for any other purpose other
than for ingress to or egress from the Demised Premises and for delivery of
merchandise and equipment to or from the Demised Premises in a prompt and
efficient manner, using elevators and passageways designated for such
delivery by Landlord. There shall not be used in any space, or in the
public hall of the Building, either by Tenant or by jobbers or others in
the delivery or receipt of merchandise, any hand trucks, except those
equipped with rubber tires and sideguards. Tenant shall provide protection
of all floor surfaces during the moving of furniture or heavy equipment as
may be reasonably required by Landlord or its Managing Agent.
2. Freight, furniture, business equipment, merchandise and bulky matter
of any description shall be delivered to and removed from the Demised
Premises only on the freight elevators and through the service entrances
and corridors, and only during hours and in a manner approved by Landlord.
Landlord reserves the right to inspect all freight to be brought into the
Building and to exclude from the Building all freight which violates any of
these Rules and Regulations or this Lease.
3. The water and wash closets and plumbing fixtures shall not be used for
any purposes other than those for which they were designed or constructed
and no sweepings, rubbish, rags, sanitary napkins, acids or other
substances shall be deposited therein, and the expense of any breakage,
stoppage, or damage resulting from the violation of this rule shall be
borne by Tenant.
4. No carpet, rug or other article shall be hung or shaken out of any
window of the Building; and Tenant shall not sweep or throw or permit to be
swept or thrown from the Demised Premises any dirt or other substances into
any of the corridors or halls, elevators, or out of the doors or windows or
stairways of the Building and Tenant shall not use, keep or permit to be
used or kept any foul or noxious gas or substance in the Demised Premises,
or permit or suffer the Demised Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building
by reason of noise, odors, and/or vibrations, or interfere in any way with
other tenants or those having business therein, nor shall any animals or
birds be kept in or about the Building. Smoking or carrying lighted cigars
or cigarettes in the elevators or other common areas of the Building is
prohibited.
5. No awnings, signs or other projections shall be attached to the
outside walls of the Building without the prior written consent of
Landlord, which may be withheld at Landlord's sole discretion.
6. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Demised Premises or the Building or on the inside of the Demised Premises
if the same is visible from the outside of the Demised Premises without the
prior written consent of Landlord, except that the name of Tenant may
appear on the entrance door of the Demised Premises in lettering approved
by Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may remove and dispose of same without any liability, and may
charge the expense incurred by such removal to Tenant. Any interior
listings and directories shall be inscribed, painted or affixed for Tenant
only by Landlord or Managing Agent at the expense of such Tenant, and shall
be of a size, color and style acceptable to Landlord or Managing Agent.
7. Tenant shall not mark, paint, drill into, or in any way deface any
part of the Demised Premises or the Building. No boring, cutting or
stringing of wires shall be permitted, except with the prior written
consent of Landlord, and as Landlord may direct. Tenant shall not lay
linoleum, or other similar floor covering, so that the same shall come in
direct contact with the floor of the Demised Premises, and, if linoleum or
other similar floor covering is desired to be used, an interlining of
builder's deadening felt shall be first affixed to the floor, by a paste or
other material, soluble in water, pursuant to Landlord's direction, the use
of cement or other similar adhesive material being expressly prohibited.
8. No additional locks, bolts or alarms of any kind shall be placed upon
any of the doors or windows by Tenant, without the prior written consent of
Landlord which shall not be unreasonably withheld. No changes shall be made
in existing locks or mechanisms thereof without the prior written consent
of Landlord which shall not be unreasonably withheld. Tenant shall give
Landlord or Managing Agent a duplicate or master key or access card or code
for each and every door in the Demised Premises. Tenant must, upon the
termination of his tenancy, restore to Landlord all keys or access cards to
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the Demised Premises, the Building, and any doors therein, either furnished
to, or otherwise procured by, Tenant, and in the event of the loss of any
keys or access cards, so furnished, Tenant shall pay to Landlord the cost
thereof. Tenant, at its expense, shall be responsible for repair to all
doors and locks which are in violation of this Rule, and shall pay any
alarm fee resulting from Landlord or Managing's Agent's entrance into the
Demised Premises as permitted under this Lease.
9. Canvassing, soliciting, pamphletting and peddling in the Building and
about the sidewalks, driveways and parking areas adjacent thereto are
prohibited and Tenant shall cooperate to prevent the same. Tenant shall
report all peddlers, solicitors and beggars to the Managing Agent or as
Landlord otherwise requests.
10. Landlord reserves the right, but shall have no obligation, to exclude
from the Building between the hours of 6 P.M. and 8 A.M. and at all hours
on Sundays, and Legal Holidays all persons who do not present a pass to the
Building signed by Landlord. Landlord will furnish passes to persons for
whom Tenant requests same in writing. Tenant shall be responsible for all
persons for whom it requests such pass and shall be liable to Landlord for
all acts of such persons.
11. Landlord shall have the right to prohibit any advertising by Tenant
which in Landlord's opinion, tends to impair the reputation of the Building
or its desirability as a Building for first-class offices, and upon written
notice from Landlord, Tenant shall refrain from or discontinue such
advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
Demised Premises, any inflammable, combustible or-explosive fluid,
material, chemical or substance, or any hazardous substance in violation of
Law or of this Lease, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or
emanate from the Demised Premises.
13. If the Building contains central air conditioning and ventilation,
Tenant agrees to keep all windows and exterior doors closed at all times
and to abide by all rules and regulations issued by the Landlord with
respect to such services.
14. Tenant shall not move any safe, heavy machinery, heavy equipment,
bulky matter, or fixtures into or out of the Building without Landlord's
prior written consent. If such safe, machinery, equipment, bulky matter or
fixtures requires special handling, all work in connection therewith shall
comply with all Laws applicable thereto and shall be done during such hours
as Landlord may
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designate.
15. To the extent required by applicable Laws or Governmental Authorities,
Tenant shall separate its rubbish into any required categories including,
but not limited to, food products, paper, solid wastes, metals and glass.
Any excess trash or garbage which Tenant generates in excess of that
generated by a normal office user, and all garbage from Tenant's food
service operation, if any, shall be removed by the Landlord upon notice
from Tenant, at Tenant's sole cost and expense. Tenant shall not dispose of
any hazardous substance or waste in wastebaskets, boxes, or in Landlord's
dumpster or trash compactor.
16. Tenant shall take reasonable action to ensure that its visitors do not
(a) utilize any parking spaces designated for the use of others, nor (b)
park in any driveways, fire lanes or other areas not striped for vehicular
parking.
17. No portion of the driveways or parking areas serving the Building
shall be used for washing, maintaining, oil changing, repairing, or
installing or replacing parts in any vehicle, except to the extent that
repairs are reasonably necessary to fix a flat tire or start an engine
enabling the vehicle to be driven from the Real Estate. No vehicle shall be
towed from the Real Estate by Tenant, its or its visitors, except after
Tenant informs Landlord or the Managing Agent of such removal. Any vehicle
parked on the Real Estate without proper registration and inspection or for
longer than seven (7) continuous days may be removed by Landlord, which
removal shall be at Tenant's expense if the property owned or used by of
Tenant, or its visitors or invitees and is not removed within five (5)
business days after notice to Tenant to do so.
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