LEASE AGREEMENT
Landlord: Gesipa Real Estate Partners
Tenant: Universal Display Corporation
Premises: 375 Phillips Boulevard
Date: October 12, 1998
INDEX
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Article Page
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1. Leased Premises............................................................................................1
2. Tenant Fit-Out.............................................................................................2
3. Term of Lease..............................................................................................2
4. Security Deposit...........................................................................................2
5. Rent.......................................................................................................3
6. Additional Rent............................................................................................3
7. Use........................................................................................................7
8. Repairs and Maintenance....................................................................................7
9. Landlord's Services........................................................................................8
10. Inability to Perform........................................................................................8
11. Insurance...................................................................................................9
12. Landlord's Access for Future Construction...................................................................9
13. Fixtures....................................................................................................9
14. Changes in or About Premises...............................................................................10
15. Assignment and Subletting..................................................................................10
16. Casualty...................................................................................................12
17. Compliance With Local Rules and Regulations................................................................13
18. Default; Termination.......................................................................................13
19. Inspection By Landlord....................................................................................16
20. Notices....................................................................................................16
21. Non-Waivers................................................................................................16
22. Alterations or Improvements By Tenant......................................................................16
23. Non-Liability of Landlord..................................................................................17
24. Condemnation...............................................................................................17
25. Increase of Insurance Rates................................................................................18
26. Fire Insurance Coverage....................................................................................18
27. Indemnity.................................................................................................19
28. Mutual Waiver of Subrogation...............................................................................19
29. Force Majeure..............................................................................................19
30. Mortgage Priority..........................................................................................20
31. Surrender By Tenant........................................................................................20
32. Signs and Advertising......................................................................................21
33. Estoppel Certificate.......................................................................................22
34. [INTENTIONALLY OMITTED]....................................................................................22
35. [INTENTIONALLY OMITTED]....................................................................................22
36. Landlord's Right of Entry and Alterations..................................................................22
37. Landlord's Remedies and Expenses...........................................................................22
38. Landlord's Reserved Rights.................................................................................22
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Article Page
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39. Rules and Regulations......................................................................................23
40. Waivers....................................................................................................23
41. Severability...............................................................................................23
42. Quiet Enjoyment............................................................................................23
43. Lease Construction.........................................................................................24
44. Binding Effect.............................................................................................24
45. Definitions................................................................................................24
46. Paragraph Heading..........................................................................................24
47. Execution and Delivery.....................................................................................24
48. Regulation of Common Facilities............................................................................24
49. Performance By Tenant......................................................................................24
50. No Modification............................................................................................25
51. Covenants and Further Assurances...........................................................................25
52. Brokerage..................................................................................................25
53. Mortgagee Notice Clause....................................................................................25
54. Right of First Refusal.....................................................................................26
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THIS LEASE AGREEMENT, made this 12th day of October, 1998, between
Gesipa Real Estate Partners, a New Jersey partnership, having an office at 375
Phillips Boulevard, Ewing, New Jersey 08628 ("Landlord"), and Universal Display
Corporation, having an office at 3 Bala Plaza East, Suite 104, Bala Cynwyd,
Pennsylvania 19004 ("Tenant").
W I T N E S S E T H:
WHEREAS, Landlord is the owner of certain lands and premises located at
375 Phillips Boulevard in the Township of Ewing, in the County of Mercer and
State of New Jersey, (the "Property"); and
WHEREAS, Landlord occupies on the Property a building commonly known as
375 Phillips Boulevard (Princeton Crossroads) containing approximately 40,200
square feet (the "Building"); and
WHEREAS, Tenant shall rent and occupy a portion of the Building
containing approximately 11,000+ square feet of gross rentable area (the "Leased
Premises"), together with the right of Tenant to use common area spaces of the
Building and improvements, all in accordance with terms and conditions
hereinafter mentioned and the considerations herein expressed,
NOW, THEREFORE, in consideration of the covenants and conditions
hereinafter set forth and for other good and valuable considerations, Landlord
does demise, lease and let unto Tenant, and Tenant does rent and take from
Landlord the Leased Premises, and Landlord and Tenant mutually covenant and
agree as follows:
1. LEASED PREMISES
1.1 The Leased Premises consists of approximately 11,000
square feet on the Reed Road side of the building. The measurement of the Leased
Premises for purposes of this Lease shall be from outside glass to outside glass
and the middle of the interior wall. Upon completion of final plans for the
Leased Premises, such plans shall constitute part of this Lease and shall be
attached hereto and made a part hereof.
1.2 The use of the Leased Premises includes the right to use
the common facilities, including, but not limited to, entranceway, foyers,
lavatories, stairways, elevators, plaza and mall areas, parking areas, access
roads and pedestrian walks, as the same are located in the Building and on the
Property.
1.3 Landlord covenants and agrees with Tenant that Tenant
shall have the right to use 3.9 parking spaces for each 1,000 square feet of
Leased Premises on a non-exclusive, non-reserved basis, and subject to such
reasonable terms, conditions and regulations as may be imposed by Landlord from
time to time.
2. TENANT FIT-OUT. Tenant shall be responsible, at its sole cost and
expense, for all design and construction costs associated with creating the
Leased Premises within the Building. In addition, the Tenant shall install its
own meter for the direct metering of its electrical usage during the term of
this Lease. Landlord shall grant to Tenant and its contractors such reasonable
access as may be necessary to accomplish same, provided that Tenant's work shall
not unreasonably interfere with the conduct of Landlord's business.
All Tenant's work (i) shall be done by contractors reasonably
acceptable to Landlord (ii) shall be done in a good, workmanlike manner, using
good and sufficient materials, in accordance with plans approved by Landlord and
(iii) shall comply with all applicable laws, including, without limitation, all
applicable building codes, local ordinances, Rules and Regulations of Princeton
Crossroads, and the Americans with Disabilities Act.
3. TERM OF LEASE
3.1 Landlord leases unto Tenant, and Tenant hires the Leased
Premises for the term of five (5) years to commence on the first day of the
calendar month following the date when the Leased Premises are occupied by
Tenant and Tenant is able to conduct business therein (the "Commencement Date"),
but in no event will the Commencement Date be later than January 1, 1999.
3.2 Notwithstanding the above, Tenant shall have the right to
terminate this Lease at the end of the third lease year provided (i) Tenant
gives Landlord a minimum of 270 days prior written notice of such termination
(the "Termination Notice"), such notice to be given in accordance with the
provisions of the Lease, and (ii) concurrently with delivery of the Termination
Notice, Tenant pays to Landlord a sum equal to six (6) months Base Rent (as
defined herein).
4. SECURITY DEPOSIT. Tenant shall deposit with Landlord upon execution
hereof a Security Deposit in the amount of $22,000 as security for Tenant's
faithful performance of Tenant's obligations under this lease. The Landlord
shall conduct a review of the financial condition and results of operations of
the Tenant within thirty (30) days of the execution of this Lease Agreement. In
the event that the Landlord, in its sole discretion, deems that the financial
condition of the Tenant is such that a reduced security deposit is deemed
appropriate by the Landlord, the Landlord shall return a portion of the security
deposit as it in its sole discretion deems reasonable and appropriate under the
circumstances. If Tenant fails to pay Base Rent or other rent or charges due
hereunder, or otherwise defaults under this Lease, Landlord may use, apply or
retain all or any portion of the Security Deposit for the payment of the
reasonable amount of any amount due Landlord or to reimburse or compensate
Landlord for any liability, cost, expense, loss or damage (including reasonable
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attorneys' fees) which Landlord may suffer or incur by reason thereof. If
Landlord uses or applies all or any portion of said Security Deposit, Tenant
shall within ten (10) days after written request therefor deposit moneys with
Landlord sufficient to restore said Security Deposit to the full amount required
by this lease. Landlord shall, at the expiration or earlier termination of the
term hereof and after Tenant has vacated the Premises, return to Tenant (or, at
Landlord's option, to the last assignees, if any, of Tenant's interest herein),
that portion of the Security Deposit not used or applied by Landlord. Unless
otherwise expressly agreed in writing by Landlord, no part of the Security
Deposit shall be considered to be held in trust, to bear interest or other
increment for its use, or to be prepayment for any moneys to be paid by Tenant
under this Lease.
5. RENT
5.1 Effective as of the Commencement Date, Tenant shall pay to
Landlord Base Rent for the term at the rate of $12.00 per square foot per annum,
payable on a monthly basis. The monthly rent payments hereinabove provided shall
be paid promptly, in advance, on the first day of each and every month during
the term of this Lease, without demand and without offset or deduction, together
with such Additional Rent or charges required to be paid by Tenant as
hereinafter provided.
5.2 The Additional Rent to be paid by Tenant hereunder shall
be that amount and charges with respect thereto as hereinafter set forth in
Articles 6 and 18.3.
5.3 Any installment of Base Rent accruing hereunder, and any
other sum payable hereunder by Tenant to Landlord, which is not paid prior to
the fifth (5th) business day of any lease month, shall bear interest at the per
annum rate of two (2%) per cent over the prime rate published in New York City
by The Chase Manhattan Bank, N.A. applicable to its most favored and
creditworthy borrowers, as such prime rate shall be computed from the time when
the same shall respectively become due and payable until the same shall be paid,
which shall reflect daily rate changes as applicable.
5.4 Receipt and acceptance by Landlord of any Base Rent,
Additional Rent and any other charge with knowledge of Tenant's default in any
covenant or condition of this Lease shall not be deemed a waiver of such
default.
5.5 The first full month's payment of Base Rent and estimated
Additional Rent shall be made concurrently with the execution of this Lease,
with the Base Rent and estimated Additional Rent applicable to any partial month
to be paid upon Tenant's occupancy.
6. ADDITIONAL RENT. Additional Rent shall be paid by Tenant in
accordance with the provisions of this Article 6.
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6.1 Tenant shall pay Tenant's Percentage Share of all real
estate taxes, assessments, sewer rents, rates and charges, state and local
taxes, transit or any other governmental charge, general, special, ordinary or
extraordinary (collectively, "Taxes") (but not including income or franchise
taxes or any other taxes imposed upon or measured by the Landlord's income or
profits, except if in substitution for real estate taxes as hereinafter
provided), which may now or hereafter be levied or assessed against the Property
upon which the Building stands, and upon the Building and related improvements
attributable to any lease year ("lease year" being each twelve (12) calendar
month period during the term of this Lease).
6.2 (a) Tenant shall pay Tenant's Percentage Share of the
Operating Expenses (as hereinafter defined) applicable to the Building, which
are estimated at $4.50 per square foot for the 1998 calendar year.
(b) For the purpose of this Article 6.2, "Operating
Expenses" shall mean the following expenses paid or incurred by Landlord in
connection with the Building and the Property:
(A) Wages, salaries, fees and other
compensation and payments and payroll taxes and contributions to any
social security, unemployment insurance, welfare, pension or similar
fund and payments for other fringe benefits required by law or by union
agreement (or, if the employees or any of them are non-union, then
payments for benefits comparable to those generally required by union
agreement in first-class office buildings in the Mercer County area,
which are unionized) made to or on behalf of all employees of Landlord
performing services rendered in connection with the operation and
maintenance of the Building and the Property, including, without
limitation, elevator operators, elevator starters, window cleaners,
porters, janitors, maids miscellaneous handymen, watchmen, persons
engaged in patrolling and protecting the Building and the Property,
carpenters, engineers, firemen, mechanics, electricians, plumbers,
persons engaged in the operation and maintenance of the Building and
Property, Building superintendent and assistants, Building manager, and
clerical and administrative personnel, and costs of laundering,
cleaning and maintaining appropriate uniforms for such persons.
(B) Cleaning costs for the Building and the
Property, including the windows and sidewalks, all snow and rubbish
removal (including separate contracts therefor) and the costs of all
labor, supplies, equipment and materials incidental thereto.
(C) Premiums and other charges reasonably
incurred by Landlord with respect to insurance at reasonable levels
relating to the Building and the Property and the operation and
maintenance thereof, including, without limitation: fire and extended
coverage insurance, including windstorm, flood, hail, explosion, riot,
rioting attending a strike, civil commotion, aircraft, vehicle and
smoke insurance; public liability; elevator; workmen's compensation;
boiler and machinery; use and occupancy; health, accident and group
life insurance of all employees; and casualty rent insurance.
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(D) The cost of electricity, heat, water and
sewer and any and all other utility services used in connection with
the operation and maintenance of the Building and the Property
(provided that if electricity and other utility services are separately
metered by Tenant, Tenant shall make payments directly to the utility
provider, and such charges shall not be considered Operating Expenses
hereunder).
(E) Costs incurred for operation, service,
maintenance, inspection, repair and alteration of the Building, the
Property, and the heating, air-conditioning, ventilating, plumbing,
electrical and elevator systems of the Building (including any separate
contract therefor) and the costs of labor, materials, supplies and
equipment used in connection with all of the aforesaid items.
(F) Sales and excise taxes and the like upon
any of the expenses enumerated herein.
(G) Reasonable management fees of
unaffiliated managing agent for the Building, if any. If there shall be
no managing agent, or if the managing agent shall be a company
affiliated with Landlord, the management fees that would customarily be
charged for the management of the Building by an independent,
first-class agent in the Mercer County area.
(H) The cost of replacements for hand tools
and hand equipment used in the operation and maintenance of the
Building and the Property.
(I) The reasonable cost of repainting or
otherwise redecorating any part of the Building other than premises
demised or to be demised to tenants in the Building.
(J) Reasonable and ordinary decorations for
the lobby and other public portions of the Building.
(K) The cost of telephone service, postage,
office supplies, maintenance and repair of office equipment and similar
costs related to operation of the Building.
(L) The cost of licenses, permits and
similar fees and charges related to operation, repair and maintenance
of the Building.
(M) Auditing fees necessarily incurred in
connection with the maintenance and operation of the Building.
(N) All expenses associated with the
installation of any energy or cost saving devices.
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(O) All costs and expenses relating to the
Property and its maintenance, and operation and repair of any common
facilities including, but not limited to, snow removal, landscaping and
similar services.
(P) Any and all other expenditures of
Landlord in connection with the operation, repair or maintenance of the
Property or the Building which are properly expensed in accordance with
generally accepted accounting principles consistently applied with
respect to the operation, repair and maintenance of office buildings in
the Mercer County area.
In addition, if Landlord shall purchase any
item of capital equipment or make any capital expenditure relating to the
Building, then the costs for the same shall be included in Operating Expenses in
the year of installation amortized on a straight-line basis, over an appropriate
period, but not more than ten (10) years, with an interest factor equal to the
prime interest rate charged by The Chase Manhattan Bank, N.A., to its most
favored borrowers. If Landlord shall lease such item of capital equipment, then
the rentals or other operating costs paid pursuant to such leasing shall be
included in Operating Expenses for each year in which they are incurred.
Notwithstanding the foregoing, "Operating Expenses" shall not include
expenditures for any of the following:
(AA) The cost of any capital addition made
to the Building, including the cost to prepare space for occupancy by a
new tenant,
(BB) Repairs or other work occasioned by
fire, windstorm or other insured casualty or hazard, to the extent that
Landlord shall receive proceeds of such insurance,
(CC) Leasing commissions, advertising
expenses and other costs incurred in leasing or procuring new tenants
and legal expenses,
(DD) Repairs or rebuilding necessitated by
condemnation or casualty,
(EE) Depreciation and amortization of the
Building, including Landlord's debt servicing of any financing of the
Building and improvements for which the Property is security, other
than capital expenditures which under generally applied real estate
practice are expensed or regarded as deferred expenses,
(FF) The salaries and benefits of any
employee of Landlord in a position senior to Building Manager.
(GG) Any service, material or utility
supplied solely to Landlord and/or other tenants of the Building and
not supplied to or consumed by Tenant.
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Commencing with any partial month, and continuing for
each twelve (12) month lease year thereafter, Tenant shall be required to pay
Taxes and Operating Expenses as in this Article 6.2 required. Tenant agrees, in
addition to Base Rent, that it will pay monthly, during each twelve (12) month
lease year, 1/12th of the sum reasonably estimated by Landlord as being required
to be paid as Taxes and Operating Expenses for such subsequent applicable lease
year. Such monthly payment as required shall be made together with Tenant's
regular monthly payment of Base Rent. At the end of each lease year, there shall
be an adjustment between the Landlord and Tenant with respect to the aggregate
of the monthly Additional Rent paid for Taxes and Operating Expenses so as to
either require payment by Tenant to Landlord of any amount required to fund the
actual Taxes and Operating Expenses as determined if such prior payments are
less than such amount, or in lieu thereof Tenant shall be credited with an
overpayment in Taxes and Operating Expenses made for that lease year, which
shall be credited against the next rent payment due. Landlord shall furnish
Tenant with the computation of detailed Taxes and Operating Expenses for the
applicable lease year in the manner hereinabove provided, and any required
payment to Landlord or credit to Tenant, as applicable, shall be paid or made
within sixty (60) days after Landlord's demand and furnishing to Tenant the
required computation.
If the last year of the term of this Lease ends on any day
other than the last day of a calendar year, any payment due to Landlord or to
Tenant by reason of any Taxes or Operating Expenses shall be prorated and Tenant
shall pay any amount due to Landlord and Landlord shall pay any amount due
Tenant within thirty (30) days after being billed therefor. This covenant shall
survive the expiration or termination of this Lease.
6.3 For the purposes of this Lease, Tenant's Percentage Share
shall be 27.5%.
7. USE
7.1 The Leased Premises shall be used for office space,
laboratory and research and development use, and for no other purposes except
for such uses permitted by Landlord.
7.2 Tenant covenants and agrees that it will not use the
Leased Premises for any use which creates an extra hazard of fire or other
danger or casualty, or which will increase the rate which Landlord or other
tenants must pay to secure fire or liability insurance, or which will render the
Building or its improvements uninsurable.
8. REPAIRS AND MAINTENANCE
8.1 During the term of this Lease, Landlord, at its expense,
shall keep in good order, safe condition and repair, the structural parts of the
Building and common areas of which the Leased Premises are a part, including the
walls, roof, floor, foundation load bearing members, as well as all plumbing,
heating, ventilating, air-conditioning, mechanical, electrical, systems and
utilities and facilities serving the Leased Premises, except for repairs or
maintenance occasioned by the negligence or deliberate act of Tenant, or its
agents, servants, employees and invitees which shall be then repaired at the
cost and expense of Tenant.
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8.2 Landlord shall take good care of and maintain and repair
the lawns, shrubbery, driveway, sidewalks, entranceways, foyers, curbs and
parking area on the Property, and Landlord shall provide snow and rubbish
removal.
8.3 Tenant agrees to keep the Leased Premises in as good
repair as they are at the beginning of the term of this Lease, reasonable use
and wear thereof and damage by fire or other casualty excepted. Tenant further
agrees not to damage, overload, deface or commit waste of the Leased Premises.
Tenant shall be responsible for all damage of any kind or character to the
Leased Premises, including the windows, floors, walls and ceilings, caused by
Tenant or by anyone using or occupying the premises by, through or under Tenant.
Landlord shall repair the same as deemed necessary by Tenant or Landlord, and
Tenant agrees to pay the costs incurred therefor to Landlord upon demand.
Anything hereinabove contained to the contrary notwithstanding, it is expressly
understood and agreed that Tenant shall, at its sole cost and expense, be
responsible for the maintenance and replacement of any items installed in the
Building as leasehold improvements for Tenant. Landlord shall not be liable by
reason of any injury to or interference with Tenant's business arising from the
making of any repairs, replacements, additions or improvements in or to the
Leased Premises or the Building or to any appurtenances or equipment located
thereon. There shall be no abatement of rent because of such repairs,
replacements, alterations and additions, or because of any delay by Landlord in
making the same. Tenant shall give to Landlord prompt written notice of any
accidents to, or defects in any of the electrical, heating, mechanical,
ventilating and air conditioning systems and apparatus located in or on the
Leased Premises and structural parts of the Building.
9. LANDLORD'S SERVICES
9.1 Landlord shall furnish all utilities necessary to operate
the Building.
9.2 Landlord shall incur no liability whatsoever and it shall
not constitute a termination of this Lease or an eviction (constructive or
otherwise) hereunder should any utility service become unavailable from any
public utility company, public authority or any other person, firm or
corporation supplying such utility.
10. INABILITY TO PERFORM. In case Landlord is prevented or delayed in
furnishing any service as set forth herein or otherwise by reason of any cause
beyond Landlord's reasonable control, Landlord shall not be liable to Tenant
therefor, nor shall Tenant be entitled to any abatement or reduction in Base
Rent or Additional Rent by reason thereof, nor shall the same give rise to a
claim in Tenant's favor that such absence of Building services constitutes
actual or constructive, total or partial eviction or renders the Leased Premises
untenantable; provided that Tenant shall have the right to abate Base Rent and
Additional Rent if the services have not been restored within eight (8) business
days after the cessation of any such service, until the service is restored.
Landlord reserves the right to stop any service or utility system, when
necessary by reason of accident or emergency, or until necessary repairs have
been completed, provided, however, that in each instance of stoppage, Landlord
shall exercise reasonable diligence to eliminate the cause thereof. Except in
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case of emergency repairs, Landlord will give Tenant reasonable advance notice
of any contemplated stoppage and will use reasonable efforts to avoid
unnecessary inconvenience to Tenant by reason thereof. Landlord agrees, however,
that it will use all reasonable efforts to obtain restoration of services based
on the then existing circumstances.
11. INSURANCE. Tenant shall keep in force at its own expense
comprehensive general liability insurance (including a contractual liability
insurance endorsement) in companies reasonably acceptable to Landlord sufficient
to cover such indemnification and naming as insured Landlord, owner of the
Property, Landlord's managing agent, if any, and Tenant against claims for
"personal injury", including bodily injury and death, in amounts, not less than
THREE MILLION AND 00/100 ($3,000,000.00) DOLLARS (or such higher limits as may
be determined by Landlord). Such dollar value of coverage may be increased by
Landlord to reasonably reflect then economic conditions with respect to public
liability insurance coverage provided for similar tenants. Tenant will deposit
the policy or policies of such insurance, or certificates thereof, with
Landlord. Said policy or policies of insurance or certificates thereof shall
have attached thereto an endorsement that such policy shall not be cancelled
without at least ten (10) days prior written notice to Landlord or Landlord's
managing agent, if any, and that no act or omission of Tenant shall invalidate
the interest of Landlord under said insurance. Landlord and Tenant hereby
release the other from any and all liability or responsibility to the other or
anyone claiming through or under them by way of subrogation or otherwise for any
loss or damage to property covered by any insurance then in force, even if such
fire or other casualty shall have been caused by the fault or negligence of the
other party, or anyone for whom such party may be responsible, provided however,
that this release shall be applicable and in force and effect only to the extent
of and with respect to any loss or damage occurring during such time as the
policy or policies of insurance covering said loss shall contain a clause or
endorsement to the effect that this release shall not adversely affect or impair
said insurance or prejudice the right of the insured to recover thereunder.
12. LANDLORD'S ACCESS FOR FUTURE CONSTRUCTION. The Landlord reserves
the right to enter the Building, Property and Leased Premises in connection with
the construction and erection of any additions or improvements to the Building
and Property of which the Leased Premises are a part, provided that in the use
of such right the Landlord shall not unreasonably interfere with the use of the
parking areas and driveways or the Tenant's business.
13. FIXTURES
13.1 Tenant may install and remove Tenant's property,
equipment and fixtures in the Leased Premises during the term of the lease. If
Tenant moves out or is dispossessed, and fails to remove any such property or
equipment after the last day for which all Base Rent has been paid, then the
said property and equipment shall be deemed to be abandoned, and Tenant shall
reimburse to Landlord the reasonable cost of removal thereof from the Leased
Premises, including any cost of disposal thereof, less amounts received for
disposition thereof.
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13.2 Tenant shall repair, at its cost and expense, any damage
to the Leased Premises resulting from the removal of its property, equipment and
fixtures. However, if Tenant fails to do so, it shall be responsible to
reimburse the Landlord for the reasonable cost of compliance with the terms and
conditions of the within covenant.
13.3 All installation and removal of Tenant's fixtures,
property and equipment shall be done in accordance with all applicable laws and
ordinances and the rules and regulations of all governmental boards and bodies
having jurisdiction.
14. CHANGES IN OR ABOUT PREMISES. This Lease shall not be affected or
impaired by any change in any sidewalk, alleys or streets adjacent to or around
the Building, or in parking regulations of the Township of Ewing or any County
or State Agency or Office.
15. ASSIGNMENT AND SUBLETTING
15.1 Tenant shall not assign, mortgage or otherwise transfer
or encumber this Lease, nor sublet all or any part of the Leased Premises or
permit the same to be occupied or used by anyone other than Tenant or its
employees without Landlord's prior written consent, which consent shall not be
unreasonably withheld or delayed. It will not be unreasonable for Landlord to
withhold its consent if the reputation, financial responsibility, or business of
a proposed assignee or subtenant is reasonably unsatisfactory to Landlord, or if
Landlord reasonably deems such business to not be consistent with that of other
occupants of the Building, or if the intended use by the proposed assignee or
subtenant conflicts with any commitment made by Landlord to any other tenant in
the Building, which commitment Tenant has approved in writing, provided that:
(A) Tenant's request for consent shall be in writing
and contain the name, address, and description of the business of the proposed
assignee or subtenant, its most recent financial statement (if available) and
other evidence of financial responsibility, its intended use of the Leased
Premises, and the terms and conditions of the proposed assignment or subletting.
(B) Each assignee hereunder shall assume and be
deemed to have assumed this Lease and shall be and remain liable jointly and
severally with Tenant for all payments and for the due performance of all terms,
covenants, conditions and provisions herein contained on Tenant's part to be
observed and performed. No assignment shall be binding upon Landlord unless the
assignee shall deliver to Landlord an instrument in recordable form containing a
covenant of assumption by the assignee, but the failure or refusal of assignee
to execute the same shall not release assignee from its liability as set forth
herein.
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(C) If such consent to any subletting or assignment
hereunder shall be given:
(i) such consent to assign this Lease or to
sublet shall not release or discharge Tenant of or from any liability, whether
past, present or future, under this Lease and Tenant shall continue fully liable
under this Lease for any default under or in respect of any of the terms,
covenants, conditions, provisions or agreements of this Lease;
(ii) the assignee or subtenant or subtenants
shall agree to perform faithfully and be bound by all the terms, covenants,
conditions, provisions or agreements of this Lease to the extent of the space
sublet;
(iii) an executed copy of each sublease or
assignment agreement and agreement of assumption of performance by each of the
assignees or subtenants (limited to the extent of the space sublet) shall be
delivered to Landlord promptly upon execution;
(iv) (a) Tenant shall pay to the Landlord
monthly, one-half of any increment in rent received by Tenant per square foot
per annum over the Base Rent then in effect during the year of assignment or
subletting, after deducting therefrom the cost of real estate commissions
actually paid of re-renting, including real estate commissions actually paid,
architects and engineers fees, attorneys' fees, refitting costs and all other
costs directly paid by Tenant in connection with any such assignment or
subleasing. The required payment to Landlord shall be made monthly together with
the required monthly payments of Base Rent to be paid pursuant to Article 5; and
(b) if Tenant receives any consideration or value for such assignment or
subletting Landlord shall be paid one-half of any such consideration or value in
excess of the Base Rent to be paid by Tenant under this Lease [net of expenses
included in Article 15.1(C)(iv)(a)], within 10 days after receipt of the same by
Tenant, provided that in the event of a sublet the new consideration received by
Tenant be amortized over the term of the sublease to determine the extent to
which the consideration under the sublease shall exceed the Annual Basic Rent to
be paid by Tenant under this Lease. As a condition hereunder, Tenant warrants
and represents to Landlord that it will furnish to Landlord a copy of all
pertinent documents with respect to any such assignment or subletting so as to
establish Tenant's obligation to Landlord hereunder.
15.2 A Change in Control of Tenant shall be deemed to
constitute an assignment requiring Landlord's consent. For the purposes of this
Lease, a Change in Control shall be deemed to occur upon the transfer of 25% of
the direct or indirect voting control of Tenant.
15.3 Landlord's consent to any assignment or subleasing
hereunder shall not be required in the event of an assignment by Tenant to any
affiliate, subsidiary or entity or resultant entity, occasioned by merger,
consolidation or other corporate reorganization, providing that any such
Assignee assume in writing the obligation for payment and provided that Tenant
delivers such assignment and assumption agreement or sublease to Landlord. Any
such assignment or sublease shall not release Tenant of its primary obligations
hereunder. it is understood and agreed that Tenant shall continue to be fully
liable under the Lease in the same manner provided in Article 15.1(C)(i) above.
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16. CASUALTY
16.1 In case of any damage to the building on the property by
fire or other casualty occurring during the term of this Lease or previous
thereto, which renders the Leased Premises substantially untenantable in a
manner which cannot be repaired within one hundred eighty (180) days from the
happening of such damage, then the terms hereby created shall, at the option of
the Tenant, terminate from the date of such damage. Within thirty (30) days of
such casualty Landlord shall advise Tenant in writing whether or not it can
restore the premises within one hundred eighty (180) days from the date of such
casualty (hereinafter called the "Landlord Notice"). In the event the Tenant
elects to terminate the Lease for any reason which is due to the inability to
restore the same within the one hundred eighty (180) day period, Tenant shall
notify the Landlord, in writing, certified mail, return receipt requested, of
such a fact within thirty (30) days of receipt by Tenant of the Landlord Notice
and in such event Tenant shall immediately surrender the Leased Premises and
shall pay rent only to the time of such damage and Landlord may re-enter and
repossess the premises discharged from this Lease. In the event Landlord can
restore the premises within one hundred eighty (180) days if provided in
Landlord's notice, this Lease shall remain in full force and effect during the
period of Landlord's restoration, except that rent shall abate from date of
casualty while the repairs and restorations are being made, but the rent shall
recommence upon complete restoration of the Leased Premises and delivery of the
same by Landlord to Tenant, provided Landlord shall give Tenant ten (10)
business days' prior notice of the date of complete restoration. Landlord agrees
that it will undertake reconstruction and restoration of the damaged premises
with due diligence and reasonable speed and dispatch.
16.2 If the building shall be damaged, but the damage is
repairable by Landlord's estimate within one hundred eighty (180) days, Landlord
agrees to repair the same with reasonable promptness. In such event, the rent
accrued and accruing shall not abate, except for that portion of the Leased
Premises that has been rendered untenantable and as to that portion the rent
shall abate to the date of complete restoration and delivery of same by Landlord
to Tenant, provided Landlord shall give Tenant ten (10) business day's prior
notice of the date of complete restoration.
16.3 In connection with Landlord's restoration as hereinabove
referred to, in determining what constitutes reasonable promptness consideration
shall be given to delays caused by acts of God, strikes, and other causes of
Force Majeure beyond Landlord's control.
16.4 Tenant shall immediately notify Landlord in case of fire
or other damage to the premises.
16.5 Notwithstanding anything contained in 16.1 or 16.2 above,
if such repairs are for any reason not completed within one hundred eighty (180)
days from the date of casualty, then Tenant shall have the right to terminate
this Lease, and in such event of termination Landlord and Tenant shall thereupon
be released of liability one to the other, and this Lease shall be deemed null
and void.
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17. COMPLIANCE WITH LOCAL RULES AND REGULATIONS
17.1 Tenant covenants and agrees that upon and after
acceptance and occupancy of the Leased Premises, it will promptly comply with
all statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and Municipal Government and of any and all their departments and
bureaus (provided same are applicable to Tenant's occupancy or use of said
premises) or to the reasonable rules promulgated by Landlord in writing for the
correction, prevention and abatement of nuisances, violations or other
grievances, in, upon or connected with said premises during said term and
arising from the operations of Tenant or Tenant's particular use of the Leased
Premises, at Tenant's cost and expense, subject to the right of Tenant to
contest the decision by any such department or bureau as hereinafter mentioned.
In the event Tenant contests any such governmental decision, it shall indemnify,
defend and save Landlord harmless from any fine, penalty, costs and liability
imposed upon Landlord as a result of Tenant's failure so to comply. Tenant
covenants and agrees, at its own cost and expense, to comply with such
regulations or requests as may be required by the fire or liability insurance
carriers providing insurance for the Leased Premises, and will further comply
with such other requirements that may be promulgated by the Board of Fire
Underwriters or their equivalent in connection with the use and occupancy of the
Leased Premises by Tenant in the conduct of its business. Anything hereinabove
to the contrary notwithstanding, it is expressly understood and agreed that
Tenant shall not be required to make structural changes in the Building if the
same are required by governmental regulation, as the same may be applicable as a
matter of general application to the Leased Premises, provided that the Tenant
shall be required to make structural changes that may be required by
governmental regulation if directly attributable and resulting from Tenant's
particular manner of occupancy and use of the Building in the conduct of its
business.
17.2 If Tenant shall fail or neglect to comply with the
aforesaid statutes, ordinances, rules, orders, regulations and requirements or
any of them failure of Tenant to comply with the requirements of subparagraph
17.1 above shall be deemed an item of default for which Landlord shall have
recourse by termination of this Lease or exercise of any other rights reserved
to Landlord hereunder, in accordance with the terms and conditions of this
Lease.
18. DEFAULT, TERMINATION
18.1 If before or during the term of this Lease there shall
occur any of the following events ("Events of Default"):
(i) if Tenant shall make a general assignment for
the benefit of creditors, or shall admit in writing its inability to
pay its debts as they become due, or shall file a petition in
bankruptcy, or shall have an order for relief entered against it or be
adjudicated a bankrupt or insolvent, or shall file a petition seeking
any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future
statute, law
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or regulation, or shall file an answer admitting or not contesting the
material allegations of a petition against it in any such proceeding,
or shall seek or consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or any material part of its
assets; or
(ii) if, within 60 days after the commencement of any
proceeding against Tenant seeking any reorganization, arrangement,
composition readjustment, liquidation, dissolution or similar relief
under any present or future statute, law of regulation, such proceeding
shall not have been dismissed, or if, within 60 days after the
appointment without the consent or acquiescence of Tenant of any
trustee, receiver or liquidator of Tenant or of any material part of
its assets, such appointment shall not have been vacated; or
(iii) if the interest of Tenant in the Leased
Premises shall be sold under execution or other legal process; or
(iv) if Tenant shall fail to pay any installment of
Base Rent or Additional Rent for five (5) business days after written
notice that the same is due and unpaid; or
(v) if Tenant shall fail to perform or observe any
requirement, obligation, agreement, covenant or condition of this
Lease, other than the payment of any installment of Base Rent or
Additional Rent, and any such failure shall continue for 30 days after
Landlord gives Tenant notice thereof, or if such failure cannot be
remedied within 30 days, then for a reasonable time thereafter,
provided Tenant commences to remedy such failure within said 30 day
period and prosecutes the same to completion with diligence; then at
any time following any of such Events of Default, Landlord, without
waiving any other rights herein available to Landlord at law or in
equity, may either (1) give Tenant notice of termination of this Lease
or (2) without terminating this Lease, give Tenant notice of Landlord's
intention to re-enter and take possession of the Premises, with or
without legal process. The giving of either of such notices to Tenant
shall terminate Tenant's right to possession of the Premises under this
Lease without prejudice, however, to the rights of Landlord to exercise
all other available legal remedies and without discharging Tenant from
any of its liabilities hereunder.
18.2 In the event that Landlord elects to terminate Tenant's
right to possession of the Leased Premises under Article 18.1 following an Event
of Default, Landlord may re-enter and take possession of the Leased Premises,
with or without legal process, and Tenant hereby waives any claim for damages as
a result thereof, and Tenant shall be obligated to pay to Landlord as damages
upon demand, and Landlord shall be entitled to recover of and from Tenant, (i)
all Base Rent and Additional Rent payable to the date of termination of Tenant's
right to possession, plus (ii) the cost to Landlord of all reasonable legal and
other expenses and costs (including attorney's fees) incurred by Landlord in
obtaining possession of the Premises, in enforcing any provision of this Lease,
in preserving the Leased Premises during any period of vacancy, in making such
repairs as Landlord may reasonably deem necessary or advisable in operating and
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maintaining the Leased Premises, and in reletting the Leased Premises, including
all reasonable brokerage commissions therefore, plus (iii) in the event of
Landlord's giving notice of its intention to re-enter and take possession
without terminating this Lease, damages (payable in monthly installments, in
advance, on the first day of each calendar month following the giving of such
notice and continuing until the date fixed herein for the expiration of the term
of this Lease) in amounts equal to the Base Rent and Additional Rent herein
reserved based on the last Additional Rent paid for the month prior to default,
less the net amount of rent, if any, which may be collected and received by
Landlord from the Premises for and during the balance of the term hereof;
Landlord may relet the Premises, or any part or parts thereof (but in no event
shall Landlord be obligated to do so), for a term or terms which may at
Landlord's option be less than or exceed the period constituting the balance of
the Term hereof, and Landlord may grant concessions or charge a rental in excess
of that provided in this Lease (Tenant shall have no right to any excess).
Landlord shall undertake to use all reasonable efforts to mitigate Tenant's
damages.
If Landlord shall elect to re-enter and take possession
without terminating this Lease, Landlord shall have the right at any time
thereafter to terminate this Lease for such previous default, whereupon the
provisions of this subsection with respect to termination will thereafter apply.
18.3 Landlord may sue for and collect any amounts which may be
due pursuant to the provisions of Article 18.2 from time to time as Landlord may
elect, but no such suit shall bar or in any way prejudice the rights of Landlord
to enforce the collection of amounts due at any time or time thereafter by a
like or similar proceeding. All reasonable legal fees and expenses incurred by
Landlord in enforcing its rights under this Lease shall be deemed Additional
Rent and due and payable by Tenant upon demand. In the event Landlord brings any
summary action for dispossession of Tenant for failure to pay rent, Landlord's
attorney's fees and legal expenses shall be added to and included as part of the
rent due and owing by Tenant with respect to the periods in default.
18.4 No remedy conferred upon or reserved to Landlord in this
Lease is intended to be exclusive of any other remedy herein or by law provided,
but each shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute.
The receipt and acceptance by Landlord of rent with knowledge of the default by
Tenant in any of Tenant's obligations under this Lease shall not be deemed a
waiver by Landlord of such default. Nothing contained in this Lease shall limit
or prejudice the right of Landlord to prove for and obtain in proceedings for
bankruptcy or insolvency an amount equal to the maximum allowed by any statute
or rule of law in effect at the time when, and governing the proceedings in
which, the damages are to be provided, whether or not the amount be greater,
equal to, or less than the amount of the loss or damages referred to above.
18.5 No waiver by Landlord of any Event of Default or any
default by Tenant in any covenant, agreement or obligation under this Lease
shall operate to waive or affect any subsequent Event of Default or default in
any covenant, agreement or obligation hereunder nor shall any forbearance by
Landlord to enforce a right or remedy upon an Event of Default or any such
default be a waiver of any of its rights and remedies with respect to such or
any subsequent default or in any other manner operate to the prejudice of
Landlord.
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19. INSPECTION BY LANDLORD. The Tenant agrees that the Landlord's
agents, and other representatives, shall have the right to enter into and upon
the Leased Premises, or any part thereof, at reasonable hours upon reasonable
advance notice, except in emergencies, without unduly disturbing the operations
of the Tenant for the purposes of examining the same or for making such repairs
or alterations therein as may be necessary for the safety and preservation
thereof.
20. NOTICES. Except as provided elsewhere in this Lease, all notices
required hereunder shall be in writing and sent by certified mail return receipt
requested, and deemed to have been given or served three (3) days after the same
shall be deposited in the United States mails, as indicated by the Post Office
on the certified or registered mail receipt for such notice, postage prepaid.
All notices from Tenant to Landlord shall be directed to Landlord at the address
set forth in the heading of this Lease, attention: Mr. Guy Krone, President. All
notices from Landlord to Tenant shall be directed to Tenant at the address set
forth in the heading of this Lease, attention Mr. Sidney Rosenblatt, Executive
Vice President. Either party may designate by notice to the other a substitute
and additional address for notices, and thereafter notices shall be directed to
the substitute address.
21. NON-WAIVER. The failure of Landlord or Tenant to insist upon strict
performance of any of the covenants or conditions of this Lease or to exercise
any option herein conferred in any one or more instances shall not be construed
as a waiver or relinquishment of any such covenants, conditions or options, but
the same shall be and remain in full force and effect. If Landlord or Tenant
pursues any remedy granted by the terms of this Lease or the terms of applicable
law, it shall not be construed as a waiver or relinquishment of any other remedy
afforded thereby.
22. ALTERATIONS OR IMPROVEMENTS BY TENANT
22.1 Tenant shall not do any painting or decorating or erect
any partitions or make any alterations or improvements in the Leased Premises,
or do any boring in the ceilings, walls, or floors, without the prior written
consent of Landlord which shall not be unreasonably withheld or delayed,
provided Tenant shall have furnished to Landlord a plan and/or specifications
with respect to Tenant's proposed work. Unless objected to by Landlord in
writing, such work may be performed by Tenant or under the direction of Tenant,
at its cost. Nothing herein contained shall be construed to permit Tenant at any
time to make any structural modifications to the Leased Premises or any
alterations or modifications to the Leased Premises or any alterations or
modifications to existing Building systems in the Leased Premises. Tenant hereby
agrees that all alterations and improvements made in, to or on the Leased
Premises shall, unless otherwise provided by written agreement, be the property
of Landlord and shall remain upon and be surrendered with the Premises. Landlord
shall have the right to request as a condition of its consent that Tenant
restore the premises to its original condition at the expiration or termination
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of the term. In the event such requested installation is standard or customary
for comparable office use, Landlord shall not unreasonably withhold its consent
to such improvements not being removed at the expiration or earlier termination
of the term. Such request shall be made simultaneously with Landlord's written
approval required hereunder.
22.2 Nothing herein contained shall be construed as a consent
on the part of Landlord to subject the estate of Landlord to liability under the
Mechanic's Lien Law of the State of New Jersey, it being expressly understood
that Landlord's estate shall not be subject to such liability. Failure of Tenant
to remove or bond any mechanic's lien occasioned by Tenant's actions within
thirty (30) days after notice shall be deemed a default pursuant to the terms
and conditions of this Lease. In addition, Tenant shall indemnify, defend and
save Landlord harmless from any damage occasioned by such failure to remove such
mechanic's lien.
23. NON-LIABILITY OF LANDLORD
23.1 It is understood and agreed that Landlord, in its
capacity as Landlord of the Building in which the Leased Premises are located,
or any of its partners if Landlord is a partnership, shall not be liable to
Tenant, Tenant's agents, employees, contractors, invitees or any other occupant
of the Leased Premises for any damage to property or for any inconvenience or
annoyance to Tenant or any other occupant of the Leased Premises or interruption
of Tenant's or such other occupant's business, arising out of or attributable to
(i) the design and construction of the Leased Premises and the building of which
the Leased Premises are a part; (ii) any maintenance, repairs, replacements,
additions, alterations, substitutions and installations made to the Leased
Premises and the Building of which the Leased Premises are a part; and (iii) any
cause or happening whatsoever, including negligence by Landlord and Landlord's
agents, servants and employees with respect to any of the events or occurrences
referred to in subdivisions (i) and (ii), or otherwise. The foregoing covenant
is an express inducement to Landlord to enter into the within lease and Tenant
acknowledges that it understands the scope and consequences of Landlord's
exculpation as herein provided. Landlord agrees that it will assign without
recourse any warranties or guaranties with respect to installations or
improvements for which Tenant would be responsible to repair, replace or
maintain in accordance with this Lease.
23.2 Anything hereinabove contained to the contrary
notwithstanding, Tenant in all events shall assume all risk of damage or loss to
its property, equipment and fixtures occurring in our about the Leased Premises.
24. CONDEMNATION
24.1 If the whole or part of the Leased Premises shall be
acquired by Eminent Domain for any public or quasi public use or purpose so that
the Leased Premises cannot be used for its intended leased purposes, or if the
parking areas shall be taken by Eminent Domain and Landlord shall not
substantially replace such parking areas, then, in that event, the term of this
Lease shall cease and terminate from the date that possession of the Leased
Premises is taken by the condemning authority in the Eminent Domain proceeding,
or as the result of the delivery of a deed in lieu of condemnation. Tenant shall
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have no claim against Landlord for the value of any unexpired term of this
Lease. No part of any award made to Landlord shall belong to Tenant, nor shall
Tenant make any claim against the condemning authority for the value of its
leasehold if such claim shall reduce Landlord's award. Anything hereinabove
contained to the contrary notwithstanding, it is expressly understood and agreed
that without affecting Landlord's award as hereinabove referred to, Tenant may
make such independent claim as the law may allow with respect to Tenant's
leasehold improvements, if any, moving expenses, trade fixtures and equipment.
24.2 To the extent that there shall be partial condemnation
and Tenant shall remain in possession in part of the premises uncondemned, there
shall be an abatement of Base Rent and Additional Rent equitably apportioned
based on the percentage of the premises retained by Tenant under the then
circumstances. Landlord agrees that it will undertake to restore so much of the
Building and its improvements as may be economically and architecturally
practicable and feasible. In the event of any dispute as to the apportionment,
the same shall be submitted to the American Arbitration Association for binding
determination at the equal administrative cost of Landlord and Tenant.
25. INCREASE OF INSURANCE RATES. If the rate which Landlord must pay to
secure fire insurance shall be increased because of any change in occupancy or
use of the premises by Tenant, or because of Tenant's non-compliance with the
rules, regulations or requests of the fire insurance carrier, then such increase
shall be paid by Tenant to the Landlord as Additional Rent.
26. FIRE INSURANCE COVERAGE
26.1 Tenant, at its own cost and expense, shall insure its own
fixtures, equipment and contents, it being expressly understood and agreed that
the same is not the responsibility of Landlord nor shall it be liable therefor.
26.2 Landlord shall cause each fire insurance policy carried
by it insuring the Leased Premises against loss by fire or any other casualties
covered by its all-risks insurance, including public liability insurance, to be
written in such a manner so as to provide that the insurer waives all right of
recovery by way of subrogation against Tenant in connection with any loss or
damage covered by the policy. Tenant will cause each insurance policy carried by
it insuring the contents thereof, including trade fixtures and merchandise,
against loss by fire or any of the casualties covered by its all-risks
insurance, including public liability insurance, to be written in such a manner
so as to provide that the insurer waives all rights of recovery by way of
subrogation against Landlord in connection with any loss or damage covered by
the policy. Neither party hereto shall be liable to the other for any loss or
damage caused by fire or any of the casualties covered by the insurance policies
maintained by the other party.
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27. INDEMNITY. Anything in this Lease to the contrary notwithstanding,
and without limiting Tenant's obligation to provide insurance pursuant to
Article 26 hereunder, the Tenant covenants and agrees that it will indemnify,
defend and save harmless Landlord against and from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses, including without
limitation reasonable attorneys' fees, which may be imposed upon or incurred by
Landlord by reason of any of the following occurring during the term of this
Lease:
(i) Any negligence on the part of Tenant or
any of its agents, contractors, servants, employees, licensees or
invitees;
(ii) Any failure on the part of Tenant to
perform or comply with any of the covenants, agreements, terms or
conditions contained in this Lease on its part to be performed or
complied with.
Landlord shall promptly notify Tenant of any such claim asserted against it and
shall promptly send to Tenant copies of all papers or legal process served upon
it in connection with any action or proceeding brought against Landlord by
reason of any such claim.
28. MUTUAL WAIVER OF SUBROGATION. Any provision of this Lease to the
contrary notwithstanding, Landlord and Tenant hereby release the other from any
and all liability or responsibility to the other or anyone claiming through or
under them by way of subrogation or otherwise (a) from any and all liability for
any loss or damage to the property of the releasing party, (b) for any loss or
damage that may result, directly or indirectly, from the loss or damage to such
property (including rental value and business interruption) and (c) from legal
liability for any loss or damage to property (no matter who the owner of the
property may be), all to the extent that the releasing party's loss or damage is
insured or, if not insured, was insurable under commercially available "all
risk" property insurance policies, including additional coverage typically
obtained by owners and tenants of comparable office buildings in the vicinity of
the Building, even if such loss or damage or legal liability shall be caused by
or result from the fault or negligence of the other party or anyone for whom
such party may be responsible and even if the releasing party is self-insured in
whole or in part or the amount of the releasing party's insurance is inadequate
to cover the loss or damage or legal liability. It is the intention of the
parties that Landlord and Tenant shall look solely to their respective insurance
carriers for recovery against any such property loss or damage or legal
liability, without such insurance carriers having any rights of subrogation
against the other party.
29. FORCE MAJEURE. Except for the obligation of the Tenant to pay rent
and other charges as in this Lease provided, the period of time during which the
Landlord or Tenant is prevented from performing any other act required to be
performed under this Lease by reason of fire, catastrophe, strikes, lockouts,
civil commotion, acts of God or the public enemy, government prohibitions or
preemptions, embargoes, inability to obtain material or labor by reason of
governmental regulations or prohibitions, the act or default of the other party,
or other events beyond the reasonable control of Landlord or Tenant, as the case
may be, shall be added to the time for performance of such act.
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30. MORTGAGE PRIORITY. This Lease and the estate, interest and rights
hereby created are subordinate to any mortgage now or hereafter placed upon the
Property, the Building or any estate or interest therein, including, without
limitation, any mortgage on any leasehold estate, and to all renewals,
modifications, consolidations, replacements and extensions of same as well as
any substitutions therefor, provided, however, that any holder of such lien or
mortgage agrees not to disturb the use and occupancy of the Leased Premises in
accordance with the terms of this Lease Agreement upon any foreclosure. Tenant
agrees that in the event any person, firm, corporation or other entity acquires
the right to possession of the Property and the Building, including any
mortgagee or holder of any estate or interest having priority over this Lease,
Tenant shall, if requested by such person, firm, corporation or other entity,
attorn to and become the tenant of such person, firm, corporation or other
entity, upon the same terms and conditions as are set forth herein for the
balance of the lease term. Notwithstanding the foregoing, any mortgagee may, at
any time, subordinate its mortgage to this Lease, without Tenant's consent, by
notice in writing to Tenant, and thereupon this Lease shall be deemed prior to
such mortgage without regard to their respective dates of execution and
delivery, and in that event, such mortgagee shall have the same rights with
respect to this Lease as though it had been executed prior to the execution and
delivery of the mortgage. Tenant, if requested by Landlord, shall execute any
such instruments in recordable form as may be reasonably required by Landlord in
order to confirm or effect the subordination of this Lease and the attornment of
Tenant to future landlords in accordance with the terms of this Lease.
31. SURRENDER BY TENANT
31.1 Tenant will surrender possession of the Leased Premises
and remove all goods and chattels and other personal property in the possession
of Tenant, by whomsoever owned, at the end of the term of this Lease, or at such
other time as Landlord may be entitled to re-enter and take possession of the
Leased Premises pursuant to any provision of this Lease, and leave the Premises
in as good order and condition as they were at the beginning of the term,
ordinary wear and tear, depreciation and Force Majeure excepted. In default of
such surrender of possession and removal of goods and chattels at the time
aforesaid, Tenant will pay to Landlord double the Base Rent and 1.0 times
Additional Rent reserved by the terms of this Lease for such period as Tenant
either holds over possession of the Leased Premises or allows its goods and
chattels or other personal property in its possession at such time to remain in
the Leased Premises. If Tenant holds over for any period subsequent to the
expiration of six (6) months after the expiration or earlier termination of the
lease term, in addition to double the Base Rent and 1.0 times the Additional
Rent to be paid during each month of holdover Tenant shall be obligated for any
and all statutory penalties and all other damages which Landlord shall suffer by
reason of Tenant holding over during such subsequent period in violation of the
terms and provisions of this Lease, including all reasonable claims for damages
made by any succeeding tenant or purchaser of the Leased Premises against
Landlord in which may be founded upon delay by Landlord in giving possession of
the Leased Premises to such succeeding tenant or purchaser, to the extent that
such damages are occasioned by the unlawful holding over of Tenant. The
foregoing covenant as to Tenant's holdover obligation shall not be deemed to
create any month-to-month tenancy or to continue the Landlord-Tenant
relationship, except that any occupancy by Tenant during the holdover period
shall require strict compliance with the terms and conditions of the Lease.
Landlord reserves its rights to take such action as such may deem appropriate to
obtain possession of the Leased Premises.
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31.2 In the event Tenant fails to remove all goods and
chattels and other personal property in possession of Tenant, by whomsoever
owned, at the end of the term of this Lease, or at such other time as Landlord
may be entitled to re-enter and take possession of the Leased Premises pursuant
to any provision of this Lease, Tenant hereby irrevocably makes, constitutes and
appoints Landlord as the agent and attorney-in-fact of Tenant to remove all
goods and chattels and other personal property, by whosoever owned, from the
Leased Premises to a reasonably safe place of storage, such moving and storage
to be at the sole cost and expense of Tenant, and Tenant covenants and agrees to
reimburse and pay to Landlord all expenses which landlord incurs for the removal
and storage of all such goods and chattels. Alternatively, at the option of
Landlord, Tenant shall be deemed to have abandoned such goods, chattels and
other personal property and the same shall become the property of Landlord.
31.3 No act or thing done by Landlord shall be deemed an
acceptance of the surrender of the Leased Premises unless Landlord shall execute
a written release of Tenant. Tenant's liability hereunder shall not be
terminated by the execution by Landlord of a new lease of the Leased Premises.
32. SIGNS AND ADVERTISING
32.1 No sign, fixture, advertisement or notice shall be
displayed, inscribed, painted or affixed by Tenant to any part of the outside or
inside of the Leased Premises or the Building without the prior written consent
of Landlord, which consent shall not be unreasonably withheld or delayed, and
then only of such color, size, style and material as shall be first specified in
writing by Landlord and in conformance with city and county sign ordinances and
other standards applicable to the Building. No showcase shall be placed in front
or in the lobbies or corridors of the Building and Landlord reserves the right
to remove all showcases so placed and all signs other than those above provided
for, without notice and at the expense of Tenant. Tenant agrees and understands
that no signage of any type shall be visible from the exterior of the Building
without Landlord's prior written consent.
32.2 The mounting and dismounting procedures for all signage
must have the prior written approval of Landlord, not to be unreasonably
withheld or delayed. Tenant shall provide drawings for any requested signage.
Tenant agrees to repair any damage to any surface due to the improper
dismounting of any signage. Tenant shall not permit anything to be attached to
any exterior window or window frame.
32.3 All door and directory signage is to be in conformance
with all applicable tax rules and regulations of Princeton Crossroads and is to
be purchased at Tenant's sole expense. Tenant is permitted only one (1) door
(above the entrance) sign and one (1) directory sign without the prior written
consent of Landlord.
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33. ESTOPPEL CERTIFICATE. Tenant agrees, from time to time as may be
requested by Landlord, to execute, acknowledge and deliver to Landlord all or
any of the following: an estoppel letter certifying to such party as Landlord
reasonably may designate, including any mortgagee, whether this Lease is in full
force and effect and has not been amended, modified or superseded, that Tenant
has accepted the Leased Premises and is now in possession thereof, and whether
Tenant has any defense, offsets or counterclaims hereunder or otherwise against
Landlord with respect to this Lease.
34. [INTENTIONALLY OMITTED]
35. [INTENTIONALLY OMITTED]
36. LANDLORD'S RIGHT OF ENTRY AND ALTERATIONS. Landlord, or its agents,
shall have the right at reasonable times to enter upon the Leased Premises upon
reasonable advance notice, except in emergencies, to examine the same, to clean
windows, or to make such repairs, alterations or improvement as are necessary or
proper, and, during such operations, temporarily may close entrances, doors,
corridors, elevators and other facilities, all without any liability to Tenant
by reason of interference, inconvenience or annoyance; provided Landlord uses
its best efforts to minimize such interference, inconvenience or annoyance;
provided, however, that if such work should materially reduce the area rented by
Tenant, the rent paid by Tenant shall be proportionately abated during such time
period, and further provided, that such work will be done in such a manner as to
cause the least possible interference, inconvenience and annoyance to Tenant.
However, this Article shall not be deemed as imposing any duty on Landlord to
undertake any of the acts specified herein.
37. LANDLORD'S REMEDIES AND EXPENSES
37.1 All rights and remedies of Landlord and Tenant herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law. For the purposes of any suit brought or based hereon, this Lease
shall be construed to be a divisible contract, to the end that successive
actions may be maintained on this Lease on successive periodic sums which mature
hereunder. Notwithstanding the foregoing, Landlord and Tenant agree that all
cognizable claims shall be filed in one action.
37.2 Tenant shall pay, upon demand, all of Landlord's costs,
charges and expenses, including the reasonable fees of counsel, agents and
others retained by Landlord, incurred in enforcing Tenant's obligation hereunder
and in administering any requests for approval of assignments or sublettings
pursuant to the provisions hereof.
38. LANDLORD'S RESERVED RIGHTS. Landlord reserves the following rights:
(a) During the last thirty (30) days of the term of this
Lease, if during or prior to that time Tenant completely vacates the premises,
to decorate, remodel, repair, alter or otherwise prepare the premises for
re-occupancy, provided Landlord accepts all liability and notifies Tenant in
advance.
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(b) To show the premises to prospective tenants or brokers
during the last year of the term of this Lease, and to prospective purchasers at
all reasonable times, provided prior notice to Tenant in each case is given and
Tenant's use and occupancy of the premises shall not be materially
inconvenienced by any such action of Landlord. Landlord may enter upon the
premises and may exercise any or all of the foregoing rights hereby reserved
without being deemed guilty of an eviction or disturbance of Tenant's use or
possession and without being liable in any manner to Tenant. Notwithstanding the
foregoing, Landlord agrees that it shall arrange said visitation only by
appointment with Tenant.
39. RULES AND REGULATIONS
39.1 Tenant and its employees and agents shall faithfully
observe and comply with such reasonable rules and regulations as may be
promulgated by Landlord, and such reasonable changes therein (whether by
modification, elimination or addition) as Landlord at any time or times
hereafter may make and communicate in writing to Tenant, which do not
unreasonably affect the conduct of Tenant's business in the Leased Premises;
provided however, that in case of any conflict or inconsistency between the
provisions of this Lease and any rules and regulations, the provisions of this
Lease shall control.
39.2 Nothing contained in this Lease shall be construed to
impose upon Landlord any duty or obligation to Tenant to enforce the rules and
regulations or the terms covenants or conditions in any other lease, as against
any other tenant, and Landlord shall not be liable to Tenant for violation of
the same by any other tenant or its employees, agents or visitors.
40. WAIVERS. No delay or forbearance by Landlord in exercising any
right or remedy hereunder or in undertaking or performing any act or matter
which is not expressly required to be undertaken by Landlord shall be construed,
respectively, to be a waiver of Landlord's rights or to represent any agreement
by Landlord to undertake or perform such act or matter thereafter.
41. SEVERABILITY. Each covenant and agreement in this Lease shall for
all purposes be construed to be a separate and independent covenant or
agreement. If any provision in this Lease or the application thereof shall to
any extent be invalid, illegal or otherwise unenforceable, the remainder of this
Lease, and the application of such provision, other than as invalid, illegal or
unenforceable, shall not be affected thereby; and such provisions in this Lease
shall be valid and enforceable to the fullest extent permitted by law.
42. QUIET ENJOYMENT. Landlord covenants and represents that the
Landlord is the owner of the premises herein leased and has the right and
authority to enter into, execute and deliver this Lease, and does further
covenant that Tenant on paying the rent and performing the conditions and
covenants herein contained, shall and may peaceably and quietly have, hold and
enjoy the Leased Premises for the term aforementioned.
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43. LEASE CONSTRUCTION. This Lease shall be construed pursuant to the
laws of the State of New Jersey.
44. BINDING EFFECT. The terms, covenants and conditions of this Lease
shall be binding upon and inure to the benefit of each of the parties hereto,
and their respective heirs, successors, executors, administrators and assigns.
45. DEFINITIONS. The neuter gender, when used herein and in the
acknowledgement hereafter set forth, shall include all persons, firms and
corporations, and words used in the singular shall include words in the plural
where the text of the instrument so requires.
46. PARAGRAPH HEADING. The paragraph headings herein are inserted only
as a matter of convenience and for reference, and in no way to define, limit or
describe the scope of this Lease nor the intent of any provision hereof.
47. EXECUTION AND DELIVERY. These documents are submitted to Tenant for
consideration purposes and shall not be binding on Landlord until fully executed
in all parts by Landlord and Tenant and exchanged.
48. REGULATION OF COMMON FACILITIES. The common facilities shall at all
times be subject to the exclusive control and management of Landlord. Landlord
shall have the right to establish, modify and enforce reasonable and
non-discriminatory rules and regulations with respect to common facilities; to
change the areas, locations and arrangements of parking areas and other common
facilities; provided the total number of parking spaces allocated to Tenant
shall not be reduced, to enter into, modify and terminate easement and other
agreements pertaining to the use and maintenance of the parking areas and other
common facilities; to restrict parking by tenants, their officers, agents, and
employees to employee parking areas; to construct surface or elevated parking
areas and facilities to establish and change the level of parking surfaces; to
close all or any portion of the parking areas or other common facilities to such
extent as may, in the opinion of Landlord, be necessary to prevent a dedication
thereof or the accrual of any rights to any person or to the public therein; to
close temporarily any or all portions of the said areas or facilities; to
discourage non-tenant parking and to do and perform such other acts in and to
said areas and improvements as, in the exercise of good business judgment,
Landlord shall determine to be advisable with a view to the improvement of the
convenience and use thereof by tenants, their officers, agents, employees and
customers. The foregoing rights of Landlord hereto are subject to the terms and
conditions of Article 10 as applicable.
49. PERFORMANCE BY TENANT. Tenant covenants and agrees to perform all
obligations herein expressed on its part to be performed, and to promptly, upon
receipt of written notice specifying action desired by Landlord in connection
with any such obligation (excluding the covenant to pay rent), comply with such
notice. If Tenant shall not commence and proceed diligently to comply with such
notice to the satisfaction of Landlord within thirty (30) days after delivery
thereof, except in the event of an emergency, Landlord may enter upon the
Premises and do the things specified in said notice. Landlord shall have no
liability to Tenant for any loss or damages resulting in any way from such
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action by Landlord, and Tenant agrees to pay promptly upon demand any expense
incurred by Landlord in taking such action. Landlord reserves the right to enter
into the Premises at any time due to any emergency situation which may endanger
the Leased Premises or the building of which the Premises are a part.
50. NO MODIFICATION. This writing is intended by the parties as a final
expression of their agreement and as a complete and exclusive statement of the
terms thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No course of prior dealings between the
parties or their affiliates shall be relevant or admissible to supplement,
explain, or vary any other terms of this Lease. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevant or admissible to determine
the meaning of any of the terms of this Lease. No representations,
understandings, or agreements have been made or relied upon in the making of
this Lease other than those specifically set forth herein. This Lease can only
be modified by a writing signed by all of the parties hereto or their duly
authorized agents.
51. COVENANTS OF FURTHER ASSURANCES. If, in connection with obtaining
financing or refinancing of the Property, Building and improvements, a lender
shall request reasonable modifications in this Lease as a condition to such
financing, Tenant will not unreasonably withhold, delay or defer its written
consent thereto, provided that such modifications do not in Tenant's reasonable
judgment increase the obligations of Tenant hereunder or adversely affect the
leasehold interest hereby created or Tenant's use and enjoyment of the Premises
in any material respect.
52. BROKERAGE. The parties mutually represent to each other that
Fennelley Associates, Inc., is the sole broker who negotiated and consummated
the within transaction, and that neither party dealt with any other broker in
connection with this Lease, it being understood and agreed that Landlord shall
be responsible, at its sole cost and expense, to pay the real estate brokerage
in connection with this Lease transaction. The brokerage fee shall be 5% of the
Basic Rent payable for the first thirty-six months of this Lease, and shall be
payable promptly after occupancy by Tenant of the Leased Premises. Landlord
agrees to indemnify, defend and save harmless the broker in connection with the
claims of any other real estate brokers claiming commissions in connection with
the within transaction and claiming authority from Landlord. Tenant agrees to
indemnify, defend and save harmless the broker in connection with the claims of
any other real estate brokers claiming commissions in connection with the within
transaction and claiming authority from Tenant.
53. MORTGAGEE NOTICE CLAUSE. Tenant agrees to give any Mortgage and/or
Trust Deed Holders, by Registered Mail, a copy of any Notice of Default served
upon Landlord, at Landlord's expense, 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 Mortgagees and/or Trust Deed
Holders. Tenant further agrees that if Landlord shall have failed to cure such
default within the time provided for in this Lease, then the Mortgagees and/or
Trust Deed Holders shall have an additional thirty (3) days within which to cure
such default or if such default cannot be cured within that time, then such
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additional time as may be necessary if within such thirty (30) days, any
Mortgagee and/or Trust Deed Holder 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), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
54. RIGHT OF FIRST REFUSAL. In the event Landlord desires to lease any
portion (the "Additional Space") of the Building to another tenant, Landlord
shall notify Tenant of the term and conditions (including the location of the
Additional Space, the proposed rent rate and any other material terms and
conditions) of such proposed rental. Tenant shall have a period of thirty (30)
days from the date of receipt of such notice to enter into an Addendum to this
Lease with Landlord for the Additional Space incorporating such terms and
conditions. If an Addendum is not executed within such 30 day period (other than
through the fault or delay of Landlord), or if Tenant notifies Landlord that it
does not wish to lease the Additional Space, then Landlord may lease the
Additional Space to another proposed tenant, and shall have no further
obligation to offer the Additional Space to Tenant.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals
or caused these presents to be signed by its proper corporate officers and
caused its proper corporate seal to be hereunto affixed, the day and year first
above written.
WITNESS: GESIPA REAL ESTATE PARTNERS
/s/ Allene Romano By: /s/ William S. Schuler
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ATTEST: UNIVERSAL DISPLAY CORPORATION
By: /s/ Sidney D. Rosenblatt
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