EXHIBIT 10.10
STRATEGIC BUSINESS AND TECHNOLOGY SOLUTIONS, LLC
SUBLEASE TO
CYBEAR, INC.
THIS AGREEMENT is made as of the 1st day of October, 1998 between
Strategic Business and Technology Solutions, LLC having an address at c/o Huttle
Profita LLC, 300 Glenpointe Centre East, Teaneck, NJ 07666 (hereinafter referred
to as "Sublessor") and CyBear, Inc., a Delaware Corporation having an address at
5000 Blue Lake Drive, Boca Raton, Florida 33431 (hereinafter referred to as
"Subtenant").
WHEREAS, on or about October 15, 1998 the Sublessor entered into a
lease with Samsung America, Inc. and Samsung Semiconductor, Inc. (hereinafter
referred to as "Lessor") for the premises known as the Seventh Floor of 105
Challenger Road, Ridgefield Park, NJ 07660 (the "Premises") which lease expires
on August 31, 2003 (the "Original Lease"); and
WHEREAS, the Subtenant desires to let and lease a portion of the
Premises from the Sublessor.
NOW, THEREFORE, the parties hereto agree as follows:
1. DEMISE OF TERM. Subject to the provisions of this Sublease,
Sublessor does hereby sublease to Subtenant approximately 4,000 square feet of
the Premises located as shown on Exhibit A hereto (the "Space"). The term of the
Sublease will commence as of November 1, 1998 and shall terminate on October 31,
2003. However, if the Original Lease is terminated for any reason, this Sublease
shall also terminate as of the same date.
2. BASIC RENT. Subtenant agrees to pay Sublessor annual base rent for
the Space equal to $120,000.00 per year, payable by the Subtenant in equal
monthly installments of $10,000.00 (the "Basic Rent") on the first day of each
month during the term of the Sublease. The Subtenant also agrees to pay, as
additional rent, the sum of $416.67 per month on the first day of every month
for electricity consumed by the Subtenant. In the event the Sublessor is
required to pay more than the sum of $1.25 per square foot annually for
electrical consumption at the Premises, then the monthly charge to the Subtenant
for electrical consumption shall be increased proportionately.
3. NO DEFAULT. Sublessor warrants and represents that it is not in
material default of any of the terms or covenants of the Original Lease; that
all rent due under the Original Lease has been paid to date; and that the
Original Lease is in full force and effect.
4. USE OF SPACE. The Subtenant shall use and occupy the space for
general office and administrative purposes only, and for no other use or
purpose. Sublessee shall use the Premises in a careful, lawful, safe and proper
manner at all times, and agrees to cooperate with the Sublessor and any other
subtenants of the Premises so that all parties can use and enjoy the Premises.
5. COMMON AREAS. The Subtenant and its business invitees shall be
entitled to the use of the reception area at the entrance to the Premises, the
lavatory facilities located in the Premises, the four conference rooms near the
entrance to the Premises, as
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well as any common hallways required for ingress or egress to the Space. The
Subtenant acknowledges that the Sublessor as well as other subtenants will also
utilize the reception area, lavatories and conference rooms as well as common
hallways (which may be located within the Space) in order to gain ingress and
egress to other portions of the Premises. Subtenant shall also have the right to
the use of the common areas of 105 Challenger Road, Ridgefield Park, New Jersey
(the Building) to the same extent as the Sublessor under the terms of the
Original Lease.
6. ASSIGNMENT OR SUBLETTING. The Subtenant acknowledges that the
Sublessor has entered into this Sublease only on account of the Strategic
relationship of the Sublessor to the Subtenant, and therefore the Subtenant
acknowledges that under no circumstances shall it be allowed to assign this
Sublease or sublet any of the Space without the written consent of the Sublessor
which may be either granted or withheld in the sole and absolute discretion of
the Sublessor. The Sublessor shall not be required to act reasonably in
considering whether or not to approve a proposed assignment or sublease, and may
arbitrarily withhold approval to a proposed assignment or sublease. Subtenant
also acknowledges that the approval of the Lessor shall also be required as a
condition to any assignment or sublease.
7. CONDITION OF SPACE. The Subtenant accepts the Space in "as is"
condition, and acknowledges that Sublessor shall not be required to make any
improvements or perform any repairs to the Space. Subtenant agrees to be solely
responsible to obtain any and
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all permits or approvals required for the Subtenant to occupy the Space.
8. BROKERS. The Sublessor and the Subtenant warrant and represent to
each other that no broker or other intermediary was involved in bringing about
this transaction, and each agrees to indemnify and hold the other harmless from
any claims for a brokerage commission incurred on account of the actions of the
other party.
9. ASSUMPTION OF OBLIGATIONS. Subtenant agrees to assume and discharge
toward the Sublessor and Lessor, all of the covenants and obligations set forth
in this paragraph 9 which the Sublessor has undertaken to the Lessor in the
Original Lease, as concerns the Subtenant's occupancy of the Space. The Lessor
and the Sublessor shall have the right to enforce against the Subtenant all of
the rights and remedies which the Lessor has against the Sublessor as set forth
in this paragraph 9 specifically including, but not limited to, all of the same
rights and remedies which the Lessor would be entitled to assert against the
Sublessor in the event of a breach by the Sublessor:
A. USE AND OCCUPANCY. Lessee shall use and occupy the Demised
Premises for general office and administrative purposes and for no other
purpose. Lessee shall use the Demised Premises in a careful, safe and proper
manner.
Lessee agrees to indemnify and save harmless Lessor from and
against (i) all claims of whatever nature against Lessor arising from any act,
omission, or negligence of Lessee, its contractors, licensees, agents, servants,
employees, invitees,or visitors, including any claims arising from any act,
omission or negligence of Lessee, (ii) all claims against Lessor arising from
any accident, injury or damage whatsoever caused to any person or to the
property of any person and occurring during the Term in or about the Demised
Premises provided same is not caused by the
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omission or negligence of Lessor, (iii) all claims against Lessor arising from
any accident, injury or damage occurring outside of the Demised Premises or
anywhere within or about Lessor's Building where such accident, injury or damage
results or is claimed to have resulted from an act or omission of Lessee or
Lessee's agents, employees, invitees or visitors, including any claims arising
from any act, omission, or negligence of Lessee, and (iv) any breach, violation
or non-performance of any covenant, condition or agreement in this Lease set
forth and contained on the part of Lessee to be fulfilled, kept, observed and
performed. This indemnity and hold harmless agreement shall include indemnity
from and against any and all liability, fines, suits, demands, costs and
expenses of any kind or nature incurred in or in connection with any such claim
or proceeding brought thereon and the defense thereof. In any event, there shall
be absolutely no personal liability on the part of the Lessor to the Lessee with
respect to any of the terms, covenants and conditions of this Lease and Lessee
shall look solely to the equity of the Lessor or any successors in interest to
the Lessor in the fee or leasehold estate of the Lessor, as the case may be, for
the satisfaction of each and every remedy of the Lessee in the event of any
breach by the Lessor of any of the terms, covenants and conditions of this Lease
to be performed by the Lessor. Such exculpation of personal liability is to be
absolute and without any exculpation whatsoever.
B. CARE AND REPAIR OF PREMISES. Lessee shall commit no act of
waste and shall take good care of the Premises and fixtures and appurtenances
therein, and shall, in the use and occupancy of the Premises, conform to all
laws, orders and regulations of the federal, state, county and municipal
governments or any agency or department thereof. Lessee shall make all necessary
repairs, not including structural repairs, to the Premises at Lessee's sole cost
and expense to preserve the Premises in good condition and working order. All of
Lessee's repairs shall be of a first class quality and done in a good and
workmanlike manner and performed by such contractors that have been approved by
Lessor and have executed and delivered Lessor's standard indemnity agreement and
provided a certificate of insurance evidencing liability coverage in such an
amount and by such carrier satisfactory to Lessor. All such work shall be
scheduled in consultation with and subject to the approval of Lessor. If Lessor
shall fail to make such repairs as necessary, Lessor shall nevertheless make the
necessary repairs but Lessee shall pay to Lessor, as additional rent,
immediately upon demand, the costs therefor.
All alterations, additions and improvements made by Lessee to the
Premises, which are so attached to the Premises that they cannot be removed
without material injury to the Premises, shall become the property of Lessor
upon installation. Not later than the last day of the term, Lessee shall, at
Lessee's expense, (i) remove all Lessee's personal property and those
improvements made by Lessee which have not become the property of Lessor, as
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hereinabove provided, (including trade fixtures, cabinetwork, movable paneling,
partitions and the like); (ii) repair all injury done by or in connection with
the installation or removal of said property and improvements; and (iii)
surrender the Premises in as good conditions as they were at the beginning of
the term, reasonable wear and damage done by fire, the elements, casualty, or
other cause not due to the misuse or neglect of fault of or by Lessee, Lessee's
agents, servants, visitors or licensees excepted. All other property of Lessee
remaining on the Premises after the last day of the term of this Lease shall be
conclusively deemed abandoned and may be removed by Lessor, and Lessee shall
reimburse Lessor for the cost of such removal. Lessor may have any such property
stored at Lessee's risk and expense. Any fixtures placed upon the Demised
Premises shall be the property of the Lessor. Lessee shall not mortgage,
hypothecate, assign, or otherwise permit a lien to attach to said fixtures. At
Lessor's option, prior to vacating the Demised Premises at the expiration or
earlier termination of this Lease, Lessee shall remove all the telephone and
computer cable, wiring and flooring and deliver the Demised Premises in broom
clean condition.
If during the last sixty (60) days of the term of this Lease,
Lessee shall have removed all or substantially all of its property and personnel
from the Premises, Lessor may, at anytime thereafter, enter upon the Premises to
commence the alteration and renovation of the Premises. Lessor's entry upon the
Premises as aforesaid shall not affect or modify Lessee's obligation to pay
Basic and Additional Rent which shall not be reduced or abated. If Lessor shall
enter upon the Premises and commence the alteration and/or renovation of the
Premises as provided herein, Lessee shall not thereafter occupy the Premises.
C. ALTERATIONS, ADDITIONS OR IMPROVEMENTS. Lessee shall not make
any non-structural alterations, additions or improvements in, to or about the
Premises without first obtaining the express written consent of Lessor, which
consent shall not be unreasonably withheld or delayed. Lessor's consent may be
subject to such terms and conditions as Lessor may reasonably require including
the requirement that Lessee solely utilize union labor. If, in Lessor's sole
opinion, the proposed alteration, addition or improvement shall affect or impact
on any structural or mechanical systems in the Building, Lessor may withhold its
consent with or without cause. Lessee shall not install any air-conditioning or
heating systems of any kind whatsoever within the Demised Premises.
D. ACTIVITIES INCREASING FIRE INSURANCE RATES. Lessee shall not
do or suffer anything to be done on the Premises which will increase the rate of
fire insurance on the Building.
E. COMPLIANCE WITH RULES AND REGULATIONS. Lessee shall observe
and comply with the rules and regulations hereinafter set forth in Exhibit B
attached hereto and made a part hereof and with
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such further reasonable rules and regulations as Lessor may prescribe, on
written notice to the Lessee, for the security, safety, care and cleanliness of
the Building the comfort, quiet and convenience of other occupants of the
Building. Lessee shall not place a load upon any floor of the Demised Premises
exceeding the floor load per square foot area which it was designed to carry and
which is allowed by law. Lessor reserves the right to prescribe the weight and
position of all safes, business machines and mechanical equipment. Such
installations shall be placed and maintained by Lessee, at Lessee's expense, in
settings sufficient, in Lessor's judgment, to absorb and prevent vibration,
noise and annoyance.
F. INSOLVENCY OF LESSOR. Either (i) the appointment of a receiver
to take possession of all or substantially all of the assets of Lessee, or (ii)
a general assignment of Lessee for the benefit of creditors, or (iii) any action
taken or suffered by Lessee, voluntarily or involuntarily, under any insolvency
or bankruptcy or reorganization act of law, shall constitute a default of this
Lease by Lessee.
G. DEFAULT OF LESSEE. Any of the following events shall be a
default of Lessee: (i) Lessee's default in the payment on the due date of the
Basic Rents and/or additional rents and/or any other payment required of Lessee
by this Lease, unless Lessee shall cure such default within five (5) days after
the due date of such Basic Rent and/or additional rent and/or other payment
required of Lessee hereunder; (ii) Lessee's default in the performance of any of
the other covenants of Lessee or conditions of this Lease, unless Lessee shall
cure such default within fifteen (15) days after notice of such default given by
Lessor (or if any such default is of such nature that it cannot be completely
cured within such period, then unless Lessee shall commence such curing within
fifteen (15) days after notice of such default given by Lessor and shall
thereafter proceed with reasonable due diligence and in good faith to cure such
default and shall succeed in curing such default within a reasonable period of
time, and provided that the existence of such default for more than fifteen (15)
days does not, in Lessor's reasonable judgment, itself result in substantial
damages to Lessor and place Lessor in risk of substantial damage by such
additional time to cure such default); (iii) insolvency of Lessee as set forth
in the preceding paragraph above; (iv) the sale or attempted sale by or under
execution or other legal process of Lessee's leasehold interest hereunder and/or
substantially all of Lessee's other assets; (v) the initiation of legal
proceedings to effect, or resulting in, the seizure, sequestering or impounding
of any of Lessee's goods of chattels used in, or incident to, the operation of
the Premises by Lessee; (vi) assignment by operation of law of Lessee's
leasehold interest hereunder; (vii) any attempt by Lessee to assign the within
Lease or sublet the Demised Premises without the express prior written consent
of the Lessor; or (viii) any act of omission of Lessee constituting and
anticipatory breach or repudiation of this Lease.
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H. LESSOR'S REMEDIES ON DEFAULT OF LEASE. Upon any default of
Lessee as set forth in this Lease, Lessor, at Lessor's sole option, may elect
and enforce any of the remedies hereinafter provided in this paragraph;
provided, however, that Lessor may, at Lessor's sole option, elect and enforce
multiple remedies from among those remedies hereinafter provided to the extent
such remedies are not inconsistent and are not legally mutually exclusive and to
the extent Lessor, in Lessor's reasonable judgment, deem the enforcement of such
multiple remedies necessary or appropriate to indemnify and make Lessor whole
from any loss or damage as a result of the default or defaults of Lessee; and
provided further that Lessor, at Lessor's sole discretion, may successively
elect and enforce any number of the remedies hereinafter provided to the extent
that Lessor, in Lessor's reasonable judgment, deems necessary or appropriate to
indemnify and make Lessor whole from any loss or damage as a result of the
default or defaults of Lessee:
(i) Termination and Lessee's Liabilities. Lessor shall have
the right to terminate this Lease forthwith, and upon notice of such termination
given by Lessor to Lessee in accordance with the notice provisions of this
Lease, Lessee's right to possession, use and enjoyment of the Demised Premises
shall cease, and Lessee shall immediately quit and surrender the Demised
Premises to Lessor, but Lessee shall remain liable to Lessor as hereinafter
provided. Upon such termination of this Lease, Lessor may at any time thereafter
re-enter and resume possession of the Premises by any lawful means and remove
Lessee and/or other occupants and their goods and chattels. In any case where
Lessor has recovered possession of the Premises by reason of Lessee's default,
Lessor may, at Lessor's option, occupy the Premises or cause the Premises to be
redecorated, altered, divided, consolidated with other adjoining Premises, or
otherwise changed or prepared for reletting, and may relet the Premises or any
portion thereof prepared for reletting, and may relet the Premises or any part
thereof as agent of Lessee or otherwise, for a term or terms to expire prior to,
at the same time as, or subsequent to, the original expiration date of this
Lease, at Lessor's sole option, and Lessor shall receive the rent therefor. Rent
so received shall be applied first to the payment of such expenses as Lessor may
have incurred in connection with the recovery of possession, redecorating,
altering, dividing, consolidating with other adjoining Premises, or otherwise
changing or preparing for reletting, and the reletting, including brokerage and
reasonable attorney's fees, and then to the payment of damages in amounts equal
to the rent (basic and additional) and other payments required of Lessee
hereunder and to the costs and expenses of performance of the other covenants of
Lessee as herein provided. Lessee agrees, in any such case, whether or not
Lessor has relet, to pay to Lessor damage equal to the basic and additional rent
and other sums herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, as ascertained from time to
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time, and the same shall be payable by Lessee on the several rent days above
specified. Lessee shall not be entitled to any surplus accruing as a result of
any such reletting. In reletting the Premises as aforesaid, Lessor may grant
rent concessions and Lessee shall not be credited therewith. No such reletting
shall constitute a surrender and acceptance of or be deemed evidenced thereof.
If Lessor elects, pursuant hereto, actually to occupy and use the Premises or
any part thereof during any part of the balance of the term as originally fixed
or since extended, there shall be allowed against Lessee's obligation for rent,
other payments and damages as herein defined, during the period of Lessor's
occupancy, the reasonable value of such occupancy, equal to in any event the
basic and additional rent herein reserved. In no event shall such occupancy by
Lessor be construed as a release of Lessee's liability hereunder.
(ii) Specific Performance of Lease. Lessor she have the right
to enforce Lessee's specific performance of each and every covenant, condition
and other provision of this Lease.
(iii) Liquidated Damages. In any case where Lessor has
recovered possession of the Premises by reason of Lessee's default, Lessor may
at Lessor's option, and at any time thereafter, and without notice or other
action by Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from Lessee, as
damages for such default, in addition to such other sums herein agreed to be
paid by Lessee, to the date of re-entry, expiration and/or dispossess, an amount
equal to the difference between (a) the sum of the Basic Rent and additional
rents and other payments reserved in the Lease and required of Lessee hereunder
from the date of such default to the date of expiration of the original term
demised, and (b) the then fair and reasonable rental value of the Premises for
the same period. Said damages shall become due and payable to Lessor immediately
upon such default of this Lease and without regard to whether this Lease be
terminated or not; and if this Lease be terminated, without regard to the manner
in which it is terminated. In the computation of such damage, the difference
between any installments of rent (basic and additional) thereafter becoming due
and the fair and reasonable rental value of the Premises for the period for
which such installment was payable shall be discounted to the date of such
default at the rate of not more than four (4%) percent per annum.
(iv) Waiver of Right of Redemption. Lessee hereby waives all
right of redemption to which Lessee or any person under Lessee might be entitled
to by law or in equity.
(v) Other Remedies. Lessor's remedies hereunder are in
addition to any remedy allowed by law or in equity.
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(vi) Non-exclusivity. The remedies set forth above shall be
non-exclusive and the Lessor's election to enforce any remedy shall not be
deemed a waiver of any other remedy Lessor may be entitled to hereunder or as
allowed by law or in equity.
(vii) Lessor's Duty to Mitigate. Lessor and Lessee acknowledge
that Lessor's obligation to mitigate damages in the event of Lessee's breach
shall be satisfied by providing adequate information to the commercial brokerage
community as to the availability for letting of the Demised Premises; having the
Demised Premises available for inspection by prospective tenants during Building
Hours, and by the acceptance of a commercially reasonable offer for all or a
portion of the Demised Premises, which acceptance shall be evidenced by the
execution of a lease agreement in form and providing terms substantially the
same as the form utilized for all space tenants at the Building and without
material changes therefrom. Lessor shall be under no obligation to accept any
offer other than a commercially reasonable offer. Lessor's actions required
hereunder, including providing information as to the availability of the Demised
Premises for letting, the showing of the Demised Premises to prospective lessees
and the evaluation and acceptance of proposed offers to let, shall be in the
ordinary course of business and shall neither discriminate in favor of nor
against the Demised Premises.
I. SUBORDINATION OF LEASE. This Lease shall, at Lessor's option, or
at the option of any holder of any underlying or ground lease or holder of a
first institutional mortgage or deed of trust, be subject and subordinate to any
such underlying leases and to any such first institutional mortgage and/or Deed
of Trust which may now or hereafter affect the real property of which the
Premises form a part, and also to all renewals, modifications, consolidations
and replacements of said underlying lease and said first institutional mortgage
an/or Deed of Trust. Although no instrument or act on the part of Lessee shall
be necessary to effectuate such subordination, Lessee will, nevertheless,
execute and deliver such further instruments confirming such subordination of
this lease as may be desired by the holder of said first institutional mortgage
and/or Deed of Trust of by any of the lessors under such underlying or ground
leases. Lessee hereby appoints Lessor attorney-in-fact, irrevocably, to execute
and deliver any such instrument for Lessee. If any underlying or ground lease to
which this Lease is subject shall terminate, Lessee shall, on timely request,
attorn to the owner of the reversion. Lessor shall use reasonable efforts to
obtain from its institutional mortgagee a non-disturbance agreement in form
customarily used by the mortgagee, for the benefit of Lessee.
J. RIGHT TO CURE LESSEE'S BREACH. If Lessee breaches any covenant or
condition of this lease, Lessor may, on reasonable notice to Lessee (except that
no notice need be given in case of emergency), cure such breach at the expense
of Lessee and the
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reasonable amount of all expenses, including attorney's fees, incurred by Lessor
in so doing (whether paid by Lessor or not) shall be deemed additional rent
payable on demand.
K. MECHANIC'S LIEN. Lessee shall, within fifteen (15) days after
notice from Lessor, discharge or satisfy by bonding or otherwise any mechanic's
liens or other liens for equipment, material, labor or goods or services claimed
to have been furnished to the Premises on Lessee's behalf.
L. RIGHT TO INSPECT AND REPAIR. Lessor may enter the Premises but
shall not be obligated to do so (except as required by any specific provision of
this Lease) at any reasonable time on reasonable notice to Lessee (except that
no notice need be given in case of emergency) for the purpose of inspection of
the making of such repairs, replacement or additions, in, to, on and about the
Premises or the Building, as Lessor deems necessary or desirable. Lessee shall
have no claim or cause of action against Lessor for interruption to Lessee's
business, however occurring.
M. INTERRUPTION OF SERVICE. Interruption or curtailment of any
service maintained in the Building or at the Office Building Area, if caused by
force majeure, as hereinafter defined, shall not entitle Lessee or any claim
against Lessor or to any abatement in rent, and shall not constitute a
constructive or partial eviction, unless Lessor fails to take measures as may be
reasonable under the circumstances to restore the service within five (5) days
after receipt of notice from Lessee regarding such interruption or curtailment.
If the Premises are rendered untenantable in whole or in part for a period of
thirty (30) consecutive days by the making of repairs or replacements, other
than those made with Lessee's consent or caused by misuse or neglect by Lessee,
or Lessee's agents, servants, visitors or licensees, Lessee shall have the right
to make such repairs or replacements and offset the cost thereof against the
Basic Rent. In no event shall Lessee be entitled to claim a constructive
eviction from the Premises, unless Lessee shall first have notified Lessor in
writing of the condition or conditions giving rise thereof, and, if the
complaints be justified, unless Lessor shall have failed within thirty (30)
days, after receipt of such notice, to remedy, to commence and proceed with due
diligence to remedy such condition or conditions, subject to force majeure, as
hereinafter defined.
N. LESSEE'S ESTOPPEL. Lessee shall, from time to time, on not less
than seven (7) days' prior written request by Lessor, execute, acknowledge and
deliver to Lessor a written statement certifying that the Lease is unmodified
and in full force and effect, or that the Lease is in full force and effect as
modified and listing the instruments of modification; the dates to which the
rents and charges have been paid; and whether or not, to the best of the
Lessee's knowledge, Lessor is in default hereunder, and if so, specifying the
nature of the default. It is intended that any
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such statement delivered pursuant to this paragraph may be relied upon by a
prospective purchaser of Lessor's interest or mortgagee of Lessor's interest or
assignee of any mortgage or Lessor's interest. Lessee shall promptly provide
Lessor with its most recent financial statements prepared in accordance with
generally accepted accounting principles and/or tax returns for submission to
Lessor's mortgagee.
O. HOLDOVER TENANCY. If Lessee holds possession of the Premises
after the term of this Lease, Lessee shall become a tenant from month to month
under the provisions herein provided, but, at a monthly Basic Rental of one
hundred fifty (150%) percent of the Basic Rent for the last month of the lease
term or any renewed or extended term, payable in advance on the first day of
each month, and such tenancy shall continue until terminated by Lessor, or until
Lessee shall have give to Lessor a written notice, at least sixty (60) days
prior to the intended date of termination of intent to terminate such tenancy.
P. LESSOR'S WORK. Lessee acknowledges that it has inspected and is
fully familiar with the Demised Premises and that it has accepted the Demised
Premises in "AS IS" condition. Lessee shall be solely responsible for obtaining
a Certificate of Occupancy from the Village of Ridgefield Park at Lessee's sole
cost and expense.
No "high hats" or other lighting fixtures shall be permitted without
the express written consent of the Lessor. Lessee agrees to maintain 100%
covering of the floor area within the Demised Premises utilizing carpeting,
vinyl floor tiles, hardwood or a similar covering. No bare concrete floors shall
be permitted.
Q. RIGHT TO SHOW PREMISES. Lessor may show the Premises, on
reasonable notice to Lessee, during business hours, and, during the twelve (12)
months prior to termination of this Lease, to prospective tenants, during
business hours.
R. WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted
by law, the parties waive trial by jury in any action or proceeding brought in
connection with this Lease or the Premises.
S. NO RECORDATION. Lessee agrees not to record of file this Lease or
any memorandum thereof in any public recording office, including the Bergen
County Clerks' Office. Any such recording or filing shall constitute a default
hereunder entitling Lessor to all available remedies, including but not limited
to termination and re-entry.
T. PERSONAL LIABILITY. Notwithstanding anything to the contrary
provided in this Lease, it is specifically understood and
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agreed such agreement being a primary consideration for the execution of this
Lease by Lessor, that there shall be absolutely no personal liability on the
part of Lessor, its partners, shareholders of partners, affiliated Company, its
successors, assigns or any mortgagee in possession (for the purposes of this
paragraph, collectively referred to as "Lessor"), with respect to any of the
terms, covenants and conditions of the Lease, and that Lessee shall look solely
to the equity of Lessor in the Building for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exceptions whatsoever.
U. ATTORNEY'S FEES. In the event Lessor shall employ an attorney to
enforce any of the conditions of this Lease, or to enforce Lessee's covenants
hereunder, or any of Lessor's rights, remedies, privileges or options under this
Lease, or at law or in equity, the Lessor shall be entitled to reimbursement
from Lessee of all costs and expenses incurred or paid by Lessor in so doing,
including, but not by way of limitation, all reasonable attorney's fees and
costs incurred or paid by Lessor at any time or times in connection therewith,
whether the matter is settled privately, or by arbitration, or by legal action
at the trial court level and at any and all appellate court levels, provided,
however, that Lessor shall be entitled to reimbursement as provided in this
paragraph only if Lessor shall prevail in such arbitration or legal action or
that the matter or issue shall be settled in Lessor's favor.
V. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease
shall apply to, bind and inure to the benefit of Lessor and Lessee, and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Lessor" as used in this Lease means only the owner, a
mortgagee in possession or a term lessee of the Building, so that in the event
of any sale of the Building and/or the parcel of land upon which the Building is
situate (the "Office Building Area") and/or of any lease thereof, or if a
mortgagee shall take possession of the Premises, the Lessor named herein shall
be and hereby is entirely freed and relieved of all covenants, obligations and
liabilities of Lessor hereunder accruing thereafter, and it shall be deemed
without further agreement that the purchaser, the term lessee of the Building,
or the mortgagee in possession has assumed and agreed to carry out any and all
covenants and obligations of Lessor hereunder. In the event of any sale or
transfer as provided hereinabove, the liability of the Lessor hereunder shall
cease and Lessee agrees to present any claim to the purchaser, successor or
assigns.
W. WAIVER. Lessee agrees that the failure of Lessor in one or more
instances to insist upon strict performance or observance of one or more of the
covenants or conditions hereunder,
13
or to exercise any rights, remedies, privileges, or option provided by law or in
equity or provided or reserved to Lessor in this Lease, shall not operate or be
construed as a relinquishment or waiver for the future of such covenant or
condition or of the right to enforce the same or to exercise such right, remedy,
privilege or option; but rather, the same shall continue in full force and
effect. The receipt and acceptance by Lessor of Basic Rents and/or additional
rents and/or any other payments hereunder, or any part or portion thereof, shall
not be a waiver of any other Basic Rents and/or additional rents and/or any
other payments hereunder, or any part or portion thereof, and such receipt and
acceptance by Lessor, though with knowledge on the part of Lessor of the breach
of any covenant or conditions of this Lease, shall not be, or operate as, a
waiver of such breach or a waiver of any right, remedy, privilege or option of
Lessor arising hereunder or at law or in equity on account of such breach in the
absence of such receipt or acceptance. No waiver by Lessor of any of the
provisions of this Lease, or of any of Lessor's rights, remedies, privileges or
options under this Lease, shall be deemed to have been made unless made by
Lessor in writing. If Lessor shall consent to the assignment of this Lease or to
a subletting of all or a portion of the Demised Premises, or if any such
assignment or subletting may be made hereunder without Lessor's consent, no
further assignment or subletting shall be made without the prior written consent
of Lessor, unless otherwise expressly permitted elsewhere in this Lease (this
provision with respect to an assignment or subletting without Lessor's consent
shall not constitute a waiver, or any way lesson Lessor's rights and remedies
with respect to an assignment or subletting made without Lessor's consent).
X. NO UNLAWFUL OCCUPANCY. Lessee shall not use or occupy, nor permit
or suffer, the Demised Premises or any part thereof to be used or occupied for
any unlawful purpose deemed by Lessor disreputable or not in keeping with the
high-class nature of the complex of which the Demised Premises forms a part, or
extra-hazardous, nor in such manner as to constitute a nuisance of any kind, nor
for any purpose or in any way in violation of any present or future governmental
laws, ordinances, requirements, orders, directions, rules or regulations. Lessee
shall immediately upon the discovery of any such unlawful, illegal, disreputable
or extra-hazardous use not in keeping with the high-class nature of the building
of which the Demised Premises forms a part, take all necessary steps, legal and
equitable, to compel the discontinuance of such sue and to oust and remove any
subtenants, occupants or other persons guilty of such unlawful, illegal,
disreputable or extra-hazardous use.
Y. ENVIRONMENTAL/ISRA COMPLIANCE.
(i) Lessee shall indemnify and hold Lessor harmless including
attorneys and professional fees, with respect to any and all liability pursuant
to and/or under any federal and state
14
environmental statute, law, regulation, rule or ordinance and from all suits,
fines, claims and actions of whatsoever nature arising out of the use and/or
storage of any substance determined by the New Jersey Department of
Environmental Protection and Energy ("NJDEPE") or the United States
Environmental Protection Agency ("EPA") to be hazardous or toxic and any damages
or liabilities therefrom. Lessee's liability shall be limited to claims, damages
or contamination arising from Lessee's use and occupancy of the Demised Premises
and use of the common areas. Lessee shall promptly provide Lessor with a copy of
any notice, correspondence, or document received by Lessee from and/or
disclosure required to be submitted by Lessee to any governmental agency in
respect of environmental, health and safety matters including but not limited to
NJDEPE, EPA and OSHA.
(ii) Lessee shall, at Lessee's own expense, comply with the
Industrial Site Recovery Act, N.J.S.A. 13: 1K-6 et seq., the regulations
promulgated thereunder and any amending and successor legislation and
regulations ("ISRA"). Lessee shall, at Lessee's own expense, make all
submissions to, provide all information to, and comply with all requirements of
the Industrial Site Evaluation Element or its successor ("Element") of the New
Jersey Department of Environmental Protection and Energy or its successor
("NJDEPE").
(iii) If ISRA is applicable, Lessee's obligations under this
paragraph shall arise if there is a closing of operations, a transfer of
ownership or operations, or a change in ownership at or affecting the Premises
pursuant to ISRA.
(iv) Lessee represents and warrants to Lessor that Lessee intends
to use the Premises for general office and administrative purposes which has the
following Standard Industrial Classification ("S.I.C.") numbers as defined by
the most recent edition of the Standard Industrial Classification Manual
published by the Federal Executive Office of the President, Office of Management
and Budget: 7389, Lessee's use of the Demised Premises shall be restricted to
the classification set forth above. Prior to the Lease Commencement Date, Lessee
shall supply to Lessor an affidavit of an officer or partner of Lessee setting
forth Lessee's S.I.C. number and a detailed description of the use. The
affidavit shall be supplemented and updated in the event of any change but no
less frequently than every two (2) years.
(v) If ISRA is applicable, Lessee shall, at Lessee's sole cost
and expense, obtain a letter of non-applicability from the Element prior to the
termination of the Lease Term and shall promptly provide to Lessor copies of
Lessee's submission and the Element's non-applicability letter.
(vi) Lessee shall notify Lessor in advance of all meetings
scheduled between Lessee or Lessee's representatives and
15
NJDEPE or any other environmental authority, and Lessor and Lessor's
representatives shall have the right, but not the obligation, to attend and
participate in all such meetings.
(vii) Lessee shall permit Lessor and Lessor's agents, servants,
and employees, including but not limited to legal counsel and environmental
consultants and engineers, access to the premises for the purposes of
environmental inspection and sampling during regular business hours, or during
other hours either by agreement of the parties or in the event of any
environmental emergency. Lessee shall not restrict access to any part of the
Premises, and Lessee shall not impose any conditions to access. In the event
that Lessor's environmental inspection shall include sampling and testing of the
Premises, Lessor shall use its best efforts to avoid unreasonably interfering
with Lessee's use of the Premises, and upon completion of sampling and testing
shall, to the extent reasonably practicable, repair and restore the affected
areas of the Premises from any damage caused by the sampling and testing.
(viii) Lessee shall indemnify, defend, and hold harmless Lessor
from and against all claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including without limitation, counsel, engineering and
other professional or expert fees, which Lessor may incur resulting directly or
indirectly, wholly or partly from Lessee's action or non-action with regard to
Lessee's obligations under this paragraph.
(ix) This paragraph shall survive the expiration or earlier
termination of this Lease. Lessee's failure to abide by the terms of this
paragraph shall be restrainable by injunction.
Z. AMERICANS WITH DISABILITY ACT. Notwithstanding anything herein to
the contrary, Lessee shall be obligated to, and have the responsibility of
complying with all of the relevant terms, conditions and requirements of the
Americans with Disability Act (the "ADA") to the extent the ADA is applicable to
Lessee's use and occupancy of the Demised Premises. To the extent the provisions
of the ADA mandate modifications to the Demised Premises, such modifications
shall be made by Lessee at its sole cost and expense, but in coordination and
consultation with Lessor. In the event Lessee shall fail to comply with the
requirements of the ADA, Lessor may, but shall not be obligated, take such steps
as may be necessary to comply with the ADA and Lessee shall pay Lessor, upon
demand, the cost thereof which shall be deemed Additional Rent.
AA. RELOCATION OF LESSEE. Lessor hereby reserves the right, at its
sole expense and on at least sixty (60) days prior written notice, to require
Lessee to move from the Premises to other space within the Building, but not
below the fourth (4th) floor, of comparable size (i.e. an entire floor) and
decor in order to permit Lessor to consolidate the space leased to Lessee with
any other
16
space leased or to be leased to another tenant. In the event of any such
relocation, Lessor will pay all expenses of preparing and decorating the new
premises so that the same shall be substantially similar to the Premises from
which Lessee is moving and Lessor will also pay the expense of moving Lessee's
furniture and equipment to the relocated premises. Lessor shall use its
reasonable efforts not to disrupt Lessee's business operations in completing the
relocation. In such event, this Lease and each and all of the terms, covenants
and conditions hereof, shall remain in full force and effect and thereupon be
deemed applicable to such new space except that the description of the Premises
shall be revised and if applicable, Lessee's Proportionate Share shall likewise
be revised.
10. DEFAULT BY SUBTENANT. In the event the Subtenant shall default in
any of its obligations under this Sublease, or in any of the obligations which
the Subtenant has assumed toward the Sublessor and Lessor pursuant to paragraph
9 hereof, then the Sublessor shall have the right to exercise against the
Subtenant all of the same rights and remedies which the Lessor would have the
right to assert against the Sublessor pursuant to those terms and conditions of
the Original Lease which have been included in paragraph 9 of this Sublease. The
Subtenant acknowledges and agrees that the Sublessor as well as its members and
officers shall be entitled to exculpation from any personal liability under this
Sublease to the same extent that the Lessor and its officers and stockholders
are entitled to exculpation from personal liability as set forth in those terms
and conditions of the Original Lease which have been included in paragraph 9
hereof.
11. ADDITIONAL RENT. It is expressly agreed that Subtenant will pay, in
addition to the Basic Rent provided in paragraph 2 above, additional rent to
cover Subtenant's proportionate share, as hereinafter defined, of the increased
cost to Sublessor, for each of the categories enumerated herein, over the "Base
Period Costs" (as hereinafter defined) for said categories.
17
A. OPERATING COSTS ESCALATION. If the Operating Costs (as
hereinafter defined) incurred for the Building and Office Building Area for any
calendar year or proportionate part thereof during the Term of the Sublease
shall be greater than the Base Operating Costs incurred during the Base Period
(as hereinafter defined), adjusted proportionately for periods less than a lease
year (as hereinafter defined), then Subtenant shall pay to Sublessor, as
additional rent, its proportionate share (as hereinafter defined) of such excess
Operating Costs. Operating Costs means each and every item of cost and expense
of whatever variety or description paid or incurred for maintenance and variety
or description paid or incurred for maintenance and operation of the Office
Building Area and Building of which the Premises form a part (excluding Real
Estate Taxes), including by way of illustration and not of limitation, fuel,
utilities, electric, water, sewer, heating, ventilating and air conditioning,
service contracts, elevators, plumbing/sprinkler pumps and motors, roofing and
waterproofing, widow and glass, water treatment, painting, rubbish removal,
tools and equipment, metal maintenance, general building supplies, locks and
keys, signage and directory, security, masonry repairs, personal property taxes,
management fees, direct labor, (including all wages and salaries), fringe
benefits, unemployment taxes, social security taxes, worker's compensation,
insurance and other similar taxes which may be levied upon the Lessor with
respect to such wages and salaries; disability benefits, hospitalization,
medical, surgical, union and general
18
welfare benefits, any pensions, retirement, or life insurance plan and other
benefit or similar expense respecting employees of the Lessor; uniforms and
working clothes for such employees; Lessor's expenses imposed pursuant to law or
to any collective bargaining agreement), fire and other insurance, trash
removal, data processing costs, interior and exterior landscaping and
decoration, repairs, replacements and improvements which are necessary or
appropriate for the continued operation of the Building and Office Building Area
as a first class office building or are made in compliance with requirements of
any federal, state or local law or governmental regulation, whether or not such
law or regulation is valid or mandatory, management fees for the management of
the Building, or if no managing agent is employed by the Lessor, a sum in lieu
thereof which is not in excess of the then prevailing rates for management fees
in Bergen County, New Jersey, attorneys' fees, appraisal and other experts fees
incurred in pursuance of any real estate tax appeal, accounting fees and all
other items properly constituting direct operating costs or that portion of a
capital expenditure amortized during the Base Period and/or applicable lease
year according generally accepted accounting principles, but not including
depreciation of Building or equipment, interest, income or excess profits,
taxes, costs of maintaining the Lessor's corporate or other existence, franchise
taxes, or any expenditures required to be capitalized for federal income tax
purposes in excess of that portion of the said capital expenditure amortized
during the Base Period and/or applicable lease year. As used in
19
this subparagraph A, the Base Operating Costs shall be the Operating Costs
incurred during the Base Period with respect to the establishment of the Base
Operating Costs (as said Base Period is hereinafter defined in subparagraph E).
If such Base Period is less than three hundred sixty-five (365) days, then the
Base Operating Costs shall be determined by analyzing the Operating Costs
incurred during such Base Period.
B. TAX ESCALATION.
(i) If the Real Estate Taxes (as hereinafter defined in
subparagraph B (ii) (b) for the Building and Office Building Area at which the
Demised Premises are located for any Sublease year or proportionate part thereof
during the Sublease term, shall be greater than the Base Real Estate Taxes (as
hereinafter defined in subparagraph B (ii) (b), incurred in the Base Period
adjusted proportionately for periods less than a sublease year, then the
Subtenant shall pay to Sublessor as additional rent its proportionate share, as
hereinafter defined, of all such excess Real Estate Taxes.
(ii) As used in this subparagraph (ii), the words and terms which
follow mean and include the following:
(a) "Base Real Estate Taxes" shall mean those real estate
taxes assessed against the Building and Office Building Area as provided for in
the tax bill issued by the Village of Ridgefield Park for the year commencing
July 1, 1999.
(b) "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and the
20
land upon which it stands, or upon the rent, as such, payable to the Lessor. If
due to a future change in the method of taxation, any franchise, income or
profit tax shall be levied against Lessor in substitution for, or in lieu of, or
in addition to, any tax which would otherwise constitute a Real Estate Tax, such
franchise, income or profit tax shall be deemed to be a Real Estate Tax for the
purposes hereof; conversely, any additional Real Estate Tax hereafter imposed in
substitution for, or in lieu of, any franchise, income or profit tax (which is
not in substitution for, or in lieu of, or in addition to, a Real Estate Tax as
hereinbefore provided) shall not be deemed a Real Estate Tax for the purpose
hereof.
(c) In the event Lessor is successful, as a result of a tax
appeal or protest, in obtaining a reduction in Real Estate Taxes for any period
for which Subtenant has paid additional rent pursuant to subparagraph B hereof,
Subtenant shall be entitled to a rebate for its proportionate share of the
reduction less all costs and expenses incurred in pursuance of the said tax
appeal or protest, including filing fees, legal fees and expert fees. Sublessor
shall pay the rebate within 30 days after receipt of the same from Lessor. A
reduction shall be deemed final thereby entitling Subtenant to the rebate
hereunder only upon final judgment of a court of competent jurisdiction and not
until the time for filing any appeal therefrom has expired. Nothing contained
herein shall be deemed to give Lessee standing to file a tax appeal Subtenant
expressly acknowledges that the right to file such a tax appeal shall be solely
that of the Lessor.
21
C. LEASE YEAR. As used in this paragraph, sublease year shall mean
the calendar year within which possession is delivered, and each twelve (12)
month calendar year thereafter. Once the Base Period Costs are established, in
the event any sublease year is less than twelve (12) months, then the Base
Period Costs for the categories listed above shall be adjusted to equal the
proportion that said period bears to twelve (12) months, and Subtenant shall pay
to Sublessor as additional rent for such period, an amount equal to Subtenant's
proportionate share, as hereinafter defined, of the excess for said period over
the adjusted Base Period Costs with respect to each of the categories listed
above.
D. PAYMENT. The increase in Base Period Costs shall be paid by
Subtenant as set forth in this subparagraph. Upon receipt of a notice of
increase from Lessor, the Sublessor shall advise Subtenant, in writing, of
Subtenant's proportionate share of the increase in the Operating Costs and Real
Estate Taxes over the Base Period Costs as Lessor has estimated for the next
twelve (12) months, in the exercise of Lessor's reasonable business judgment.
Subtenant's proportionate share of the estimated increase shall be paid by
Subtenant in twelve (12) equal monthly installments. The estimated increase, and
the monthly installments shall be adjusted at the expiration of each sublease
year to reflect the actual increases in Operating Costs as reported by Lessor
and, after each annual tax bill has been issued, to reflect the actual increase
in Real Estate Taxes. All of these payments shall be deemed to be additional
rent. Any overage shall be refunded to Subtenant within thirty (30) days after
Sublessor has received a refund from Lessor.
22
Notwithstanding anything herein contained to the contrary, in the
event the last sublease year prior to termination is less than twelve (12)
months, the Base Period Costs shall be proportionately reduced to correspond to
the duration of said final period.
E. BASE PERIOD.
(i) The Base Period with respect to the establishment of the Base
Operating Costs shall be the calendar year 1999.
(ii) The Base Period with respect to the establishment of the
Base Real Estate Taxes shall mean the calendar year 1999 as set forth in the tax
bill issued for the second half of 1999.
F. BILLS AND CHARGES. Lessor has agreed to maintain bills and
charges for the previous 12 month period which, provided Operating Cost
Escalation shall increase by more than five (5%) percent in any calendar year
during the term of the Sublease, shall be open to Sublessor and its
representatives at all reasonable times and upon reasonable notice, so that
Sublessor can determine that such Operating and Tax Costs have, in fact, been
paid or incurred. In the event of any disagreement as to one or more charges not
settled between Sublessor and Lessor, such disagreement shall be referred to an
independent certified public accountant mutually acceptable to Sublessor and
Lessor. If Sublessor and Lessor shall fail to agree upon such an accountant,
either party may refer the dispute to the American Arbitration Associate (the
23
"AAA"). The decision of the accountant or the AAA, as applicable, shall be final
and binding. Sublessor and Lessor shall share equally the costs and expenses
incurred with respect to such arbitration and Subtenant shall reimburse
Sublessor for its pro rata share thereof. Pending resolution or determination of
any dispute, Subtenant shall pay to Sublessor the sum as billed by Sublessor.
Sublessor has no right to review such bills and charges more than once in any 12
month period and then may only review bills and charges for the said 12 month
period. Sublessor shall not be required to contest or review any Operating or
Tax Costs, and the Subtenant shall be bound by any agreement or determination
reached by Sublessor.
G. For purposes of this Sublease, the Subtenant's proportionate
share of the Premises is agreed to be 22.47%.
12. SIGNAGE. Subtenant shall not place any signs of any nature
whatsoever on or about the entry or other door or on any exterior wall of the
Premises or Building; signage shall be limited to the name of the Subtenant on
the wall in reception area of the Premises as approved by Sublessor. Provided
that Lessor maintains a computerized directory in the Building lobby, Sublessor
shall make available on the Building directory a sufficient number of lines or a
sufficient amount of space for Subtenant's use to accommodate Subtenant's firm
name in a style approved by Sublessor.
13. LATE CHARGES. Anything in this Sublease to the contrary
notwithstanding, at Sublessor's option, Subtenant shall pay a "Late Charge" of
five (5%) percent of any installment of rent or
24
additional rent paid more than five (5) days after the due date thereof, to
cover the extra expense involved in handling delinquent payments.
14. ACCORD AND SATISFACTION. No payment by Subtenant or receipt by
Sublessor of a lesser amount than the rent and additional charges payable
hereunder shall be deemed to be other than a payment on account of the earliest
stipulated Basic Rent and additional rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment for rent
or additional rent be deemed an accord and satisfaction, and Sublessor may
accept such check or payment without prejudice to Sublessor's right to recover
the balance of such rent and additional rent or pursue any other remedy provided
herein or by law.
15. SUBTENANT'S INSURANCE.
A. Subtenant covenants to provide on or before the commencement
date, a comprehensive policy of general liability insurance, naming the Lessor
and Sublessor as additional named insureds, insuring Subtenant, Sublessor, and
Lessor against any liability commonly insured against and occasioned by accident
resulting from any act or omission on or about the Premises and any
appurtenances thereto. Said policy is to be written by an insurance company
licensed and qualified to do business in the State of New Jersey and reasonably
satisfactory to Sublessor and Lessor. The policy shall have a combined single
limit of not less than Three Million ($3,000,000.00) Dollars in respect of
injury to any one person and any one accident, and One Million
25
($1,000,000.00) Dollars in respect of property damage. Said limits shall be
subject to periodic review and the Sublessor and Lessor reserve the right to
increase said coverage limits if, in the reasonable opinion of Lessor or
Sublessor, said coverage becomes inadequate and is less than commonly maintained
by tenants in similar buildings in the area by tenants making similar uses. At
least thirty (30) days prior to the expiration or cancellation date of any
policy, the Subtenant shall deliver a renewal or replacement policy with proof
of the payment of the premium therefor to Lessor and Sublessor.
B. Subtenant covenants and represents, said representation being
specifically designed to induce Sublessor to execute this Sublease, that
Subtenant's (i) personal property, fixtures and any other items which Subtenant
may bring to the Premises, and (ii) business which may be subject to any claim
for damages, interruption or destruction due to Lessor's or Sublessor's
negligence shall be fully insured by a policy of insurance covering all risks
with no deductible which policy shall specifically provide for a waiver of
subrogation for Lessor and Sublessor and all Building tenants without regard to
whether or not same shall cost an additional premium and notwithstanding
anything to the contrary contained in this Sublease. Should Subtenant fail to
maintain said all risk insurance with the required waiver of subrogation, or
fail to maintain the liability insurance, naming Lessor and Sublessor as
additional named insureds, then Subtenant shall be in default hereunder and
shall be deemed to have breached its covenants as set forth herein.
26
16. CASUALTY AND EMINENT DOMAIN. In the event the Original Lease
terminates on account of any damage by fire or other cause to the Building or
Premises or on account of the exercise of any right of eminent domain or threat
thereof, then this Sublease shall terminate on the same date that the Original
Lease terminates. In such case, Basic Rent and additional rent shall be paid up
to the date of termination of this Sublease. Subtenant agrees that it shall not
be entitled to any part of any award for any taking by eminent domain or payment
in lieu thereof, however Subtenant may file a separate claim for any taking of
the Subtenant's fixtures and improvements which have not become the Lessor's
property, and for moving expenses provided the same shall in no way affect or
diminish Lessor's award, and under no circumstances shall Subtenant have any
right to any part of the award resulting from the value of the sublease held
estate of the Subtenant. In the event the Sublease does not terminate on account
of such damage or eminent domain proceedings, then the Subtenant shall be
entitled to its pro rata share of any abatement or reduction of Basic Rent or
additional rent allowed by the Lessor to the Sublessor. Notwithstanding the
foregoing, in the event of any loss or damage to the building or the Premises or
any contents, each party shall first look to any insurance in its favor before
making any claim against the other party, and to the extent possible without
additional cost, each party shall obtain, for each policy of insurance,
provisions permitting waiver of any claim against the other party (including the
Sublessor and Lessor) for loss or damage
27
within the scope of such insurance, and each party, to the extent permitted,
for itself and its insurers waives all such insured claims against the other
party.
17. INDEMNITY. The Subtenant agrees to indemnify and hold the Sublessor
harmless from any claim, action, or demand arising from or relating to its
failure to perform its obligations under this Sublease or those obligations of
the Sublessor to the Lessor under the Original Lease which have been assumed by
the Subtenant in accordance with paragraph 9 hereof, including reasonable
attorneys' fees and expenses in defense of any such claim. Without limiting the
generality of the foregoing indemnity, the Subtenant specifically agrees that it
shall be solely responsible for any Basic Rent, additional rent, or other
charges which may be due the Lessor from the Sublessor as a result of the
Subtenant's failure to vacate the Space and the Premises and give possession
thereof to the Lessor upon the expiration of the Original Lease or this
Sublease, whichever occurs first.
18. SERVICES TO BE PROVIDED. While Subtenant is not in default under
any of the provisions of this Lease, Sublessor agrees to furnish, except on
holidays as set forth on Exhibit C attached hereto and made a part hereof, the
following:
A. The cleaning services, as set forth in Exhibit D attached hereto
and made a part hereof, and subject to the conditions therein stated. Except as
set forth in Exhibit D, Subtenant shall pay Sublessor the cost of all other
cleaning services required by Subtenant.
28
B. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season, during "Building Hours", as hereinafter defined. In
the event Subtenant shall require HVAC other than during Building Hours (as
defined elsewhere herein), Subtenant shall give not less than twenty-four (24)
hours notice to Sublessor and shall pay Sublessor, upon demand, the sum of
$75.00 for each hour, or portion thereof, of HVAC provided outside Building
Hours.
C. Electric current for usual office requirements and equipment
which shall include typewriters and collators, copying machines, calculators,
clocks, water coolers, personal computers and similar office equipment;
provided, however, that Sublessor shall not be required to provide electrical
current for any office equipment needing greater than fifteen amp service.
D. As used herein, the term "Building Hours" shall be Monday
through Friday, 8 o'clock a.m. to 6 o'clock p.m., and on Saturday 8 o'clock a.m.
to 1 o'clock p.m.
E. Notwithstanding the requirements of Exhibit D or any other
provision of this Lease, Sublessor shall not be liable for failure to furnish
any of the aforesaid services when such failure is due to actions or omissions
of Lessor or any third party or force majeure. Sublessor shall not be liable,
under any circumstances, for loss of, or injury to Subtenant or to the business
or property of Subtenant through or in connection with or incidental to the
furnishing of, or failure to furnish, any of the aforesaid services or for any
interruption to Subtenant's business, however occurring.
29
19. PARKING SPACES. Sublessor represents that pursuant to the terms of
the Original Lease, the Subtenant has been allocated the use of 71 parking
spaces at the Building, and the Subtenant shall be entitled to the use of such
parking spaces in common with the Sublessor and any other subtenants. The
Sublessor reserves the right to allocate and reserve such parking spaces, so
long as such allocation is made upon a fair and reasonable basis. Neither
Sublessor nor Lessor shall be responsible or liable for any damage to any
vehicles or the contents thereof as a result of fire, theft, vandalism and/or
collision.
20. SECURITY DEPOSIT. The Subtenant shall deposit with Sublessor upon
the execution hereof, the sum of Twenty Thousand ($20,000) Dollars as security
for the performance of Subtenant's obligations hereunder. If Sublessor applies
any part of said deposit to cure any default of Subtenant, then Subtenant shall
upon demand deposit with Sublessor the amount so applied so that at all times
Sublessor will have the full security deposit on hand. The Subtenant shall not
be entitled to any interest on the security deposit, and under no circumstances
shall the Subtenant be entitled to treat the security deposit as an advance
payment of rent.
21. NO LIABILITY FOR PROPERTY. Neither Lessor nor Sublessor shall be
liable for any loss of or damage to personal property of Subtenant or any
interruption of Subtenant's business from any cause whatsoever, including but
not by way of limitation, theft, casualty or vandalism, and Subtenant covenants
and agrees to make no claim against Lessor or Sublessor for any such loss.
30
22. NO OPTION. The provision of a draft or drafts of this Sublease to
the Subtenant or its attorneys shall not be considered as the extension of any
option to the Subtenant, or the making of any offer on the part of the
Sublessor. In addition, the effectiveness of this Sublease is subject to the
following conditions:
A. The Lessor's mortgagee's approval of the Original Lease; and
B. The Sublessor obtaining a Certificate of Occupancy from the
local municipality, or such documentation as the Sublessor shall deem sufficient
to prove that no such certificate is required.
23. MISCELLANEOUS.
A. No change, modification or termination of any of the terms,
provisions, covenants, promises or conditions of this Sublease agreement shall
be effective unless made in writing and signed or initialed by all parties
hereto or their successors or assigns.
B. This Sublease agreement shall be governed by and construed in
accordance with the substantive and procedural laws of the State of New Jersey,
and Sublessor and Subtenant acknowledge that they are subject to the
jurisdiction of the courts of the State of New Jersey.
C. If any paragraph, subparagraph or other provision of this
Sublease agreement, or application of such paragraph, subparagraph or provision,
is held invalid, then the remainder of
31
the Sublease agreement, and the application of such paragraph, subparagraph or
provision to persons, parties or circumstances other than those with respect to
which it is held invalid, shall not be affected thereby.
D. The Subtenant warrants and represents that the Sublessor nor
anyone acting on behalf of Sublessor has made any representations, promises, or
warranties to Subtenant, other than specifically as set forth in this Sublease
agreement.
E. Subtenant warrants and represents that this Sublease has been
duly authorized and approved by its Board of Directors, and that the corporate
officers executing this Sublease have the power and authority to execute the
same. Subtenant warrants and represents that it is not insolvent, and that it
has no present intention to commence bankruptcy or other debtor relief
proceedings.
24. NOTICE. Except as otherwise provided in this Sublease, all notices,
demands, requests, consents, approvals or other communications (for the purposes
of this paragraph, collectively called "Notices") required or permitted to be
given hereunder or which are given with respect to this Sublease shall be in
writing and shall be sent by registered or certified mail, return receipt
requested, postage prepaid, or delivered by hand delivery or by a nationally
recognized overnight courier service addressed as follows:
32
TO SUBLESSOR: At the Premises, with a copy to Michael Profita, Esq.,
Huttle Profita LLC, 300 Glenpointe Centre East, Teaneck, NJ 07666.
TO SUBTENANT: At the address set forth on page 1 of this Agreement.
Notices given as provided herein shall be deemed given two days after
the date of registration or certification as to mailings, or as to overnight and
hand delivery, on the day of delivery.
STRATEGIC BUSINESS AND TECHNOLOGY
SOLUTIONS, LLC, SUBLESSOR
By: /s/ JOHN KLEIN
----------------------------------
JOHN KLEIN, MANAGING MEMBER
CYBEAR, INC., SUBTENANT
By: /s/ [ILLEGIBLE]
------------------------------------
33
7TH FLOOR LAYOUT
FINAL AS OF APRIL 23, 1998
CYBEAR
EXHIBIT A
EXHIBIT "B"
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS:
The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors and public parts of the building shall not be obstructed or
encumbered by Lessee or used by Lessee for any purpose other than ingress and
egress.
2. PROJECTIONS FROM BUILDING:
No equipment or other fixtures shall be attached to the outside walls
or the windowsills of the building or otherwise affixed so as to project from
the building, without the prior written consent of Lessor.
3. SIGNS:
No sign or lettering shall be affixed by Lessee to any part of the
outside of the premises, or any part of the inside of the premises so as to be
clearly visible from the outside of the premises, without the prior written
consent of Lessor. Lessor shall place Lessee's name 1) next to the primary entry
door to the Lessee's building standard sign premises and on the touchscreen
directory in the lobby of the building, 2) in conformance with the building
standards. Lessee shall not have the right to have additional names placed on
the directory without Lessor's prior written consent.
4. WINDOWS
Windows in the premises shall not be covered or obstructed by Lessee.
No bottles, parcels, bookshelves or other articles shall be placed on the
windowsills, in the halls, or in any other part of the building other than the
leased premises.
EXHIBIT "B"
RULES AND REGULATIONS
5. FLOOR COVERING:
Lessee shall not lay linoleum or other similar floor covering so that
the same shall come in direct contact with the floor of the premises. If
linoleum or other similar floor covering is desired to be used, an interlining
of builder's deadening felt first shall be fixed to the floor by a paste or
other material that may easily be removed with water, the use of cement or other
similar material being expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING:
Lessee shall not make, or permit to be made, any unseemly or disturbing
noises and shall not interfere with other tenants or those having business with
them.
7. LOCKS: KEYS:
Two additional keys are provided for each primary entrance door. No
additional locks or bolts of any kind shall be placed on any of the doors by
Lessee. Lessee shall, on the termination of Lessee's tenancy, deliver to
Lessor, all keys to any space within the building, either furnished to or
otherwise procured by lessee, and in the event of the loss of any keys
furnished, Lessee shall pay to Lessor the cost thereof.
8. MOVEMENT OF FURNITURE FREIGHT OR BULKY MATTER:
The carrying in or out of freight, furniture, or bulky matter of any
description must take place during such hours as lessor may from time to time,
reasonably determine and only after advance notice to the Lessor. The persons
employed by Lessee for such work must be reasonably acceptable to the Lessor.
Lessee may, subject to such provisions, move freight, furniture, bulky matter,
and other material into or out of the premises on Saturdays between the hours of
9:00 a.m. and l:00 p.m., provided Lessee pays additional costs, if any, incurred
by Lessor for elevator operators or security guards, and for other expenses
occasioned by such activity of Lessee If, at least five (5) days prior to such
activity, Lessor requests that lessee deposit with lessor, as security for
Lessee's obligation to pay such additional costs, a sum which Lessor reasonably
estimates to be the amount of such additional cost, the Lessee shall deposit
such amount with Lessor as security for such
cost.
EXHIBIT "B"
RULES AND REGULATIONS
9. SAFES AND OTHER HEAVY EQUIPMENT:
Lessor reserves the right to prescribe the weight and position of all
safes and other heavy equipment so a: to distribute properly the weight thereof
and to prevent any unsafe condition from arising. Business machines and other
equipment shall be placed and maintained by Lessee at Lessee's expense in
settings sufficient in Lessor's reasonable judgement to absorb and prevent
unreasonable vibration, noise and annoyance.
10. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS:
Lessor shall not be responsible to Lessee for the non-observance or
violation of any of these rules and regulations by any other tenant.
11. AFTER HOUR USE:
Lessor reserves the right to exclude from the Building between the
hours of 6:00 p m. and 6:00 a.m. and at all hours on Saturdays, Sundays and
Building Holidays, all persons who do not present a pass to the building signed
by the Lessee. Each Lessee shall be responsible for all persons for whom such a
pass is issued and shall be liable to the Lessor for the acts of such persons.
12. PLUMBING FACILITIES USE
Lessee shall not use the Office Building's plumbing facilities for any
purpose other than that for which they were constructed and will not permit any
foreign substance of any kind to be thrown therein and the expense of repairing
any breakage, seepage or damage, no matter where occurring, resulting from a
violation of this provision by Lessee or Lessee's servants, employees, agents,
invitees or licensees shall be borne by Lessee. Wasteful and excessive or
unusual use or misuse of Building Standard Office Electrical Service, Water,
Sewer or other utilities is prohibited.
13. VEHICLES:
No bicycles, mopeds, motorcycles or other vehicles of any kind shall be
brought into or kept in, on or about the Premises, Office Building or Office
Building Area, except in those locations specifically designated by Lessor for
same.
EXHIBIT "B"
RULES AND REGULATIONS
14. ANIMALS:
No animal of any kind's shall be brought into, kept in, on or about the
Premises, Office Building or Office Building Area
15. LESSOR'S RIGHTS:
Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including, but not limited to, the following rights which are
reserved to Lessor for its purpose in operating the Office Building and Office
Building Area:
a) the exclusive right to the use of the name of the Office Building
for all purposes, except that Lessee may use the name as its
business address and for no other purpose;
b) the right to change the name of the Office Building at any time and
from time to time, without incurring any liability to Lessee for so
doing;
c) the right to install and maintain a sign or signs on the exterior
of the Office Building and/or anywhere in the Office Building Area;
d) the exclusive right to use or dispose of the use of all or any part
of the roof of the Office Building and Office Building Area;
e) the right to grant anyone the right to conduct any particular
business or undertaking in the Office Building or Office Building
Area.
16. MOVING:
Moving in and out of the Office Building must be coordinated with the
Lessor. At the discretion of the Lessor, moving may be required to be done under
the supervision of management personnel. No furniture will be moved in the
Office Building's elevators without the permission of the Lessor and until
necessary pads have been installed.
EXHIBIT "C"
BUILDING HOLIDAYS
BUILDING HOLIDAYS SHALL BE AS FOLLOWS:
1. Memorial Day
2. Independence Day
3. Labor Day
4. Thanksgiving Day and the day after
5. Christmas Day
6. New Year's Day
7. Monday before or Friday after if July 4th falls on Tuesday or Thursday.
EXHIBIT "D"
CLEANING SERVICES
NIGHTLY SERVCIES -RESTROOM AREA:
1. Sweep, mop and sanitize floors
2. Wash and polish mirrors, powder shelves, bright work, etc.
3. Clean and sanitize commodes, toilet seats, wash basins and urinals
4. Dust partitions, tile walls, dispensers, doors and receptacles
5. Empty and clean towel and sanitary disposal receptacles
6. Remove wastepaper and refuse to a designated area in the premises
7. Fill toilet tissue, soap and towel dispenser with supplies as needed
OCCASIONAL SERVICE-RESTROOM AREA:
1. Wash partitions, tile walls, enamel surface and power scrub lavatory
floors
2. High dust walls and ceilings
3. Dust exterior of lighting fixtures
ENTRANCE LOBBIES AND PUBLIC AREAS AS REQUIRED (NIGHTLY):
1. Sweep and damp mop (as required) flooring and vacuum carpeting
2. Clean cigarette urns and replace sand or water
3. Clean elevator cabs
4. Clean entrance glass doors (daily)
5. Clean lobby glass other than doors as required.