LEASE
XX XXXXXX HOLDINGS, L.L.C.,
LANDLORD
TO
VYTERIS, INC.,
TENANT
DEMISED PREMISES:
A PORTION OF THE FIRST (1ST) FLOOR
AT
00-00 XXXXXXX XXXXX
XXXX XXXX, XX 00000
LEASE
LEASE dated as of December 14, 2004, 2005, between XX Xxxxxx Holdings,
L.L.C., a, New Jersey limited liability company, having an office at 00 Xxxxxxxx
Xxxxxxxx, Xxxxxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "LANDLORD")
and Vyteris, Inc., a Delaware corporation having an office at 00-00 Xxxxxxx
Xxxxx, Xxxx Xxxx, Xxx Xxxxxx 00000 (hereinafter referred to as "TENANT").
WITNESSETH:
ARTICLE 1
DEMISE, DEMISED PREMISES, TERM, RENTS
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 00-00
Xxxxxxx Xxxxx, in the Borough of Fair Lawn, County of Bergen, and State of New
Jersey (hereinafter referred to as the "BUILDING"), on the parcel of land more
particularly described in EXHIBIT A (hereinafter referred to as the "LAND"), for
the term hereinafter stated, for the rents hereinafter reserved and upon and
subject to the conditions (including limitations, restrictions and reservations)
and covenants hereinafter provided. Each party hereby expressly covenants and
agrees to observe and perform all of the conditions and covenants herein
contained on its part to be observed and performed.
1.02 The premises hereby leased to Tenant are a portion of the first
floor of the Building consisting of approximately 26,255 square feet, as shown
on the floor plan annexed hereto as EXHIBIT B. Said premises together with all
fixtures and equipment which at the commencement, or during the term, of this
Lease are thereto attached (except items not deemed to be included therein and
removable by Tenant as provided in Article 14) constitute and are hereinafter
referred to as the "DEMISED PREMISES". The Demised Premises shall also include
the nonexclusive right, in common with other tenants of the Building, to use the
common areas of the Building and the Land. On the commencement Date, Landlord
shall deliver the Demised Premises vacant, broom clean and in compliance with
all applicable laws. codes and regulations.
1.03 The term of this Lease, for which the Demised Premises are
hereby leased, shall commence on a date (herein referred to as the "COMMENCEMENT
DATE") which shall be the earlier of (i) the day on which "TENANT IMPROVEMENTS"
(as defined in Article 4) has been substantially completed or (ii) the day
Tenant, or anyone claiming under or through Tenant, first occupies the Demised
Premises for the conduct of its business. The teen of this Lease shall end at
11:59 P.M. of the last day of the calendar month in which occurs the day
preceding the Tenth (10th) Year and Third (3rd) Month anniversary of the
Commencement Date, which ending date is hereinafter referred to as the
"EXPIRATION DATE", or shall end on such earlier date upon which said term may
expire, be cancelled, or be terminated pursuant to any of the conditions or
covenants of this Lease or pursuant to law. Landlord and Tenant expect the
Commencement Date to be on or about January 1, 2005 ("TARGET COMMENCEMENT
DATE"). In the event the Commencement Date shall not have occurred on or before
the date which is ninety (90) days following the Target Commencement Date,
Tenant shall have the right to terminate this Lease upon written notice to
Landlord given at any time after ninety (90) days following the Target
Commencement Date and before the Commencement Date. Tenant shall take possession
of and occupy the entire Demised Premises no later than sixty (60) days
following the Commencement Date. Following the Commencement Date, Landlord shall
deliver to Tenant a "COMMENCEMENT LETTER" setting forth the Commencement Date
and the Expiration Date. If the Tenant does not agree with the Commencement Date
and/or Expiration Date set forth in the Commencement
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Letter, Tenant shall notify Landlord within ten (10) days of its receipt of the
Commencement Letter. If within fifteen (15) days after Landlord's receipt of
Tenant's notice, Landlord and Tenant cannot agree on the Commencement Date
and/or the Expiration Date, then the Commencement Date and the Expiration Date
shall be determined by arbitration in the manner provided in Article 34. Payment
of Rent shall commence on the Commencement Date and payment of Rent shall not be
contingent upon Tenant's receipt of or agreement with the Commencement Letter.
1.04 Tenant hereby covenants and agrees to pay the "rents" reserved
under this Lease, for the term thereof, as follows:
(a) "FIXED RENT" as follows:
Annual Amount Monthly Amount Amount per SF Commencing Ending
$185,630.77 $10,312.82* $7.0703 Commencement Last Day of
Date Month 3
$185,630.77 $20,625.64** $7.0703 First Day of Last Day of
Month 4 Month 6
$185,630.77 $10,312.82* $7.0703 First Day of Last Day of
Month 7 Month 9
$185,630.77 $20,625.64** $7.0703 First Day of Last Day of
Month 10 Month 12
$247,507.70 $20,625.64** $9.4270 First Day of Last Day of
Month 13 Month 24
$277,367.22 $23,113.93*** $10.5643 First Day of Last Day of
Month 25 Month 48
$292,743.25 $24,395.27 $11.15 First Day of Last Day of
Month 49 Month 60
$336,064.00 $28,005.33 $12.80 First Day of Last Day of
Month 61 Month 123
* = 1/2 month's rent
** = $11.15 x 22,198 sq ft
*** = $11.15 x 22,198 sq ft + $7.36 x 4,057 sq ft
all of which shall be payable in equal monthly installments in advance on the
first day of each and every calendar month during the term of this Lease (except
that Tenant shall pay, upon the
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execution and delivery of this Lease by Tenant, the sum of $10,312.82, to be
applied against the first rents becoming due under this Lease), and
(b) "ADDITIONAL RENT" consisting of all such other sums of
money as shall become due from and payable by Tenant to Landlord hereunder (for
default in payment of which Landlord shall have the same remedies as for a
default in payment of fixed rent), all to be paid to Landlord at its office, or
such other place, or to such agent and at such place, as Landlord may designate
by notice to Tenant, in lawful money of the United States of America.
1.05 Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction or setoff whatsoever except
as expressly provided in this Lease.
1.06 If the Commencement Date occurs on a day other than the first
day of a calendar month, the fixed rent for such calendar month shall be
prorated and the balance of the first month's fixed rent theretofore paid shall
be credited against the next monthly installment of fixed rent.
1.07 Tenant acknowledges that it has no rights to any development
rights, "AIR RIGHTS" or comparable rights appurtenant to the Land and Building,
and consents, without further consideration, to any utilization of such rights
by Landlord and agrees to promptly execute and deliver any instruments which may
be requested by Landlord, including instruments merging zoning lots, evidencing
such acknowledgment and consent.
ARTICLE 2
USE
2.01 Tenant shall use and occupy the Demised Premises for general
offices and for the manufacturing, production and warehousing of pharmaceutical
products and for no other
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purpose ("PERMITTED USE"). Specifically, Tenant agrees the Demised Premises
shall not be used for research and development purposes.
2.02 Landlord is responsible to obtain a Temporary Certificate of
Occupancy ("TCO") or Certificate of Occupancy ("COO") for the Demised Premises
and is responsible, at Landlord's sole cost and expense, for any renovations,
improvements or repairs which may be required for the issuance of a TCO or COO.
If any other governmental license or permit or other license or permit required
for the mere occupancy of the Demised Premises for the purposes set forth in
Section 2.01, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof; and if failure to secure
such license or permit would in any way adversely affect Landlord, Tenant, at
its expense, shall duly procure and thereafter maintain such license or permit
and submit the same for inspection by Landlord. Tenant shall at all times comply
with the terms and conditions of each such license or permit. Upon Tenant's
request and at Tenant's expense, Landlord shall join in the application for any
licenses, permits, approvals and authorizations (except for an application to
change the Certificate of Occupancy) whenever such joining by Landlord shall be
required by any governmental agency having jurisdiction.
2.03 Tenant acknowledges that neither Landlord nor its agents or
employees have made any representations or warranties as to the suitability or
fitness of the Demised Premises for the conduct of Tenant's business or for any
other purpose except as expressly set forth herein.
2.04 Tenant shall not at any time use or occupy, or suffer or permit
anyone to use or occupy, the Demised Premises, or do or permit anything to be
done in the Demised
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Premises, in violation of the Certificate of Occupancy for the Demised Premises
or for the Building.
2.05 Tenant represents and warrants that upon commencement of this
Lease and throughout the term of this Lease as it may be extended, all uses
(whether or not such use is stated in this Article), including, but not limited
to all operations, activities, producing, manufacturing, warehousing, storing,
or transacting of business which is conducted by Tenant at the Demised Premises
are and shall be in full compliance with all applicable Federal, State and local
laws, rules, regulations and guidelines. Furthermore, Tenant hereby agrees to
indemnify and hold Landlord harmless from and against any loss, claim, damage,
cost or expense to persons and to property including, without limitation,
attorney's fees and claims or legal actions brought by any third party, which
Landlord may incur as the result of any violation of this representation and
warranty. Tenant acknowledges that Landlord will suffer damages in the event any
other tenant in the Building is harmed or claims to be harmed as a result of
Tenant's use (whatever it may be) at the Demised Premises. Tenant hereby agrees
to indemnify and hold Landlord harmless from and against any loss, claim,
damage, cost or expense to other tenants in the Building including, but not
limited to, threatened or actual termination by other tenants of its lease for
premises in the Building because of damages, whether actual or alleged, arising
from Tenant's use (whatever it may be) at the Demised Premises.
ARTICLE 3
FAILURE TO GIVE POSSESSION
3.01 If the Demised Premises shall not be available for occupancy by
Tenant on the specific date hereinbefore designated for the commencement of the
term of this Lease for any reason whatsoever, then this Lease shall not be
affected thereby but, in such case, said specific date shall be deemed to be
postponed until the date when the Demised Premises or the additional
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space, as the case may be, shall be available for occupancy by Tenant, and
Tenant shall not be entitled to possession of the Demised Premises or the
additional space until the same are available for occupancy by Tenant; provided,
however, Tenant shall have no claim against Landlord, and Landlord shall have no
liability to Tenant by reason of any such postponement of said specific date,
and the parties hereto further agree that any failure to have the Demised
Premises or such additional space available for occupancy by Tenant on said
specific date or on the Commencement Date shall in no way affect the obligations
of Tenant hereunder nor shall the same be construed in any way to extend the
term of this Lease.
ARTICLE 4
PREPARATION OF THE DEMISED PREMISES
4.01 Scheduled Construction Period; Construction Responsibility.
Within sixty (60) days after receipt of all necessary permits ("SCHEDULED
CONSTRUCTION PERIOD"), Landlord shall complete the Tenant Improvements in
accordance with the Final Plans, in a good and workmanlike manner, free of liens
and encumbrances, and in accordance with all applicable governmental
requirements and thereafter shall cause a certificate of occupancy (or
continuing certificate of occupancy) to be issued for the Demised Premised.
Landlord and Tenant agree that Landlord shall be responsible for the
construction of the Tenant Improvements, as hereinafter defined, only to the
office space portions of the Demised Premises at Landlord's cost and expense
subject to the Construction Cost provisions of Section 4.09, below. Landlord and
Tenant agree that the Tenant Improvements specified as Section 4.04 (a) through
(f), below, shall be completed at Landlord's sole cost and expense and which
cost shall not be included in the Construction Allowance as defined hereinafter.
Landlord and Tenant further agree that Tenant shall be responsible for the
construction of Tenant's Work, as hereinafter defined in Section 4.11, below,
including all construction and improvement in the manufacturing space at
Tenant's
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cost and expense. Landlord confirms that Tenant has provided preliminary
information with regard to Tenant's Work, and Landlord agrees that it shall not
unreasonably withhold or delay approval of Tenant's final plans provided they
conform to the initial submissions. Landlord confirms that Tenant has provided
preliminary information with regard to Tenant's Work as set forth on Exhibit H
annexed hereto and made a part hereof ("TENANT'S WORK PLANS"). Landlord agrees
that it shall not unreasonably withhold or delay approval of Tenant's final
plans provided they conform to the Tenant's Work Plans.
4.02 The Preliminary Plan. A New Jersey licensed architect (the
"ARCHITECT") shall be retained by the Landlord to prepare a preliminary plan
(the "PRELIMINARY PLAN") for the layout and construction of improvements to the
Demised Premises in connection with Tenant's initial occupancy thereof (the
"TENANT IMPROVEMENTS"). The Preliminary Plan shall be approved by Landlord and
Tenant.
4.03 Proposed Plans; Final Plans. Following the execution of this
Lease, Landlord will cause the Architect to prepare proposed plans and
specifications for the construction of the Tenant Improvements (the "PROPOSED
Plans"), in compliance with the requirements of this Article. The Architect
engaged by Landlord shall be under the direction of Landlord.
4.04 The Proposed Plans shall (a) be consistent with the Preliminary
Plan, and (b) include all information and specifications necessary for Landlord
to complete construction of the Tenant Improvements, including, without
limitation, the following as specified as (a) through (f) in this Section, which
shall be completed at Landlord's sole cost and expense and which cost shall not
be included in the Construction Allowance as defined in Section 4.09, below:
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(a) Construct a demising wall between the Demised Premises
and another tenant of the Building, creating a common area for access and use by
any tenant of the Building.
(b) Provide separate Men's and Women's bathrooms for the
exclusive use of Tenant within the Premises;
(c) Repair existing windows where necessary throughout the
Demised Premises;
(d) Re-glaze windows as necessary;
(e) Remove existing ceiling grid;
(f) Prepare and seal all floor areas in the warehouse space;
4.05 Landlord will submit the Proposed Plans to Tenant on or before
thirty (30) days from the execution of this Lease (the "PLANS SUBMISSION DATE").
4.06 The Proposed Plans shall be subject to mutual approval by
Landlord and Tenant, which shall not be unreasonably withheld, delayed or
conditioned. If either party disapproves the Proposed Plans, it shall state the
reasons for such disapproval in writing, and Landlord shall cause the Architect
to promptly make any changes in the Proposed Plans reasonably required by either
party. Tenant shall approve or disapprove with comments in writing to Landlord
to such plans within ten (10) calendar days of submission or same shall be
deemed approved. The Proposed Plans, as finally approved by Tenant, are referred
to hereinafter as the "FINAL PLANS."
4.07 Construction By Landlord. Landlord shall complete the Tenant
Improvements in accordance with the Final Plans on or before the end of the
Scheduled Construction Period, as extended for an additional period of time
equal to delays beyond
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Landlord's reasonable control, e.g., unusual scarcity of or inability to obtain
labor or materials, union or other labor difficulties, casualty or any other
cause, excluding financial, beyond Landlord's reasonable control. Landlord shall
have the right, however:
(a) to make substitutions of material of equivalent grade
and quality when and if any specified material shall not be readily and
reasonably available; and
(b) to make changes necessitated by conditions met in the
course of construction, provided that Tenant's approval of any substantial
change shall first be obtained (which approval shall not be unreasonably
withheld or delayed so long as there shall be general conformity with the Final
Plans).
4.08 Promptly following the date of this Lease, Landlord shall seek
approval by the Zoning Board or Planning Board or other appropriate local
authority to pave the existing grass area in the front of the Building to
accommodate Tenant with twenty-five (25) additional parking spaces within close
proximity to the Building's entrance (the "PARKING EXPANSION"). Construction of
the Parking Expansion is subject to obtaining said approvals. Landlord shall be
responsible for the entire cost and expense of the approval process, plans,
permits and construction of the Parking Expansion. Landlord shall prepare a
reasonable, detailed proposed budget for the Parking Expansion, the total of all
costs being hereinafter referred to as the "PARKING EXPANSION COST." Landlord
and Tenant acknowledge that the fixed rents agreed to in this Lease are
predicated on the assumption that the Parking Expansion shall be completed. If
the Parking Expansion is not approved by the local authority, thus prohibiting
the completion of the Parking Expansion, then the amount of $0.25 per square
foot, which amount is $65,637.50 over the term of the Lease, less amounts
actually expended (which are substantiated by paid receipts) by Landlord in
connection with the Parking Expansion, shall be credited to Tenant in
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the form of credits against Tenant's monthly fixed rent, amortized over the
remaining term of the Lease. If the number of approved additional parking spaces
is less than the twenty-five (25) requested, then the amount of credit would be
adjusted proportionately.
4.09 Construction Costs. Landlord shall contribute toward the cost of
the Tenant Improvements in the amount which shall not exceed $5.00 per square
foot based on the entire 26,255 square feet of the Premises or a sum of no more
than $131,275.00 ("CONSTRUCTION ALLOWANCE"). Such contribution shall be applied
to hard costs of improvements, i.e., architectural, construction, alteration,
painting, carpeting. If the cost of Landlord's Work exceeds $131,275.00, any and
all such excess cost shall be at the sole cost and expense of Tenant. If the
cost of Landlord's Work is less than $131,275.00, Landlord shall be obligated to
expend only the actual cost of Landlord's Work, and Tenant waives any right and
claim to any monetary amount which is the difference between the actual cost of
the Tenant Improvements and $131,275.00. Tenant will not be charged any Landlord
supervisory cost or review fee for Landlord's Work.
4.10 Changes in the Final Plans. All changes in the Final Plans shall
be subject to the approval of Landlord, and if the change is proposed by the
Landlord, the Tenant. If Landlord and Tenant, as the case may be, approves any
change in the Final Plans, Landlord shall construct the Tenant Improvements in
accordance with such change and provide Tenant with a statement of the
additional cost and delay associated with such change prior to Tenant agreeing,
in writing, to such change orders, and Tenant shall pay any increase in the cost
of constructing the Tenant Improvements resulting from such change as set forth
in such statement. Any delay in the date of Substantial Completion, as defined
below, by reason of any change in the Final
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Plans initiated or requested by Tenant and as identified by Landlord in its
statement set forth above shall be deemed a Tenant Delay under Subsection 4.12
(c).
4.11 Tenant's Work.
(a) All data and telecommunications wiring necessary to
equip the Demised Premises for Tenant's occupancy shall be furnished and
installed by Tenant. Tenant shall comply with the provisions this Lease in
connection with any work which it performs pursuant to this Section. All such
work shall be subject to coordination by Landlord and without disruption to
service to other tenants or interference with the quiet enjoyment of other
tenants. Tenant shall have access to the Demised Premises prior to the
Commencement Date for purposes of completing such work; subject to a separate,
written, Early Entry License Agreement in the form attached hereto as Exhibit D.
(b) During the Term of this Lease, at Tenant's request,
Landlord shall allow Tenant to locate and install, at Tenant's sole cost and
expense, a generator for Tenant's own exclusive use. The exact location of the
generator will be dependent upon specifications at the time the type and model
of generator is identified by tenant and specifications provided to Landlord.
However, by way of example only, a possible location is that portion of the Land
as indicated on Exhibit G, Generator Location, attached hereto. Installation of
a generator is subject to obtaining any and all governmental approvals. Such
generator shall be deemed the property of Landlord under the provisions of
Section 14.01, below. Tenant shall be responsible to obtain any permits and
approvals required in connection with said generator including the costs
thereof, and all installation and related work shall be accomplished under the
provisions of Article 13, below. At the time the generator is to be installed,
Landlord will provide a site plan indicating the location of the generator pad
based on specifications provided by Tenant
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(c) As Tenant's Work, Tenant shall be responsible, at
Tenant's sole cost and expense, to plan, build and construct all alterations,
installations, improvements and renovations to the manufacturing space of the
Demised Premises in full compliance with the provisions of Article 13, below.
4.12 Substantial Completion. The Tenant Improvements shall be deemed
substantially completed ("SUBSTANTIAL COMPLETION" or "SUBSTANTIALLY COMPLETED")
when the Tenant Improvements have been completed in accordance with the Final
Plans, except for:
(a) items of finishing and construction which are not
necessary to make the Demised Premises reasonably tenantable for
Tenant's use as stated herein;
(b) items not then completed because of:
(i) failure by Tenant to provide the Proposed Plans
by the Plans Submission Date, or to promptly make changes in the
Proposed Plans reasonably required by Landlord in connection with the
approval thereof, or to otherwise perform its obligations under this
Lease; or
(ii) changes in the Final Plans requested by Tenant
to the extent of the time set forth in the Landlord's statement given
after change orders are agreed to in writing by Tenant; or
(iii) delays, not caused by Landlord, in furnishing
materials or procuring labor required for installations or work in the
Demised Premises which are not customarily provided by Landlord for
office tenants in the Building, provided that Tenant shall be notified
of Landlord's good faith estimate of the anticipated delay promptly
after discovery thereof by Landlord, and shall be given an opportunity
to specify alternative materials or requirements customarily provided by
Landlord for office tenants; or
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(iv) the performance of any work or activity in the
Demised Premises by Tenant or any of its employees, agents or
contractors.
(c) Delays resulting from the occurrences described in
Subsection 4.14 (b)(i), (ii) or (iv) are sometimes hereinafter referred to as
"TENANT DELAYS." In the event of any Tenant Delay, Tenant acknowledges that the
Commencement Date of the Lease Term may occur (in Landlord's sole, but
reasonable discretion,) and Tenant's obligation to pay Rent may begin, before
the Demised Premises can be occupied by Tenant. Landlord agrees that in the
event of a Tenant Delay occurring under subsection 4.14 (b)(i), (ii) or (iv), it
will provide Tenant with notice of such Tenant Delay, which notwithstanding the
notice provisions of this Lease, may be by telephone, in person, fax, email, or
other means of communication. Tenant will have two calendar days in which to
notify Landlord, which notwithstanding the notice provisions of this Lease, may
be by telephone, in person, fax, email, or other means of communication, of any
proposed alternative materials, requirements, or means of avoiding the Tenant
Delay. Landlord and Tenant agree to use their best efforts to implement Tenant's
reasonably proposed alternative materials, requirements or means of avoiding the
Tenant Delay, however, Landlord will not be responsible for the Tenant Delay if
such means do not succeed.
4.13 Demised Premises in Satisfactory Condition. If and when Tenant
shall take actual possession of the Demised Premises to prepare the same for
Tenant's occupancy, it shall be conclusively presumed that the same were in
satisfactory condition (except for latent defects) as of the date of such taking
of possession, unless within thirty (30) days after the Commencement Date Tenant
shall give Landlord notice specifying the respects in which the Demised Premises
were not in satisfactory condition.
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4.14 Punchlist.
(a) Upon Substantial Completion of the Tenant Improvements,
Landlord shall notify Tenant's Construction Representative in writing. Within
two (2) business days after receipt of Landlord's notice, Tenant's Construction
Representative shall inspect the Tenant Improvements with Landlord and
Landlord's general contractor. At the time of such inspection, the parties shall
prepare a detailed punchlist of all incomplete, defective or nonconforming work,
which are either clearly visible, observable, or susceptible of detection or
reasonably discoverable by inspection of non-visible, non-observable areas and
systems. If Tenant later discovers any incomplete, defective or non-conforming
work which was not visible, observable or susceptible of detection at the time
of such inspection, and Tenant gives notice of the specific incomplete,
defective or non-conforming work to Landlord at least sixty (60) days after the
Commencement Date, Landlord shall cause the general contractor to promptly
correct the relevant incomplete, defective or non-conforming work, at Landlord's
expense and in a manner which minimizes disruption to Tenant's business.
(b) Landlord shall cause all punchlist items to be promptly
completed after the date of the inspection in a manner which minimizes
disruption to Tenant's business.
ARTICLE 5
ADJUSTMENTS OF RENT
5.01 Tax Payments. For the purpose of Sections 5.01 -5.06, 5.11:
(a) "TAXES" shall mean the real estate taxes and assessments
and special assessments imposed upon the Building and the Land including,
without limitation, any assessments for public improvement or benefit to the
Building or Land, or the locality in which the Land is situated, such as
Business Improvement District taxes and assessments. If at any time during the
term of this Lease the methods of taxation prevailing at the commencement of
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the term hereof shall be altered so that in lieu of or as an addition to or as a
substitute for the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and the
improvements thereon, there shall be levied, assessed or imposed (i) a tax,
assessment, levy, imposition or charge wholly or partially as capital levy or
otherwise on the rents received therefrom, or (ii) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon the Demised
Premises and imposed upon Landlord, or (iii) a license fee measured by the rents
payable by Tenant to Landlord, then all such taxes, assessments, levies,
impositions or charges, or the part thereof so measured or based, shall be
deemed to be included within the term "TAXES" for the purposes hereof.
The term "TAXES" shall not include any income, franchise, transfer, inheritance,
capital stock or other similar tax imposed on Landlord unless, due to a future
change in the method of taxation, an income, franchise, transfer, inheritance,
capital stock or other tax shall be levied against Landlord in substitution for
any tax or increase therein which would otherwise constitute "TAXES", as defined
in the first sentence of paragraph (a), in which event such income, franchise,
transfer, inheritance, capital stock or other tax shall be deemed to be included
in the term "TAXES" but any such income or similar tax shall be computed as if
the Building and the Land were the only property of Landlord.
If, by law, any assessment may be paid in installments, then, for the purposes
hereof (i) such assessment shall be deemed to have been payable in the maximum
number of installments permitted by law and (ii) there shall be included in
Taxes, for each Tax Year in which such installments may be paid, the
installments of such assessment so becoming payable during such Tax Year,
together with any interest thereon payable during such Tax Year.
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(b) "TAX YEAR" shall mean the fiscal year for which Taxes
are levied by the governmental authority;
(c) "TENANT'S PROPORTIONATE SHARE" shall mean for purposes
of this Lease and all calculations in connection herewith 24.92%, which has been
computed on the basis of a fraction, the numerator of which is the agreed
rentable square foot area of the Demised Premises as set forth below (which
rentable square foot area is hereinafter sometimes referred to as the
"MULTIPLICATION FACTOR") and the denominator of which is the agreed rentable
square foot area of the Building as set forth below. The parties agree that the
rentable square foot area of the Demised Premises shall be deemed to be
approximately 26,255 square feet and that the agreed rentable square foot area
of the Building shall be deemed to be approximately 105,367 square feet
(hereinafter referred to as the "BUILDING AREA").
(d) "TENANT'S PROJECTED SHARE OF TAXES" shall mean the sum
of the Tax Payment (as hereinafter defined), if any, payable by Tenant for the
immediately prior Tax Year divided by twelve (12) and payable monthly by Tenant
to Landlord as additional rent.
5.02 Tenant shall pay, as additional rent, Taxes in an amount equal
to Tenant's Proportionate Share of the Taxes for each Tax Year or portion of a
Tax Year. (The amount payable by Tenant is hereinafter referred to as the "TAX
PAYMENT"). The Tax Payment and the Tax Year shall be appropriately prorated, if
necessary, to correspond with that portion of a Tax Year occurring within the
Term of this Lease. The Tax Payment shall be payable by Tenant within ten (10)
days after receipt of a demand from Landlord, which demand shall be accompanied
by a copy of the tax xxxx together with Landlord's computation of the Tax
Payment ("TAX STATEMENT"). If the Taxes for any Tax Year are payable to the
taxing authority on an
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installment basis, Landlord may serve such demands upon, and the Tax Payment for
such Tax Year shall be payable by Tenant, on a corresponding installment basis.
5.03 Notwithstanding the fact that the increase in rent is measured
by an increase in Taxes, such increase is additional rent and shall be paid by
Tenant as provided herein regardless of the fact that Tenant may be exempt, in
whole or in part, from the payment of any taxes by reason of Tenant's diplomatic
or other tax exempt status or for any other reason whatsoever.
5.04 Only Landlord shall be eligible to institute tax reduction or
other proceedings to reduce the assessed valuation of the Land and Building.
Should Landlord be successful in any such reduction proceedings and obtain a
rebate or a reduction in assessment for periods during which Tenant has paid or
is obligated to pay Tenant's Proportionate Share of Taxes then either (a)
Landlord shall, in the event a rebate is obtained, return Tenant's Proportionate
Share of such rebate to Tenant after deducting Landlord's reasonable,
out-of-pocket expenses which shall be allocated to the Tax Year(s) to which they
pertain, including without limitation, attorneys' fees and disbursements in
connection with such rebate (such expenses incurred with respect to a rebate or
reduction in assessment being hereinafter referred to as "TAX EXPENSES"), or,
(b) if a reduction in assessment is obtained prior to the date Tenant would be
required to pay Tenant's Proportionate Share of such increase in Taxes, Tenant
shall pay to Landlord, upon written request, Tenant's Proportionate Tax Share of
such Tax Expenses.
5.05 Commencing on the Commencement Date, Tenant shall pay to
Landlord, as additional rent, Tenant's Projected Share of Taxes. Upon each date
that a Tax Payment or an installment on account thereof shall be due from Tenant
pursuant to the terms of Section 5.02 hereof, Landlord shall apply the aggregate
of the installments of Tenant's Projected Share of
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Taxes then on account with Landlord against the Tax Payment or installment
thereof then due from Tenant. In the event that such aggregate amount shall be
insufficient to discharge such Tax Payment or installment, Landlord shall so
notify Tenant in a demand served upon Tenant pursuant to the terms of Section
5.02, and the amount of Tenant's payment obligation with respect to such Tax
Payment or installment pursuant to Section 5.02 shall be equal to the amount of
the insufficiency. If, however, such aggregate amount shall be greater than the
Tax Payment or installment, Landlord shall forthwith either (a) pay the amount
of excess directly to Tenant concurrently with the notice or (b) permit Tenant
to credit the amount of such excess against the next payment of Tenant's
Projected Share of Taxes due hereunder and, if the credit of such payment is not
sufficient to liquidate the entire amount of such excess, Landlord shall then
pay the amount of any difference to Tenant.
5.06 Anything in Sections 5.01 through 5.06 to the contrary
notwithstanding, in no event whatsoever shall the fixed rent be reduced below
the fixed rent initially set forth in Section 1.04(a) hereof as same may be
increased by provisions of this Lease other than Sections 5.01 through 5.06.
5.07 Expense Payments. For purposes of Sections 5.07 - 5.12
(a) "OPERATING EXPENSES" shall mean any or all expenses
incurred by Landlord in connection with the operation, management, maintenance
and repair of the Building including all expenses incurred as a result of
Landlord's compliance with any of its obligations hereunder and such expenses
shall include: (i) salaries, wages, medical, surgical and general welfare
benefits (including group life insurance), pension payments and other fringe
benefits of employees of Landlord engaged in the operation and maintenance of
the Building (the salaries and other benefits aforesaid of such employees
servicing the Building shall be comparable to
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those of employees servicing buildings similar to the Building, located in the
same municipality as the Building); (ii) payroll taxes, worker's compensation,
uniforms and dry cleaning for the employees referred to in subdivision (i);
(iii) the cost of all charges for steam, heat, ventilation, air conditioning and
water (including sewer rental) furnished to the public portions of the Building
and/or used in the operation of all of the service facilities of the Building
and the cost of all charges for electricity furnished to the public and service
areas of the Building and/or used in the operation of all of the service
facilities of the Building including any taxes on any of such utilities; (iv)
the cost of all charges for rent, casualty, war risk insurance (if obtainable
from the United States government) and of liability insurance for the Building
to the extent that such insurance is required to be carried by Landlord under
any superior lease or superior mortgage or if not required under any superior
lease or superior mortgage then to the extent such insurance is carried by
owners of buildings comparable to the Building; (v) the cost of all building and
cleaning supplies for the common areas of the Building and charges for telephone
for the Building; (vi) the cost of all charges for management, security,
cleaning and service contracts for the Building (if no managing agent is
employed by Landlord, there shall be included in Operating Expenses a sum equal
to 5% of all rents and other charges collected from tenants or other permitted
occupants of the Building); (vii) the cost of rentals of capital equipment
designed to result in savings or reductions in Operating Expenses which costs
shall not exceed the savings realized; (viii) the cost incurred, which are
non-capital expenditures, in connection with the maintenance and repair of the
Building; (ix) expenditures for capital improvements (1) which under generally
accepted accounting principles as applied to real estate practice are expensed
or regarded as deferred expenses and (2) which are required by any law enacted
after the date of this Lease or any amendment enacted after the date of this
Lease of any existing law and (3)
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which are designed to result in a saving in the amount of Operating Expenses, in
any of such cases the cost thereof shall be included in Operating Expenses for
the Operational Year in which the costs are incurred and subsequent Operational
Years, amortized on a straight line basis, over the useful life thereof as
determined in accordance with generally accepted accounting principles
consistently applied, (except that, with respect to a capital improvement which
is of the type specified in clause (3), such cost shall be amortized over such
period of time as Landlord reasonably estimates such savings in Operating
Expenses will equal Landlord's cost for such capital improvement but in no event
in excess of the amount of savings actually realized in any Operational Year),
with an interest factor in any of such cases equal to two (2%) percent above the
prime rate (hereinafter referred to as the "BASE RATE") of X.X. Xxxxxx Chase,
N.A. (or Citibank, N.A. if X.X. Xxxxxx Xxxxx, N.A., shall not then have an
established prime rate; or the prime rate of any major banking institution doing
business in the City of New York, as selected by Landlord, if none of the
aforementioned banks shall be in existence or have an established prime rate) at
the time of Landlord's having incurred said expenditure; and auditing fees in
connection with the preparation of Operating Statements for tenants required
pursuant to Tax Payment and Operating Expense Payment provisions. Landlord may
use related or affiliated entities to provide services or furnish materials for
the Building provided that the rates or fees charged by such entities are
reasonably competitive with those charged by unrelated or unaffiliated entities
in the same municipality as the Building, for the same services or materials.
Provision in this Lease for an expense to be Landlord's expense or at Landlord's
expense shall not affect the inclusion thereof, to the extent provided above, in
Operating Expenses.
Operating Expenses shall exclude or have deducted from them, as the case may be,
and as shall be appropriate:
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1. leasing and brokerage commissions in connection with
leases of space in the Building;
2. salaries, fringe benefits and other compensation of
personnel above the grade of building manager;
3. the cost of any electricity furnished to the Demised
Premises or any other space leased or available for lease in the Building;
4. except as otherwise hereinabove provided, the cost of
any repair or replacement, alteration, addition or change which is a capital
expenditure under generally accepted accounting principles consistently applied;
5. the cost of items, including overtime HVAC, for which
Landlord is directly compensated by payment by tenants, or any other party
including this Tenant (except pursuant to provisions similar in intent to
Sections 5.07-5.11 for the payment of a share of the costs of operating the
Building), which are not included in fixed rent;
6. the cost of repairs or replacements incurred by reason
of insured fire or other casualty, or condemnation;
7. advertising and promotional expenditures and any other
expense incurred in connection with the renting of space;
8. legal and other professional or consulting fees incurred
in disputes with tenants including legal, arbitration and auditing fees incurred
in disputes with tenants;
9. mortgage or other interest and/or debt service; ground
rents or any other payments under any superior leases;
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10. any initial construction work performed by Landlord for
tenants, and tenant alteration work or change work, including any utilities,
fees or services incurred in connection with the performance of such work;
11. painting and decorating of areas to be occupied by
tenants or licensees; special services (i.e., beyond the normal repair,
maintenance and operating of the Building) provided without extra charge, beyond
fixed rent, to some but not all tenants in the Building;
12. Taxes;
13. lease takeover costs and related expenses;
14. any wages, salaries, fringe benefits and other
compensation of Landlord's employees (except as set forth in Section 5.07(a)(i)
and (ii) above) or any general and administrative overhead of Landlord;
15. costs incurred with respect to a sale of all or any
portion of the Building or any interest therein or in connection with the
purchase or sale of any air or development rights;
16. any interest, fine, penalty or other late charges
payable by Landlord;
17. the cost of removing, encapsulating or otherwise abating
any asbestos or other hazardous materials in the Building except with respect to
any materials which are determined to be hazardous after the date of this Lease;
18. franchise, income, transfer, gains, inheritance,
personal property or other tax imposed on Landlord;
19. the cost of the acquisition or installation of any
sculpture, paintings or other objects of art; and
20. the cost of performing work or furnishing services to or
for any tenant other than Tenant, at Landlord's expense, to the extent such work
or service is in excess of any
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work or service Landlord is obligated to provide to Tenant or generally to other
tenants in the Building at Landlord's expense.
(b) "OPERATIONAL YEAR" shall mean each calendar year during
the Term hereof;
(c) Intentionally Deleted;
(d) Intentionally Deleted; Page 15;
(e) "TENANT'S PROJECTED SHARE OF OPERATING EXPENSEs" shall
mean Tenant's Proportionate Share of Landlord's reasonable estimate of Operating
Expenses in any Operational Year, divided by twelve (12), and payable monthly by
Tenant to Landlord as additional rent as provided below.
5.08 On or before the Commencement Date, Landlord shall furnish
Tenant a statement setting forth the estimated aggregate amount of the Operating
Expenses and Landlord's computation of Tenant's Projected Share of Operating
Expenses for the current Operational Year. After the expiration of each
Operational Year, Landlord shall furnish Tenant a statement setting forth the
aggregate amount of the Operating Expenses for such Operational Year and
Landlord's computation of Tenant's Projected Share of Operating Expenses for the
immediately succeeding Operational Year. The statements furnished under this
Section 5.08 is hereinafter referred to as an "OPERATING STATEMENT".
5.09 Tenant shall pay, as additional rent for such Operational Year,
an amount equal to Tenant's Proportionate Share of the amount of the Operating
Expenses for such Operational Year. (The amount payable by Tenant is hereinafter
referred to as the "OPERATING EXPENSE PAYMENT"). The Operating Expense Payment
shall be prorated, if necessary, to correspond with that portion of an
Operational Year occurring within the Term of this Lease.
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The Operating Expense Payment shall be payable by Tenant within ten (10) days
after receipt of the Operating Statement.
5.10 Commencing on the Commencement Date and for each Operational
Year thereafter, Tenant shall pay to Landlord as additional rent for the then
Operational Year, Tenant's Projected Share of Operating Expenses. The first
payment shall be retroactive to the Commencement Date and shall include payment
for the month in which such payment is made, and shall be made ten (10) days
after Tenant receives an Operating Statement; thereafter, monthly payments shall
be made on the first day of each month throughout such Operational Year and
thereafter until receipt of the next Operating Statement setting forth any
changes in Tenant's Projected Share of Operating Expenses for the then current
Operational Year. If the Operating Statement furnished by Landlord to Tenant at
the end of an Operational Year shall indicate that Tenant's Projected Share of
Operating Expenses for such Operational Year exceeded the Operating Expense
Payment for such Operational Year, Landlord shall forthwith either (a) pay the
amount of excess directly to Tenant concurrently with the delivery of the
Operating Statement or (b) permit Tenant to credit the amount of such excess
against the subsequent payment of rent due hereunder; if such Operating
Statement furnished by Landlord to Tenant hereunder shall indicate that the
Operating Expense Payment exceeded Tenant's Projected Share of Operating
Expenses for such Operational Year, Tenant shall within ten (10) days after
receipt of the Operating Statement, pay the amount of such excess to Landlord.
5.11 Every Operating Statement and Tax Statement given by Landlord
pursuant to Section 5.02 and Section 5.08 shall be conclusive and binding upon
Tenant unless within sixty (60) days after the receipt of such Operating
Statement or Tax Statement Tenant shall notify Landlord in writing ("TENANT'S
NOTICE OF DISPUTE") that it disputes the correctness of the
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Operating Statement or Tax Statement, specifying the particular respects in
which the Operating Statement or Tax Statement is claimed to be incorrect. In
the event Tenant fails to so notify Landlord within sixty (60) days, then Tenant
waives any objections and is barred from asserting any claims pertaining to such
charges for the year, and all payments made by Tenant on account of operating
expenses and taxes shall then be conclusively accepted by Tenant as correct,
final and not subject to question, claim, reduction, audit or rebate in whole or
in part. When Tenant delivers Tenant's Notice of Dispute to Landlord, if Tenant
desires to audit Landlord's books and records relative to the particular items
Tenant believes to be incorrect, Tenant must include its request to audit
Landlord's books and records (the "AUDIT") in said Tenant's Notice of Dispute.
Landlord shall review Tenant's claim(s) stated in Tenant's Notice of Dispute.
After said review, in the event Landlord concurs with Tenant's claim(s),
Landlord will contact Tenant to arrange the appropriate adjustment. In the event
Landlord disagrees with Tenant's claim, Landlord shall contact Tenant to
schedule an appointment for a date and time mutually agreeable for the Audit (if
an audit has been requested in Tenant's Notice of Dispute) to proceed. The date
on which Landlord and Tenant agree to meet to begin the Audit shall be deemed to
be the first day of the thirty (30) day Audit Period. Landlord and Tenant agree
that such Audit must be (i) conducted by (a) an independent reputable certified
public accounting firm that is not being compensated by Tenant, in whole or in
part, on a contingency fee basis, (b) by Tenant's employees, or (c) by a
qualified third party designated in writing by Tenant as its authorized
representative (one of which being the "AUDITOR"), and (ii) such Audit must be
completed within thirty (30) days following the day on which the initial
appointment for the Audit is scheduled ("AUDIT PERIOD"). During the Audit
Period, Landlord agrees to grant Tenant reasonable access to portions of
Landlord's books and records for the purpose of verifying Operating Expenses or
Taxes incurred
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by Landlord and to have and make copies of any and all bills and vouchers
relating thereto, subject to reimbursement by Tenant for the cost of such
copies. The findings of the Auditor must be submitted in writing to Landlord
prior to the conclusion of the Audit Period. If timely submitted in writing to
Landlord, the findings of the Auditor shall be conclusively accepted by both
parties as correct, final and binding unless either party gives notice in
writing of continued dispute and intent to pursue the dispute by arbitration
("ARBITRATION NOTICE") to the other party within ten (10) days after receipt by
Landlord of the Auditor's findings. If the Auditor fails to deliver its findings
in writing to Landlord prior to the conclusion of the Audit Period, then Tenant
waives any objections and is barred from asserting any claims pertaining to such
charges for the year, and all payments made by Tenant on account of operating
expenses and taxes shall then be conclusively accepted by Tenant as correct,
final and binding. Either party may submit the dispute to arbitration under the
provisions for arbitration set forth in Article 34, below. However, if the
dispute is not submitted to arbitration within ten (10) days after receipt of
the Arbitration Notice, then the parties waive their right to pursue the dispute
by arbitration or any other means and the findings of the Auditor shall be
conclusively accepted by both parties as correct, final and binding. Pending the
determination of such dispute by agreement or arbitration as aforesaid, Tenant
shall within thirty (30) days after receipt of such Tax Statement or Operating
Statement, pay additional rent, if due, in accordance with the Tax Statement or
Operating Statement and such payment shall be without prejudice to Tenant's
position. If the dispute shall be determined in Tenant's favor, Landlord shall,
on demand, pay Tenant the amount of Tenant's overpayment of rents, if any,
resulting from compliance with the Tax Statement or Operating Statement. In
connection with the Audit and any review of Landlord's books and records, Tenant
agrees that all of the information obtained through Tenant's audit with respect
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to financial matters (including, without limitation, costs, expenses and income)
and any other matters pertaining to Landlord and/or the Building as well as any
compromise, settlement or adjustment reached between Landlord and Tenant
relative to the results of the audit shall be held in strict confidence by
Tenant and its officers, agents and employees; and Tenant shall cause its
Auditor and any of its officers, agents and employees to be similarly bound. As
a condition precedent to Tenant's exercise of its right to audit, Tenant must
deliver to Landlord a signed confidentiality agreement from the Auditor (in form
acceptable to Landlord) acknowledging that all of the results of such audit as
well as any compromise, settlement or adjustment reached between Landlord and
Tenant shall be held in strict confidence (other than to Tenant and to Tenant's
Auditor and attorneys) and shall not be revealed in any manner to any person
except upon the prior written consent of Landlord. Tenant understands and agrees
that this provision is of material importance to Landlord and that any violation
of the terms hereof shall result in immediate and irreparable harm to Landlord.
Landlord shall have all rights allowed by or law or equity if Tenant, its
officers, agents or employees and/or the Auditor violate the terms of this
provision, including, without limitation, the right to terminate this Lease or
the right to terminate Tenant's right to audit as set forth herein.
5.12 Landlord's failure during the lease term to prepare and deliver
any of the tax bills, statements, notice or bills set forth in this Article 5,
or Landlord's failure to make a demand, shall not in any way cause Landlord to
forfeit or surrender its rights to collect any of the foregoing items of
additional rent which may have become due during the term of this Lease.
Tenant's liability for the amounts due under this Article 5 shall survive the
expiration of the term of this Lease provided, however, that Landlord may not
submit any invoice following the one (1) year anniversary of the expiration of
the Term of this Lease.
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ARTICLE 6
SECURITY DEPOSIT
6.01 Subject to the provisions of Section 6.02, Tenant shall have
deposited with Landlord, on or before the date hereof the sum of $75,000.00 as
security for the faithful performance and observance by Tenant of the terms,
provisions and conditions of this Lease; it is agreed that in the event Tenant
defaults in respect of any of the terms, provisions and conditions of this
Lease, including, but not limited to, the payment of rent and additional rent,
which default continues after any notice required under this Lease and the
expiration of any applicable cure period, Landlord may use, apply or retain the
whole or any part of the security so deposited or the proceeds of the Letter of
Credit (as set forth in Section 6.02 hereof) to the extent required for the
payment of any rent and additional rent or any other sum as to which Tenant is
in default or for any sum which Landlord may expend or may be required to expend
by reason of Tenant's default in respect of any of the terms, covenants and
conditions of this Lease, including but not limited to, any damages or
deficiency accrued before or after summary proceedings or other re-entry by
Landlord. Landlord shall not be required to deposit the security in a separate
interest bearing account segregated from Landlord's funds, and Tenant shall not
be entitled to any interest earned thereon. In the event that Tenant shall fully
and faithfully comply with all of the terms, provisions, covenants and
conditions of this Lease, the security shall be returned to Tenant no later than
thirty (30) days after the Expiration Date and after delivery of entire
possession of the Demised Premises to Landlord. In the event Landlord applies or
retains any portion or all of the security deposited, Tenant shall forthwith
restore the amount so applied or retained so that at all times the amount
deposited shall be $75,000.00.
6.02 In addition to the cash deposit pursuant to Section 6.01 above,
Tenant shall deliver to Landlord a clean, irrevocable, unconditional and
transferable (without cost to the
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beneficiary thereof) letter of credit (hereinafter referred to as the "LETTER OF
CREDIT") issued by and drawn upon Wachovia Bank or any one of the following:
Chase, N.A., Bank of America, HSBC or any other commercial bank (hereinafter
referred to as the "ISSUING BANK") satisfactory to Landlord, which Letter of
Credit shall have a term of not less than one year, shall remain in full force
and effect for sixty (60) days after the Expiration Date of this Lease, and
shall, be in form and content as is satisfactory to Landlord, be for the account
of Landlord and in the amount of $425,000.00, which amount is subject to
increase pending Landlord's review of the supplemental HVAC specifications as
provided for in Section 4.04, above. The Letter of Credit shall provide that:
(i) The Issuing Bank shall pay to Landlord an amount
up to the face amount of the Letter of Credit upon presentation of the
Letter of Credit and a sight draft in the amount to be drawn;
(ii) The Letter of Credit shall be deemed to be
automatically renewed, without amendment for consecutive periods of one
year each during the term of this Lease, unless the Issuing Bank sends
written notice (hereinafter referred to as the "NON-RENEWAL NOTICE") to
Landlord by certified or registered mail, return receipt requested, not
less than thirty (30) days next preceding the then expiration date of
the Letter of Credit, that it elects not to have such Letter of Credit
renewed;
(iii) In the event that the Issuing Bank sends a
Non-Renewal Notice, Tenant shall have twenty (20) days to provide
Landlord with a substitute Letter of Credit which meets the requirements
of this Section 6.02. In the event that Tenant fails within said twenty
(20) day period to provide Landlord with a substitute Letter of Credit,
Landlord, within twenty (20) days of its receipt of the Non-Renewal
Notice, shall have
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the right, exercisable by a sight draft, to receive the monies
represented by the Letter of Credit (which moneys shall be held by
Landlord as a cash deposit pursuant to the terms of this Article 6
pending the replacement of such Letter of Credit or Tenant's default
hereunder); and
(iv) Upon Landlord's sale of Landlord's interest in
the land and the Building, the Letter of Credit shall be transferable by
Landlord as provided in Section 6.03 hereof.
6.03 In the event of a sale of Landlord's interest in the land and
the Building, Landlord shall have the right to transfer the cash security or
Letter of Credit, as the case may be, deposited hereunder to the vendee or
lessee, and Landlord shall thereupon be released by Tenant from all liability
for the return of such cash security or Letter of Credit provided that (a)
Tenant is given written notice of such sale; (b) the vendee or lessee, as the
case may be, shall, by written agreement, assume all of Landlord's duties and
obligations under this Lease with respect to such security and a copy of such
assumption agreement shall be delivered to Tenant promptly after the effective
date of such sale; and (c) in the event that Landlord transfers cash security,
Tenant shall be given notice of the name, address and bank account number where
such cash security is deposited. In such event, and subject to the satisfaction
of the foregoing requirements, Tenant agrees to look solely to the new Landlord
for the return of said cash security or Letter of Credit. In the event that
Landlord fails to transfer the cash security or Letter of Credit to a vendee or
lessee, Landlord shall return the cash security or Letter of Credit, as the case
may be, to Tenant no later than the first business day following the effective
date of such sale. It is agreed that the provisions hereof shall apply to every
transfer or assignment made of said cash security or Letter of Credit to a new
Landlord.
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6.04 Tenant covenants that it will not assign or encumber, or attempt
to assign or encumber, the monies or Letter of Credit deposited hereunder as
security, and that neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment, or attempted
encumbrance.
6.05 Landlord may draw down the proceeds of the Letter of Credit in
the event of a default by Tenant hereunder after the notice required under this
Lease and expiration of the applicable cure period or the non-renewal of such
Letter of Credit by the Issuing Bank after the expiration of the period provided
to Tenant in Section 6.02(iii) to substitute a new Letter of Credit. Further
Landlord may draw down the proceeds of the Letter of Credit in the event of any
breach of Tenant's representation and warrant set forth in Section 2.05 relative
to Tenant's use of the Demised Premises.
6.06 In the event that at any time during the term of this Lease the
Issuing Bank files for protection under any chapter of the United States
Bankruptcy Code or the bankruptcy code of the state or country of its formation
or is seized by the appropriate regulatory authorities of the State of New
Jersey, the United States or the state or nation of its formation and as a
result thereof is incapable of, unable to, or prohibited from honoring the then
existing Letter of Credit (hereinafter referred to as the "EXISTING L/C") in
accordance with the terms thereof, then, upon the happening of either of the
foregoing, Landlord may send written notice to Tenant (hereinafter referred to
as the "REPLACEMENT NOTICE") requiring Tenant within thirty (30) days to replace
the Existing L/C with a new letter of credit (hereinafter referred to as the
"REPLACEMENT L/C") from an Issuing Bank meeting the qualifications described in
Section 6.02. Upon receipt of a Replacement L/C meeting the qualifications of
Section 6.02, Landlord shall forthwith return the Existing L/C to Tenant. In the
event that a Replacement L/C meeting the qualifications of
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Section 6.02 is not received by Landlord within the time specified, the Existing
L/C may be presented for payment by Landlord and the proceeds thereof shall be
held by Landlord in accordance with Section 6.01 subject, however, to Tenant's
right, at any time thereafter prior to a Tenant's default hereunder, to replace
such cash security with a new letter of credit meeting the qualifications of
Section 6.02. Tenant shall have the right from time to time and at any time to
substitute the Existing L/C with a Letter of Credit meeting the qualifications
of Section 6.02. If Tenant elects to change the Issuing Bank from Wachovia Bank
to another Issuing Bank meeting the requirements set forth in Section 6.02,
Tenant may do so after obtaining the advance written consent of Landlord.
6.07 Landlord and Tenant agree that said Letter of Credit as provided
for in this Article shall be reduced during the term of the Lease from the
original amount of $425,000.00 on the following schedule:
Date After
Commencement Date Amt LOC Decreased By Remaining LOC Amt
15 Months $60,000.00 $365,000.00
27 Months $65,000.00 $300,000.00
39 Months $60,000.00 $240,000.00
51 Months $60,000.00 $180,000.00
63 Months $60,000.00 $120,000.00
75 Months $60,000.00 $60,000.00
87 Months $60,000.00 $0
Upon the occurrence of each such reduction in the amount of the Letter of Credit
as set forth in the schedule above, Tenant may deliver a replacement Letter of
Credit in such reduced amount and otherwise in conformance with the criteria set
forth in Section 6.02, and Landlord shall there upon return the prior Letter of
Credit to Tenant.
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ARTICLE 7
SUBORDINATION, NOTICE TO LESSORS AND MORTGAGEES
7.01 This lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate in all respects to all ground leases, overriding leases
and underlying leases of the Land and/or the Building now or hereafter existing
and to all mortgages which may now or hereafter affect the Land and/or the
Building and/or any of such leases, whether or not such mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter
to be made under such mortgages, and to all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders and
consolidations of such mortgages, provided that Landlord shall use its best
efforts to obtain a "NON-DISTURBANCE AGREEMENT" in favor of Tenant in form and
substance reasonably satisfactory to Tenant and otherwise in recordable form
from the holder of each mortgage in effect as of the date hereof no later than
the Commencement Date. This Section shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute and deliver any instrument that
Landlord, the lessor of any such lease or the holder of any such mortgage or any
of their respective successors in interest may reasonably request to evidence
such subordination. In the event Tenant fails to execute and deliver to Landlord
such instrument within fifteen (15) days of request therefor, Landlord may, but
shall not be obligated to, execute such instrument for and on behalf of Tenant
as its attorneys-in-fact. In acknowledgment thereof, Tenant hereby appoints
Landlord as its irrevocable attorneys-in-fact coupled with an interest solely to
execute and deliver any instruments required to carry out the intent of this
Section 7.01 on behalf of Tenant. The leases to which this Lease is, at the time
referred to, subject and subordinate pursuant to this Article are hereinafter
sometimes referred to as "SUPERIOR LEASES" and the mortgages to which this Lease
is, at the time referred to, subject and
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subordinate are hereinafter sometimes referred to as "SUPERIOR MORTGAGES" and
the lessor of a superior lease or its successor in interest at the time referred
to is sometimes hereinafter referred to as a "LESSOR".
7.02 In the event of any act or omission of Landlord which would give
Tenant the right, immediately or after lapse of a period of time, to cancel or
terminate this Lease, or to claim a partial or total eviction, Tenant shall not
exercise such right (i) until it has given written notice of such act or
omission to the holder of each superior mortgage and the lessor of each superior
lease whose name and address shall previously have been furnished to Tenant in
writing, and (ii) unless such act or omission shall be one which is not capable
of being remedied by Landlord or such mortgage holder or lessor within a
reasonable period of time, until a reasonable period for remedying such act or
omission shall have elapsed following the giving of such notice and following
the time when such holder or lessor shall have become entitled under such
superior mortgage or superior lease, as the case may be, to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this Lease or otherwise, after similar notice,
to effect such remedy), provided such holder or lessor shall with due diligence
give Tenant written notice of intention to, and commence and continue to remedy
such act or omission.
7.03 If the lessor of a superior lease or the holder of a superior
mortgage shall succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease or deed,
then at the request of such party so succeeding to Landlord's rights (herein
sometimes referred to as "SUCCESSOR LANDLORD") and upon successor landlord's
written agreement to accept Tenant's attornment, Tenant shall attorn to and
recognize such successor landlord as Tenant's landlord under this Lease, and
shall promptly execute and
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deliver any instrument that such successor landlord may reasonably request to
evidence such attornment. Upon such attornment this Lease shall continue in full
force and effect as, or as if it were, a direct lease between the successor
landlord and Tenant upon all of the terms, conditions and covenants as are set
forth in this Lease and shall be applicable after such attornment except that
the successor landlord shall not be:
(a) liable for any previous act or omission of Landlord (or
its predecessor in interest) under this Lease;
(b) bound by any previous modification of this Lease, not
expressly provided for in this Lease, or by any previous prepayment of more than
one month's fixed rent, unless such modification or prepayment shall have been
expressly approved in writing by the lessor of the superior lease or the holder
of the superior mortgage through or by reason of which the successor landlord
shall have succeeded to the rights of Landlord under this Lease;
(c) responsible for any monies owing by Landlord to the
credit of Tenant;
(d) subject to any credits, offsets, claims, counterclaims,
demands or defenses which Tenant may have against Landlord (or its predecessors
in interest), unless and to the extent that such condition shall then exist and
be continuing;
(e) bound by any covenant to undertake or complete any
construction of the Demised Premises or any portion thereof or pay for or
reimburse Tenant for any costs incurred in connection with such construction,
except for those obligations of Landlord with respect to Landlord's Work and the
Work Allowance as set forth in Article 4 hereof;
(f) required to account for any security deposit other than
any security deposit actually delivered to the successor landlord;
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(g) bound by any obligation to make any payment to Tenant or
grant or be subject to any credits, except for services, repairs, maintenance
and restoration provided for under this Lease to be performed after the date of
attornment, it being expressly understood, however, that the successor landlord
shall not be bound by an obligation to make payment to Tenant with respect to
construction performed by or on behalf of Tenant at the Demised Premises.
7.04 If, in connection with obtaining financing or refinancing for
the Building of which the Demised Premises form a part, or Landlord's estate and
interest therein, a lender shall request reasonable modifications to this Lease
as a condition to such financing or refinancing, Tenant will not withhold, delay
or defer its consent thereto, provided that such modifications do not increase
the obligations of Tenant or decrease Tenant's rights hereunder (except,
perhaps, to the extent that Tenant may be required to give notices of any
defaults by Landlord to such lender and/or permit the curing of such defaults by
such lender together with the granting of such additional time for such curing
as may be required for such lender to get possession of the Building or
Landlord's interest therein) or materially adversely affect the leasehold
interest hereby created. In no event shall a requirement that the consent of any
such lender be given for any modification of this Lease or, subject to the
provisions of this Lease for any assignment or sublease, be deemed to materially
adversely affect the leasehold interest hereby created. In the event Tenant
fails to execute and deliver to Landlord a duly executed modification or
amendment of this Lease incorporating such modification within fifteen (15) days
of a request therefor, Landlord may execute such amendment or modification for
and on behalf of Tenant as its attorney-in-fact coupled with an interest solely
to execute and deliver any instruments required to carry out the intent of this
Section 7.04 on behalf of Tenant.
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ARTICLE 8
QUIET ENJOYMENT
8.01 So long as Tenant is not in default of its obligations under
this Lease, following notice and expiration of the applicable cure period,
Tenant shall peaceably and quietly have, hold and enjoy the Demised Premises
subject, nevertheless, to the obligations of this Lease and, as provided in
Article 7, to the superior leases and the superior mortgages.
ARTICLE 9
ASSIGNMENT AND SUBLETTING
9.01 Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, nor suffer, nor permit the Demised Premises or any part thereof to be
used or occupied by others, without the prior written consent of Landlord in
each instance which consent shall not be unreasonably withheld, conditioned or
delayed. If this Lease be assigned, or if the Demised Premises or any part
thereof be underlet or occupied by anybody other than Tenant, Landlord may,
after default by Tenant, collect rent from the assignee, undertenant or
occupant, and apply the net amount collected to the rent herein reserved, but no
assignment, underletting, occupancy or collection shall be deemed a waiver of
the provisions hereof, the acceptance of the assignee, undertenant or occupant
as tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Landlord to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Landlord to any further
assignment or underletting. In no event shall any permitted sublessee assign or
encumber its sublease or further sublet all or any portion of its sublet space,
or otherwise suffer or permit the sublet space or any part thereof to be used or
occupied by others, without Landlord's prior written consent in each instance.
Notwithstanding anything to the contrary contained in this
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Article 9, Landlord's consent shall not be required, and Landlord's Option as
set forth in Section 9.02 shall not apply, in connection with the assignment of
Tenant's interest in this Lease and/or the subletting of all or a portion of the
Demised Premises (i) to any entity which controls, is controlled by or is under
common control with Tenant; (ii) which results from the merger of or
consolidation with Tenant; or (iii) to any entity which purchases the assets of
any business unit of Tenant, provided such assignee or sublessee shall assume
all of Tenant's obligations under the Lease (without releasing the assignor or
sublessor therefrom).
9.02 If Tenant shall at any time or times during the term of this
Lease desire to assign this Lease or sublet all or substantially all of the
Demised Premises, Tenant shall give notice thereof to Landlord, which notice
shall be accompanied by (a) a detailed term sheet with respect to the proposed
assignment or sublease, the effective or commencement date of which shall be not
less than sixty (60) nor more than one hundred eighty (180) days after the
giving of such notice, (b) a statement setting forth in reasonable detail the
identity of the proposed assignee or subtenant, the nature of its business and
its proposed use of the Demised Premises, and (c) current financial information
with respect to the proposed assignee or subtenant, including, without
limitation, its most recent financial report. Such notice shall be deemed an
offer from Tenant to Landlord whereby Landlord (or Landlord's designee) may, at
its option (hereinafter referred to as "LANDLORD'S OPTION"), (i) sublease such
space (hereinafter referred to as the "LEASEBACK SPACE") from Tenant upon the
terms and conditions hereinafter set forth (if the proposed transaction is a
sublease of all or part of the Demised Premises), (ii) terminate this Lease (if
the proposed transaction is an assignment or a sublease of all or substantially
all of the Demised Premises), or (iii) terminate this Lease with respect to the
Leaseback Space (if the proposed transaction is a sublease of part of the
Demised Premises). Landlord's Option may be
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exercised by Landlord by notice to Tenant at any time within thirty (30) days
after such notice has been given by Tenant to Landlord; and during such thirty
(30) day period Tenant shall not assign this Lease nor sublet such space to any
person. Landlord may not exercise Landlord's Option if Tenant shall desire to
assign this Lease or sublet less than all or substantially all of the demised
Premise
9.03 If Landlord exercises Landlord's Option to terminate this Lease
in the case where Tenant desires either to assign this Lease or sublet all or
substantially all of the Demised Premises, then, this Lease shall end and expire
on the date that such assignment or sublet was to be effective or commence, as
the case may be, and the fixed rent and additional rent shall be paid and
apportioned to such date. Tenant shall have the right to remove Tenant's
Property from the Demised Premises excluding any structural or base building
alterations and except as otherwise expressly provided in this Lease and shall
repair the Demised Premises wherever such removal results in damage thereto.
9.04 If Landlord exercises Landlord's Option to terminate this Lease
in part in any case where Tenant desires to sublet part of the Demised Premises,
then, (a) this Lease shall end and expire with respect to such part of the
Demised Premises on the date that the proposed sublease was to commence; (b)
from and after such date the fixed rent and additional rent shall be adjusted,
based upon the proportion that the rentable area of the Demised Premises
remaining bears to the total rentable area of the Demised Premises; and (c)
Tenant shall pay to Landlord, upon demand, the actual out-of-pocket costs
incurred by Landlord in physically separating such part of the Demised Premises
from the balance of the Demised Premises and in complying with any laws and
requirements of any public authorities relating to such separation to the extent
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Tenant was obligated to perform such work pursuant to the provisions of the term
sheet set forth in Section 9.02 or pursuant to this Lease; otherwise such costs
shall be at Landlord's expense.
9.05 If Landlord exercises Landlord's Option to sublet the Leaseback
Space, such sublease to Landlord or its designee (as subtenant) shall be at the
lower of (i) the rental rate per rentable square foot of fixed rent and
additional rent then payable pursuant to this Lease or (ii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and such sublease shall:
(a) be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this Lease except such as are
irrelevant or inapplicable, and except as otherwise expressly set forth to the
contrary in this Section;
(b) be upon the same terms and conditions as those contained
in the proposed sublease, except such as are irrelevant or inapplicable and
except as otherwise expressly set forth to the contrary in this Section;
(c) give the sublessee the unqualified and unrestricted
right, without Tenant's permission, to assign such sublease or any interest
therein and/or to sublet the Leaseback Space or any part or parts of the
Leaseback Space and to make any and all changes, alterations, and improvements
in the space covered by such sublease and if the proposed sublease will result
in all or substantially all of the Demised Premises being sublet, grant Landlord
or its designee the option to extend the term of such sublease for the balance
of the term of this Lease less one (1) day;
(d) provide that any assignee or further subtenant, of
Landlord or its designee, may, at the election of Landlord, be permitted to make
alterations, decorations and installations in the Leaseback Space or any part
thereof and shall also provide in substance that
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any such alterations, decorations and installations in the Leaseback Space
therein made by any assignee or subtenant of Landlord or its designee may be
removed, in whole or in part, by such assignee or subtenant, at its option,
prior to or upon the expiration or other termination of such sublease provided
that such assignee or subtenant, at its expense, shall repair any damage and
injury to that portion of the Leaseback Space so sublet caused by such removal;
and
(e) also provide that (i) the parties to such sublease
expressly negate any intention that any estate created under such sublease be
merged with any other estate held by either of said parties, (ii) any assignment
or subletting by Landlord or its designee (as the subtenant) may be for any
purpose or purposes that Landlord, in Landlord's reasonable discretion, shall
deem suitable or appropriate, (iii) Tenant, at Tenant's expense, shall and will
at all times provide and permit reasonably appropriate means of ingress to and
egress from the Leaseback Space so sublet by Tenant to Landlord or its designee,
(iv) Landlord, at Tenant's expense, may make such alterations as may be required
or deemed necessary by Landlord to physically separate the Leaseback Space from
the balance of the Demised Premises and to comply with any laws and requirements
of public authorities relating to such separation to the extent Tenant was
obligated to perform such work pursuant to the provisions of the term sheet set
forth in Section 9.02 or pursuant to this Lease; otherwise such costs shall be
at Landlord's expense, and (v) that at the expiration of the term of such
sublease, Tenant will accept the space covered by such sublease in its then
existing condition, subject to the obligations of the sublessee to make such
repairs thereto as may be necessary to preserve the premises demised by such
sublease in good order and condition.
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9.06 (a) If Landlord exercises Landlord's Option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this Lease as to the Leaseback Space during the period of time
it is so sublet to Landlord;
(b) Performance by Landlord, or its designee, under a
sublease of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this Lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this Lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease;
(c) Tenant shall have no obligation, at the expiration or
earlier termination of the term of this Lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Landlord or its
designee or anyone claiming under Landlord or such designee.
9.07 In the event Landlord does not exercise Landlord's Option
pursuant to Section 9.02 and providing that Tenant is not in default of any of
Tenant's obligations under this Lease after notice and the expiration of any
applicable grace period, Landlord's consent (which must be in writing and in
form reasonably satisfactory to Landlord) to the proposed assignment or sublease
shall be at Landlord's sole discretion and shall be granted or denied within the
thirty (30) day period set forth in Section 9.02, provided and upon condition
that:
(a) Tenant shall have complied with the provisions of
Section 9.02 and Landlord shall not have exercised Landlord's Option under said
Section 9.02 within the time permitted therefor;
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(b) In Landlord's reasonable judgment the proposed assignee
or subtenant is engaged in a business and the Demised Premises, or the relevant
part thereof, will be used in a manner which (i) is in keeping with the then
standards of the Building, (ii) is limited to the use expressly permitted under
this Lease, and (iii) will not violate any negative covenant as to use contained
in any other lease of space in the Building, Landlord agreeing to advise Tenant
of any such negative covenants promptly upon request;
(c) The proposed assignee or subtenant is a reputable person
of good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
(d) Provided Landlord then has comparably sized space
available for at least a comparable term, neither (i) the proposed assignee or
sublessee nor (ii) any person which, directly or indirectly, controls, is
controlled by, or is under common control with, the proposed assignee or
sublessee or any person who controls the proposed assignee or sublessee, is then
an occupant of any part of the Building;
(e) Provided Landlord then has comparably sized space
available for at least a comparable term, the proposed assignee or sublessee is
not a person with whom Landlord is then negotiating to lease space in the
Building;
(f) The form of the proposed sublease shall comply with the
applicable provisions of this Article;
(g) There shall not be more than three (3) entities
occupying the Demised Premises at any time, excluding affiliates or entities
which control, is controlled by or under common control with Tenant;
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(h) The rental and other terms and conditions of the
sublease are the same as those contained in the term sheet furnished to Landlord
pursuant to Section 9.02;
(i) Tenant shall reimburse Landlord on demand for any
reasonable out-of-pocket costs that may be incurred by Landlord in connection
with said assignment or sublease, including, without limitation, the costs of
making investigations as to the acceptability of the proposed assignee or
subtenant and legal costs incurred in connection with the review of any term
sheet, proposed assignment or sublease or any documentation in connection
therewith and in the preparation of any documentation in connection with any
request for consent whether or not granted;
(j) Tenant shall not have advertised or publicized to the
public in any way the availability of the Demised Premises without prior notice
to and approval by Landlord, which approval shall not be unreasonably withheld
or delayed, nor shall any advertisement state the name (as distinguished from
the address) of the Building or the proposed rental, but Tenant may list the
Demised Premises or the portion thereof to be subleased and the terms of any
proposed subletting or assignment with a licensed real estate broker; and
(k) The sublease shall not allow the use of the Demised
Premises or any part thereof (i) for the preparation and/or sale of food for off
premises consumption or (ii) for use by a foreign or domestic government or
governmental agency.
Except for any subletting by Tenant to Landlord or its designee pursuant to the
provisions of this Article, each subletting pursuant to this Article shall be
subject to all of the covenants, agreements, terms, provisions and conditions
contained in this Lease. Notwithstanding any such subletting to Landlord or any
such subletting to any other subtenant and/or acceptance of rent or additional
rent by Landlord from any subtenant, Tenant shall and will remain fully liable
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for the payment of the fixed rent and additional rent due and to become due
hereunder and for the performance of all the covenants, agreements, terms,
provisions and conditions contained in this Lease on the part of Tenant to be
performed and all acts and omissions of any licensee or subtenant or anyone
claiming under or through any subtenant which shall be in violation of any of
the obligations of this Lease, and any such violation shall be deemed to be a
violation by Tenant. Tenant further agrees that notwithstanding any such
subletting, no other and further subletting of the Demised Premises by Tenant or
any person claiming through or under Tenant (except as provided in Section 9.05)
shall or will be made except upon compliance with and subject to the provisions
of this Article. If Landlord shall decline to give its consent to any proposed
assignment or sublease, or if Landlord shall exercise Landlord's Option under
Section 9.02, Tenant shall indemnify, defend and hold harmless Landlord against
and from any and all loss, liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims that may be made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons claiming a commission or similar compensation in connection with the
proposed assignment or sublease.
9.08 In the event that (a) Landlord fails to exercise Landlord's
Option under Section 9.02 and consents to a proposed assignment or sublease, and
(b) Tenant fails to execute and deliver the assignment or sublease to which
Landlord consented within one hundred twenty (120) days after the giving of such
consent, then, Tenant shall again comply with all of the provisions and
conditions of Section 9.02 before assigning this Lease or subletting all or part
of the Demised Premises.
9.09 With respect to each and every sublease or subletting authorized
by Landlord under the provisions of this Lease, it is further agreed:
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(a) no subletting shall be for a term ending later than one
day prior to the expiration date of this Lease;
(b) no sublease shall be valid, and no subtenant shall take
possession of the Demised Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
(c) each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which this Lease is or shall be
subordinate, and that in the event of termination, re-entry or dispossess by
Landlord under this Lease Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease except that Landlord shall not (i) be
liable for any previous act or omission of Tenant under such sublease, (ii) be
subject to any offset, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, or (iii) be bound by any
previous modification of such sublease or by any previous prepayment of more
than one month's rent.
9.10 If Landlord shall give its consent to any assignment of this
Lease or to any sublease, Tenant shall in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment, an amount equal to 50% of
all sums and other considerations paid to Tenant by the assignee for or by
reason of such assignment (including, but not limited to, sums paid for the sale
of leasehold improvements paid for or installed by Landlord, Tenant's fixtures,
equipment, furniture, furnishings or other personal property, less, in the case
of a sale thereof, the then fair market value thereof) and less the reasonable
costs (hereinafter referred to as the "ASSIGNMENT EXPENSES") paid by Tenant for
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alteration costs (or contributions in lieu thereof), advertising, brokerage or
consulting fees or commissions and legal fees in connection with such
assignment; and
(b) in the case of a sublease, an amount equal to 50% of any
rents, additional charge or other consideration payable under the sublease to
Tenant by the subtenant which is in excess of the fixed rent and additional rent
accruing during the term of the sublease in respect of the subleased space (at
the rate per square foot payable by Tenant hereunder) pursuant to the terms
hereof (including, but not limited to, sums paid for the sale or rental of
Tenant's fixtures, leasehold improvements, equipment, furniture or other
personal property, less, in the case of the sale thereof, the then fair market
value thereof) and less the reasonable costs (hereinafter referred to as the
"SUBLETTING EXPENSES") paid by Tenant for alteration costs (or contributions in
lieu thereof), advertising, brokerage or consulting fees or commissions and
legal fees in connection with such subletting. The sums payable under Sections
9.10(a) and (b) shall be paid to Landlord as and when paid by the assignee or
subtenant, as the case may be, to Tenant and upon the execution and delivery of
such assignment or sublease, as the case may be, Tenant shall provide to
Landlord a statement of the Assignment Expenses or Subletting Expenses, as the
case may be, certified as correct by an officer or principal of Tenant. In the
event of any dispute with respect to the Assignment Expenses or the Subletting
Expenses, such dispute shall be determined by arbitration in accordance with the
provisions of Article 34 hereof.
9.11 If Tenant is a corporation other than a corporation whose stock
is listed and traded on a nationally recognized stock exchange, the provisions
of Section 9.01 shall apply to a transfer (however accomplished, whether in a
single transaction or in a series of related or unrelated transactions) of stock
(or any other mechanism such as, by way of example, the issuance of additional
stock, a stock voting agreement or change in class(es) of stock) which
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results in a change of control of Tenant as if such transfer of stock (or other
mechanism) which results in a change of control of Tenant were an assignment of
this Lease, and if Tenant is a partnership or joint venture or other entity,
said provisions shall apply with respect to a transfer (by one or more
transfers) of an interest in the distributions of profits and losses of such
partnership or joint venture or other entity (or other mechanism, such as, by
way of example, the creation of additional general partnership or limited
partnership interests) which results in a change of control of such partnership
or joint venture or other entity, as if such transfer of an interest in the
distributions of profits and losses of such partnership or joint venture or
other entity which results in a change of control of such partnership or joint
venture or other entity were an assignment of this Lease; but the provisions of
the first sentence of Section 9.01, Landlord's Option, Section 9.07(a)-(e), (h)
and (j), and Section 9.10 shall not apply to transactions with a corporation
into or with which Tenant is merged or consolidated or to which all or
substantially all of Tenant's assets are transferred (provided that the purpose
for which such assets are transferred is a valid business purpose and not merely
to transfer this Lease) or to any corporation which controls or is controlled by
Tenant or is under common control with Tenant, provided that in the event of
such merger, consolidation or transfer of all or substantially all of Tenant's
assets (i) the successor to Tenant has a net worth computed in accordance with
generally accepted accounting principles at least equal to the net worth of
Tenant herein named on the date of this Lease, and (ii) proof satisfactory to
Landlord of such net worth shall have been delivered to Landlord at least 10
days prior to the effective date of any such transaction.
9.12 Any assignment or transfer, whether made with Landlord's consent
pursuant to Section 9.01 or without Landlord's consent pursuant to Section 9.11,
shall be made only if, and shall not be effective until, the assignee shall
execute, acknowledge and deliver to
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Landlord an agreement in form and substance satisfactory to Landlord whereby the
assignee shall assume the obligations of this Lease on the part of Tenant to be
performed or observed and whereby the assignee shall agree that the provisions
in Section 9.01 shall, notwithstanding such assignment or transfer, continue to
be binding upon it in respect of all future assignments and transfers. The
original named Tenant covenants that, notwithstanding any assignment or
transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of fixed rent and/or additional rent by Landlord
from an assignee, transferee, or any other party, the original named Tenant
shall remain fully liable for the payment of the fixed rent and additional rent
and for the other obligations of this Lease on the part of Tenant to be
performed or observed. In no event shall this Lease be assigned to a foreign or
domestic government or governmental agency.
9.13 The joint and several liability of Tenant and any immediate or
remote successor in interest of Tenant and the due performance of the
obligations of this Lease on Tenant's part to be performed or observed shall not
be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
9.14 The listing of any name other than that of Tenant, whether on
the doors of the Demised Premises or the Building directory, or otherwise, shall
not operate to vest any right or interest in this Lease or in the Demised
Premises, nor shall it be deemed to be the consent of Landlord to any assignment
or transfer of this Lease or to any sublease of the Demised Premises or to the
use or occupancy thereof by others.
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ARTICLE 10
COMPLIANCE WITH LAWS AND REQUIREMENTS OF PUBLIC AUTHORITIES
10.01 Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of public authority, and
Tenant, at its expense, shall comply with all laws and requirements of public
authorities which shall, with respect to the Demised Premises or the use and
occupation thereof, or the abatement of any nuisance, impose any violation,
order or duty on Landlord or Tenant, arising from (i) Tenant's use of the
Demised Premises, (ii) the manner of conduct of Tenant's business or operation
of its installations, equipment or other property therein, (iii) any cause or
condition created by or at the instance of Tenant, other than by Landlord's
performance of any work for or on behalf of Tenant, or (iv) breach of any of
Tenant's obligations hereunder. However, Tenant shall not be so required to make
any structural or other substantial change in the Demised Premises unless the
requirement arises from Tenant's manner of use of the Demised Premises as
distinguished from the mere use thereof for the Permitted Uses or from a cause
or condition referred to in clause (ii), (iii) or (iv) above. Furthermore,
Tenant need not comply with any such law or requirement of public authority so
long as Tenant shall be contesting the validity thereof, or the applicability
thereof to the Demised Premises, in accordance with Section 10.02. Landlord, at
its expense, shall comply with all other such laws and requirements of public
authorities as shall affect the Demised Premises, but may similarly contest the
same subject to conditions reciprocal to Subsections (a), (b) and (d) of Section
10.02.
10.02 Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings, provided that:
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(a) Landlord shall not be subject to criminal penalty or to
prosecution for a crime nor shall the Demised Premises or any part thereof be
subject to being condemned or vacated, by reason of non-compliance or otherwise
by reason of such contest;
(b) Tenant shall defend, indemnify and hold harmless
Landlord against all liability, loss or damage which Landlord shall suffer by
reason of such non-compliance or contest, including reasonable attorney's fees
and other expenses reasonably incurred by Landlord;
(c) such non-compliance or contest shall not constitute or
result in any violation of any superior lease or superior mortgage, or if such
superior lease and/or superior mortgage shall permit such non-compliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at the
expense of Tenant; and
(d) Tenant shall keep Landlord advised as to the status of
such proceedings.
Without limiting the application of Subsection (a) above thereto, Landlord shall
be deemed subject to prosecution for a crime within the meaning of said
Subsection, if Landlord, or any officer of Landlord individually, is charged
with a crime of any kind or degree whatever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or such officer (as
the case may be) is required to plead or answer thereto.
10.03 During the Term of the Lease, Tenant shall not cause or permit
"HAZARDOUS MATERIALS" (as defined below) to be used, transported, stored,
released, handled, produced or installed in, on or from, the Demised Premises
and shall maintain the Demised Premises in compliance with all federal, state
and local laws, ordinances, rules, regulations and
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policies, now existing or hereafter amended, enacted or promulgated, regarding
the environment, health or safety which apply to the Demised Premises or its
use, including, without limitation, the New Jersey Water Pollution Control Act,
N.J.S.A. 58:10-23.11 et seq.; the New Jersey Water Pollution Control Act,
N.J.S.A. 13:1E-1 et seq., and the New Jersey Underground Storage of Hazardous
Substances Act, N.J.S.A. 58:10A-21 et seq. and Hazardous Discharge Site
Remediation Act, N.J.S.A. 58:10B-1 et seq. The term "Hazardous Materials" shall,
for the purposes hereof, mean (a) those substances included within the
definitions of any one or more of the terms "hazardous substances," "HAZARDOUS
MATERIALS," "TOXIC SUBSTANCES," and "HAZARDOUS WASTE" in CERCLA, RCRA and
Hazardous Materials Transportation Act, as amended, 49 U.S.C. Section 1801 et
seq., and in the regulations promulgated pursuant to such laws; and (b) such
other substances, materials and wastes as are regulated under applicable local,
state or federal environmental laws or regulations, or which are classified as
hazardous or toxic, under federal, state or local environmental laws or
regulations; and (c) any materials, wastes or substances that are (i) petroleum;
(ii) friable asbestos; (iii) polychlorinated biphenyls; (iv) designated as a
"HAZARDOUS SUBSTANCE" pursuant to Section 311 of the Clear Water Act, as amended
by 13 U.S.C. ss. 307 of the Clear Water Act (32 U.S.C. ss. 1217); (v) flammable
explosives; or (vi) radioactive materials. The parties agree that nothing
contained in this Section 10.03 shall prohibit, and Landlord herewith consents
to, Tenant's use and maintenance in the Demised Premises of limited quantities
of substances reasonably necessary in the ordinary operation and maintenance of
office equipment, provided such substances are used, transported, stored,
released, handled, and maintained within the Demised Premises in accordance with
all applicable laws and regulations. In the event any asbestos containing
material is exposed during any of Tenant's Work or Tenant's Changes (as defined
in Article 13) which exposure results from the
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entry (whether or not authorized by Landlord) by Tenant into any column(s)
located in the Demised Premises in which vertical pipes and/or shaftways pass
through the Demised Premises, or other core areas of the Demised Premises and
which exposure, but for such entry, would not occur), Tenant will remove same as
required by applicable law at its sole cost and expense. Upon completion of
Tenant's Work or Tenant's Changes, Tenant shall provide Landlord with a written
certification from Tenant's general contractor or architect to the effect that
no Hazardous Materials have been incorporated into the Demised Premises by
reason of Tenant's Work or Tenant's Changes. In the event of a breach of the
provisions of this Section 10.03, Landlord shall, in addition to all of its
rights and remedies under this Lease and pursuant to law, require Tenant to
remove any such Hazardous Materials from the Demised Premises in the manner
prescribed for such removal by the applicable law, ordinance, rule or
regulation. The provisions of this Section 10.03 shall survive the Expiration
Date or sooner termination of this Lease. Landlord hereby agrees to promptly
remove or cause the removal of any Hazardous Material from the Building as
required by applicable law except with respect to Hazardous Materials required
to be removed by Tenant pursuant to this Lease. Landlord warrants and represents
that the Demised Premises are, and shall be as of the Commencement Date, free of
all Hazardous Materials. Tenant represents and warrants that it is responsible
for any Hazardous Materials brought into the Demised Premises after the
Commencement Date or resulting from Tenant's Work.
10.04 Tenant shall comply with all of the provisions of the Industrial
Site Recovery Act, N.J.S.A. 13:1K-6 et seq. and the regulations promulgated
thereunder, as they relate to Tenant's use of the Demised Premises.
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10.05 Tenant agrees that it shall be solely responsible, at its
expense, to cause the Demised Premises to be, and to remain throughout the term
hereof, in compliance with the provisions of the Americans With Disabilities Act
of 1990 and any municipal laws, ordinances, rules and regulations of like
import, and any regulations adopted and amendments promulgated pursuant to any
of the foregoing (hereinafter referred to collectively as the "ADA"), and
Landlord shall have no obligation whatsoever in connection therewith. Within ten
(10) days after receipt, Tenant shall advise Landlord in writing, and provide
Landlord with copies of, any notices alleging violations of the ADA relating to
any portion of the Demised Premises; any claims made or threatened in writing
regarding non-compliance with the ADA and relating to any portion of the Demised
Premises; or any governmental or regulatory actions or investigations instituted
or threatened regarding non-compliance with the ADA and relating to any portion
of the Demised Premises. Landlord represents that the Demised Premises and the
Building shall be in compliance with the ADA as of the Commencement Date.
ARTICLE 11
INSURANCE
11.01 Tenant shall not violate, or permit the violation of, any
condition imposed by the standard fire insurance policy then issued for similar
buildings in the same municipality and county as the Building, and shall not do,
permit anything to be done, keep, or permit anything to be kept, in the Demised
Premises which would (a) subject Landlord to any liability or responsibility for
personal injury, death or property damage; (b) increase the fire or other
casualty insurance rate on the Building or the property therein over the rate
which would otherwise then be in effect (unless Tenant pays the resulting
premium as provided in Section 11.04); or (c) result in insurance companies of
good standing refusing to insure the Building or any of such property in amounts
reasonably satisfactory to Landlord, although the use of the
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Demised Premises for the Permitted Uses per se shall not constitute a violation
of the foregoing provisions. Tenant understands and agrees that if any insurance
premiums are caused to be increased as a result of Tenant's mere occupancy in
the Building or by Tenant's use of the Demised Premises, Tenant shall be solely
responsible for the payment of the incremental amount.
11.02 Tenant covenants to provide on or before the Commencement Date
and to keep in force during the term hereof and during any other time that
Tenant or any person claiming by, through or under Tenant is in possession of,
or is otherwise using or occupying, any portion of the Demised Premises, the
following insurance coverage which coverage shall be effective on the
Commencement Date:
(a) commercial general liability insurance, with broad form
endorsement, containing an omnibus named insured provision naming Landlord as an
additional insured, and the holders of all superior mortgages, the lessors under
all superior leases, Landlord's agents and all other persons and entities
designated by Landlord (but only to the extent that Landlord specifically
requests such holders, lessors, agents and other persons and entities to be so
named) and protecting Landlord, Tenant, and all such other additional insureds,
against (x) all claims, demands or actions for injury to, or death of, persons
or property, arising from, related to, or in any way connected with the use or
occupancy of the Demised Premises, or caused by actions or omissions to act of
Tenant, its agents, servants and contractors, or of any person or entity
claiming by, through or under Tenant, and (y) all accidents occurring in or
about the Demised Premises or any appurtenances thereto. Such policy shall have
limits of liability of not less than $3,000,000.00 combined single limit
coverage on a per occurrence basis, including property damage. Landlord and
Tenant agree that the amount of coverage specified herein is
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subject to change in the event the Permitted Use set forth in Section 2.01
changes. Such policy shall contain a contractual liability coverage endorsement
with respect to Tenant's indemnification obligations under this Lease, and shall
include independent contractors' coverage. Such insurance may be carried under a
blanket policy covering the Demised Premises and other locations of Tenant, if
any, provided such policy contains an endorsement (A) naming Landlord (and the
above-mentioned other persons and entities) as additional insureds, (B)
specifically referencing the Demised Premises, and (C) guaranteeing a minimum
limit available for the Demised Premises equal to the limits of liability
required under this Lease;
(b) Worker's compensation, and, if required by applicable
law, disability and such other similar insurance, in statutory amounts, covering
all persons that are performing "CHANGES" (as defined in Article 13), or with
respect to whom death or bodily injury claims could be asserted against
Landlord, the Land or the Building, and endorsed to waive subrogation claims in
favor of Landlord, and all other additional insureds requested by Landlord; and
(c) property insurance coverage against all risk of loss or
damage from any cause whatsoever in an amount adequate to cover the cost of
replacement of all of personal property, fixtures, furniture, furnishings,
valuable papers and documents, data, leasehold improvements and equipment,
including Tenant's Work, Tenant's Property and all changes, located in the
Demised Premises;
All such policies shall be issued by companies of recognized responsibility
licensed to do business in New Jersey State and rated by Best's Insurance
Reports or any successor publication of comparable standing and carrying a
rating of A- VIII or better or the then equivalent of such rating, and all such
policies shall contain a provision whereby the same cannot be cancelled or
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modified unless Landlord and any additional insureds are given at least thirty
(30) days prior written notice of such cancellation (hereinafter referred to as
an "INSURANCE CANCELLATION NOTICE") or modification.
Prior to the time such insurance is first required to be carried by Tenant and
thereafter, at least fifteen (15) days prior to the expiration or sooner
termination, or modification of any such policies, Tenant shall deliver to
Landlord either duplicate originals of the aforesaid policies or binding
certificates evidencing such insurance naming Landlord, each Present Additional
Insured and all other additional insureds requested by Landlord as additional
insureds, together with evidence of payment for the policy. Such certificates
shall also verify the primary nature of the coverage and note the waiver of
subrogation in favor of Landlord and all other additional insureds requested by
Landlord. Tenant's failure to provide or keep in force the aforementioned
insurance shall be regarded as a material default hereunder, entitling Landlord
to exercise any or all of the remedies as provided in this Lease in the event of
Tenant's default. In addition, in the event (A) Tenant fails to provide or keep
in force the insurance required by this Lease, at the times and for the
durations specified in this Lease, or (B) if an Insurance Cancellation Notice is
given to Landlord or if such insurance is modified so as to no longer comply
with the provisions of this Article 11 and Tenant shall not have delivered
substitute insurance coverage as set forth in the first sentence of this
paragraph, Landlord shall have the right, but not the obligation, at any time
and from time to time, and without notice, to procure such insurance and or pay
the premiums for such insurance in which event Tenant shall repay Landlord
within five (5) days after demand by Landlord, as additional rent, all sums so
paid by Landlord and any costs or expenses incurred by Landlord in connection
therewith without prejudice to any other rights and remedies of Landlord under
this Lease.
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11.03 (a) Landlord and Tenant shall each secure an appropriate clause
in, or an endorsement upon, each property coverage policy obtained by it and
covering the Building, the Demised Premises, Tenant's Work, Tenant's Property
and "changes" or the personal property, fixtures, furnishings, valuable papers
and documents, data, leasehold improvements and equipment located therein or
thereon, pursuant to which the respective insurance companies waive subrogation
or permit the insured, prior to any loss, to agree with a third party to waive
any claim it might have against said third party. The waiver of subrogation or
permission for waiver of any claim hereinbefore referred to shall extend to the
agents of each party and its employees and, in the case of Tenant, shall also
extend to all other persons and entities occupying or using the Demised
Premises. If and to the extent that such waiver or permission can be obtained
only upon payment of an additional charge then, the party benefiting from the
waiver or permission shall pay such charge upon demand, or shall be deemed to
have agreed that the party obtaining the insurance coverage in question shall be
free of any further obligations under the provisions hereof relating to such
waiver or permission. Tenant shall provide Landlord with a binding certificate
of insurance verifying this waiver in favor of Landlord, and all other
additional insureds requested by Landlord, and their respective employees and
agents. Subject to the foregoing provisions of this Section 11.03, and insofar
as may be permitted by the terms of the insurance policies carried by it, each
party and their respective employees and agents hereby releases the other with
respect to any claim (including a claim for negligence) which it might otherwise
have against the other party for loss, damages or destruction with respect to
its property by fire or other casualty (including rental value or business
interruption, as the case may be) occurring during the term of this Lease or
during the move into and out of the Demised Premises or during any other time
that
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Tenant or any person claiming by, through or under Tenant is in possession of,
or is otherwise using or occupying, any portion of the Demised Premises.
(b) In the event that Tenant shall be unable at any time to
obtain one of the provisions referred to in subsection (a) above, in any of its
insurance policies, Tenant shall cause Landlord to be named in such policy or
policies as one of the additional insureds, but if any additional premium shall
be imposed for the inclusion of Landlord as such an additional insureds,
Landlord shall pay such additional premium upon demand or Tenant shall be
excused from its obligations under subsection (b) with respect to the insurance
policy or policies for which such additional premiums would be imposed. In the
event that Landlord shall have been named as one of the additional insureds in
any of Tenant's policies in accordance with the foregoing, Landlord shall
endorse promptly to the order of Tenant, without recourse, any check, draft, or
order for the payment of money representing the proceeds of any such policy, or
any other payment growing out of or connected with said policy, and Landlord
hereby irrevocably waives any and all rights in and to such proceeds and
payments.
(c) In the event that Landlord shall be unable at any time\
to obtain one of the provisions referred to in subsection (a) in any of its
insurance policies, Landlord shall, at Tenant's option, cause Tenant to be named
in such policy or policies as one of the additional insureds, but if any
additional premium shall be imposed for the inclusion of Tenant as such an
additional insureds, Tenant shall pay such additional premium upon demand. In
the event that Tenant shall have been named as one of the additional insureds in
any of Landlord's policies in accordance with the foregoing, Tenant shall
endorse promptly to the order of Landlord, without recourse, any check, draft,
or order for the payment of money representing the proceeds of any
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such policy, or any other payment growing out of or connected with said policy,
and Tenant hereby irrevocably waives any and all rights in and to such proceeds
and payments.
11.04 If, by reason of a failure of Tenant to comply with the
provisions of Section 10.01 or Section 11.01, the rate of fire insurance with
extended coverage on the Building or equipment or other property of Landlord
shall be higher than it otherwise would be, Tenant shall reimburse Landlord, on
demand, for that part of the premiums for fire insurance and extended coverage
paid by Landlord because of such failure on the part of Tenant.
11.05 Landlord may, from time to time, require that the amount of the
insurance to be provided and maintained by Tenant under Section 11.02 hereof be
increased so that the amount thereof adequately protects Landlord's interest but
in no event in excess of the amount that would be required to be carried by
other tenants occupying similarly sized space for the purposes set forth in
Section 2.01 located in similar office buildings in the same municipality as the
Building.
11.06 If any dispute shall arise between Landlord and Tenant with
respect to the incurring or the amount of any additional insurance premium
referred to in Section 11.03 or the increase in amount of insurance referred to
in Section 11.05, the dispute shall be determined by arbitration.
11.07 A schedule or make up of rates for the Building or the Demised
Premises, as the case may be, issued by the New Jersey Fire Insurance Rating
Organization or other similar body making rates for fire insurance and extended
coverage for the premises concerned, shall be conclusive evidence of the facts
therein stated and of the several items and charges in the fire insurance rate
with extended coverage then applicable to such premises.
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11.08 Each policy evidencing the insurance to be carried by Tenant
under this Lease shall contain a clause that such policy and the coverage
evidenced thereby shall be primary with respect to any policies carried by
Landlord, and that any coverage carried by Landlord shall be excess insurance.
11.09 Landlord agrees to maintain:
(a) commercial general liability insurance protecting
against (x) all claims, demands or actions for injury to, or death of, persons
or property, arising from, related to, or in any way connected with the use or
occupancy of the common areas of the Building, or caused by actions or omissions
to act of Landlord, tenants, their agents, servants and contractors, or of any
person or entity claiming by, through or under Landlord or any tenant, and (y)
all accidents occurring in or about the common areas of the Building or any
appurtenances thereto. Such policy shall have limits of liability of not less
than Five Million Dollars ($5,000,000.00) combined single limit coverage on a
per occurrence basis, including property damage. Such insurance may be carried
under a blanket policy covering the Building and other real property of
Landlord; and
(b) property insurance coverage against all risk of loss or
damage in an amount adequate to cover the cost of replacement of the Building.
11.10 Tenant shall obtain an Environmental Liability Policy ("ELP")
issued by a company of recognized responsibility licensed to do business in the
State of New Jersey for the Building and Tenant's operations within the Demised
Premises and same shall be subject to Landlord's prior review and written
approval, which shall not be unreasonably withheld or delayed. In this regard,
the Parties expressly agree that no entry shall be allowed by Tenant before
satisfaction of this clause. for environmental liability insurance coverage in
the amount of
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$1,000,000.00. In the event Landlord requires ELP coverage in excess of
$1,000,000.00, the additional cost of the premium shall be at Landlord's cost
and expense. Tenant shall maintain the ELP in full force and effect throughout
the Term of this Lease and for so long and for such time as Tenant is
responsible for the Demised Premises under the terms of this Lease. In the event
Tenant is unable to obtain such ELP within thirty (30) days after full execution
of this Lease, Landlord shall have the right, at Landlord's sole option, to
terminate this Lease by giving written notice to Tenant setting the termination
effective Date ("TERMINATION EFFECTIVE DATE"). The parties agree that neither
party shall have any further liability to the other after the Termination
Effective Date, except as otherwise provided for in this Lease with respect to
matters that survive the termination or expiration of this Lease and for sums
owing but unpaid under the provisions of this Lease. If any use, action or
activity by Tenant shall increase the ELP insurance rate on Demised Premises,
the Building or the property therein over the rate which would otherwise then be
in effect, Tenant agrees to be responsible and to reimburse Landlord for such
increased amount in excess of an increase of 15% over the then current premium,
with Landlord being responsible for any increase up to 15%.
ARTICLE 12
RULES AND REGULATIONS
12.01 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit C, 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
Demised Premises except as required by any governmental law, rule, regulation,
ordinance or similar decree; provided, however, that in case of any conflict
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or inconsistency between the provisions of this Lease and any of the Rules and
Regulations as originally promulgated or as changed, the provisions of this
Lease shall control.
12.02 Nothing in this Lease contained 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. However,
Landlord shall not enforce any of the Rules and Regulations in such manner as to
discriminate against Tenant or anyone claiming under or through Tenant.
ARTICLE 13
TENANT'S CHANGES
13.01 Tenant may from time to time during the term of this Lease, at
its expense, make such other alterations, additions, installations,
substitutions, improvements and decorations (hereinafter collectively referred
to as "changes" and, as applied to changes provided for in this Article,
"TENANT'S CHANGES") in and to the Demised Premises, excluding structural
changes, as Tenant may reasonably consider necessary for the conduct of its
business in the Demised Premises, with the prior written consent of Landlord,
which consent shall not be unreasonably withheld, delayed or conditioned, on the
following conditions:
(a) the outside appearance or the strength of the Building
or of any of its structural parts shall not be affected;
(b) no part of the Building outside of the Demised Premises
shall be physically affected and in no event may Tenant install or maintain any
window air-conditioning unit;
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(c) the proper functioning of any of the mechanical,
electrical, sanitary and other service systems of the Building shall not be
adversely affected or the usage of such systems by Tenant shall not be
increased;
(d) all Tenant's Changes shall be consistent with the
character and quality of the Building, and its landmark status, if any;
(e) in performing the work involved in making such changes,
Tenant shall be bound by and observe all of the conditions and covenants
contained in the following Sections of this Article;
(f) before proceeding with any Tenant's Changes, Tenant will
advise Landlord thereof and shall submit to Landlord proof reasonably
satisfactory of the cost thereof and the name of the contractor who will be
performing Tenant's Changes for Landlord's approval, which approval shall not be
unreasonably withheld or delayed. In selecting a contractor, Tenant will allow a
contractor selected by Landlord to bid on the job but nothing herein shall be
deemed to require Tenant to select such contractor. Additionally, before
proceeding with any Tenant's Changes other than those of a decorative nature
such as painting, wall coverings and floor coverings, Tenant shall submit to
Landlord plans and specifications and all changes and revisions thereto, for the
work to be done for Landlord's approval (which approval shall not be
unreasonably withheld or delayed except in connection with Tenant's Changes
which relate to items set forth in Section 13.01(a)-(c)) above and Tenant shall,
upon demand of Landlord, pay to Landlord the reasonable costs incurred by
Landlord for the review of such plans and specifications and all changes and
revisions thereto by its architect, engineer and other consultants. Any
mechanical and electrical engineering plans required in connection with Tenant's
Changes shall be prepared at Tenant's sole cost and expense, by the Building's
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engineer and any plans and specifications required to be submitted to, or filed
with, any governmental agency shall be submitted or filed by the Building's
expediter, at Tenant's sole cost and expense. A complete set of the plans and
specifications shall be submitted by Tenant to both the Building manager at the
Building and the Property Manager at Landlord's address. Tenant agrees that any
review or approval by Landlord of any plans and specifications is solely for
Landlord's benefit, and without any representation or warranty whatsoever to
Tenant with respect to the adequacy, correctness or efficiency thereof or
otherwise. The granting by Landlord of its approval to such plans and
specifications shall in no manner constitute or be deemed to constitute a
judgment or acknowledgment by Landlord as to their legality or compliance with
laws and/or requirements of public authorities. Additionally, the execution by
Landlord of any application by or on behalf of Tenant for any permits,
approvals, licenses or permission shall not be deemed to be an approval by
Landlord of any of Tenant's plans and specifications. Landlord may as a
condition of its approval require Tenant to make revisions in and to the plans
and specifications and to post a bond or other security reasonably satisfactory
to Landlord to insure the completion of such change.
13.02 Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's
Changes and for final approval thereof upon completion and shall furnish copies
thereof to Landlord, and shall cause Tenant's Changes to be performed in
compliance therewith and with all applicable laws and requirements of public
authorities, and with all applicable requirements of insurance bodies, and in
good and workmanlike manner, using first-class materials and equipment. Tenant's
Changes shall be performed in such manner as not to unreasonably interfere with
or delay and (unless Tenant shall indemnify Landlord therefor to the latter's
reasonable satisfaction) as not to impose any
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additional expense upon, Landlord in the renovation, maintenance or operation of
the Building or any portion thereof. Throughout the performance of Tenant's
Changes, Tenant, at its expense, shall carry, or cause to be carried, worker's
compensation insurance in statutory limits with a waiver of subrogation in favor
of Landlord, the Present Additional Insureds and all other additional insureds
as requested by Landlord and otherwise as set forth in Section 11.02(b) and
commercial general liability insurance for any occurrence in or about the
Building with limits and otherwise as set forth in Section 11.02(a) hereof.
Tenant shall furnish Landlord with satisfactory evidence that such insurance is
in effect at or before the commencement of Tenant's Changes and, on request, at
reasonable intervals thereafter during the continuance of Tenant's Changes. If
any of Tenant's Changes shall involve the removal of any fixtures, equipment or
other property in the Demised Premises which are not Tenant's Property (as
defined in Article 14), such fixtures, equipment or other property shall be
promptly replaced, at Tenant's expense, with first-class fixtures, equipment or
other property (as the case may be) of like utility and at least equal value
unless Landlord shall otherwise expressly consent in writing and Tenant shall,
upon Landlord's request, deliver any such fixtures, equipment or property so
removed to Landlord. All electrical and plumbing work in connection with
Tenant's Changes shall be performed by contractors or subcontractors licensed
therefor by all governmental agencies having or asserting jurisdiction. Upon
completion of Tenant's Changes, Tenant shall furnish a complete set of "as
built" plans and specifications to both the Building manager at the Building and
to Landlord.
13.03 Tenant shall defend, indemnify and save Landlord harmless from
and against (a) all mechanic's and other liens filed, and (b) all violations
issued by the Department of Buildings or any other public or quasi-public
authority having or asserting jurisdiction, in
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connection with or arising from, or otherwise connected with, any Changes
(including Tenant's Work) or any other work claimed to have been done for, or
materials furnished to, Tenant or any person or entity claiming by, through or
under Tenant, whether or not done or furnished pursuant to this Article,
including, without limitation, the liens of any security interest in,
conditional sales of, or chattel mortgages upon, any materials, fixtures or
articles so installed in and constituting part of the Demised Premises, and
against all costs, expenses and liabilities incurred or paid in connection with
any such lien, violation, security interest, conditional sale, or chattel
mortgage or any action or proceeding brought thereon. Tenant, at its expense,
shall satisfy, cancel or discharge all such liens and violations, and remove
same from the record (or may bond such liens) within fifteen (15) days after
Landlord makes written demand therefor, provided, however, that the granting of
such fifteen (15) days shall not effect Tenant's other obligations and
liabilities under this Lease, including the indemnification obligation set forth
in this Section.
13.04 Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article 13 or any other provision of this Lease shall not be
done in a manner which would create any work stoppage, picketing, labor
disruption or dispute or violate Landlord's union contracts affecting the Land
and/or Building nor interference with the business of Landlord or any Tenant or
occupant of the Building. In the event of the occurrence of any condition
described above arising from the exercise by Tenant of its right pursuant to the
provisions of this Article 13 or any other provision of this Lease, Tenant
shall, immediately upon notice from Landlord, cease the manner of exercise of
such right giving rise to such condition. The parties agree that in such
instance, Landlord will suffer irreparable harm for which money damages will be
an insufficient remedy. For that reason, in the event Tenant fails to cease such
manner of exercise of its rights as aforesaid, Landlord, in addition to any
rights otherwise available to it
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under this Lease and pursuant to law and equity, shall have the right to a court
order granting an injunction against Tenant's manner of exercise of its rights
as aforesaid, application for such injunction to be made without notice. With
respect to Tenant's Changes, Tenant shall make all arrangements for, and pay all
expenses incurred in connection with use of the freight elevators servicing the
Demised Premises.
13.05 All Tenant's Changes, when installed or attached to the Demised
Premises, shall become the property of Landlord and shall be surrendered with
the Demised Premises and as part thereof, upon the expiration or earlier
termination of this Lease, without compensation to Tenant. However, if Landlord
shall so elect, which election shall be specified in writing to Tenant at the
time that Landlord approves particular Tenant's Changes, Tenant, at its sole
cost and expense, shall remove such Tenant's Changes prior to the expiration or
earlier termination of this Lease and repair all damage caused by such removal
and restore the Demised Premises to its original condition before such Tenant's
Changes were made, ordinary wear and tear excepted and damage by casualty which
tenant is not required to restore hereunder ("TENANT CHANGES SUBJECT TO
RESTORAL"). For the purposes of the preceding sentence, the term "original
condition" shall mean the condition of the Demised Premises as of the
Commencement Date of the Early Entry Agreement. Relative to those Tenant Changes
Subject To Restoral, Landlord reserves the right at the expiration or earlier
termination of this Lease to designate certain Tenant Changes Subject To
Restoral to be left in place and thereby relieve Tenant of the responsibility of
removing and restoring only those specific Tenant Changes Subject To Restoral so
designated by Landlord to be left. Tenant shall not be required to restore any
alterations which are part of the Tenant Improvements. Nothing herein contained
shall be construed in any way to restrict Tenant's own movable trade fixtures or
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equipment installed by Tenant, which fixtures and equipment shall remain the
property of Tenant and may be removed by Tenant at the termination of this Lease
subject, however, to, and in accordance with, the provisions of Article 24
hereof. The provisions of this Section are subject to the terms and conditions
of any fee mortgage to which this Lease may be subordinate, including Tenant's
obtaining consent of mortgagee, if required. If mortgagee consent is required,
Landlord shall promptly furnish Tenant with the name and address of mortgagee.
ARTICLE 14
TENANT'S PROPERTY
14.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the term
of this Lease, whether or not by or at the expense of Tenant, shall be and
remain a part of the Demised Premises, shall be deemed the property of Landlord
and shall not be removed by Tenant, except as hereinafter in this Article
expressly provided.
14.02 All paneling, movable partitions, lighting fixtures, special
cabinet work, other business and trade fixtures, machinery and equipment,
communications equipment and office equipment, racking, laboratory equipment
whether or not attached to or built into the Demised Premises, which are
installed in the Demised Premises by or for the account of Tenant, without
expense to Landlord, and can be removed without permanent structural damage to
the Building, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the Demised Premises, (all of
which are sometimes referred to as "TENANT'S PROPERTY") shall be and shall
remain the property of Tenant and may be removed by it at any time during the
term of this Lease; provided that if any of Tenant's Property is removed, Tenant
or any party or person entitled to remove same shall repair or pay the cost of
repairing any damage to the Demised Premises or to the Building resulting from
such removal. Any
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equipment or other property for which Landlord shall have granted any allowance
or credit to Tenant or which has replaced such items originally provided by
Landlord at Landlord's expense shall not be deemed to have been installed by or
for the account of Tenant, without expense to Landlord, and shall not be
considered Tenant's Property.
14.03 At or before the Expiration Date, or the date of any earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property which is not attached to, or built into, the Demised
Premises except such items thereof as Tenant shall have expressly agreed in
writing with Landlord were to remain and to become the property of Landlord, and
shall fully repair any damage to the Demised Premises or the Building resulting
from such removal. Tenant's obligation herein shall survive the termination of
the lease.
14.04 Any other items of Tenant's Property (except money, securities
and other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its property
or may be disposed of, without accountability, at Tenant's expense in such
manner as Landlord may see fit.
14.05 (a) or purposes of this Lease, "SPECIALTY INSTALLATION(S)" shall
mean installations consisting of vaults, internal staircases and slab
penetration, dumbwaiters, vertical (between floors (if more than one) of the
Demised Premises) transportation systems and other installations made by or at
the direction of Tenant which penetrate the slabs between the floors (if more
than one) of the Demised Premises, which Landlord shall identify as such at the
time that Landlord grants its consent to any proposed Tenant's Work. Upon the
Expiration Date or
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sooner termination of this Lease, Tenant shall, at its sole cost and expense,
remove all Specialty Installation(s) from the Demised Premises and restore all
slab and wall penetrations to the condition that existed prior to such
penetrations (such removal and repair work being hereinafter referred to as the
"RESTORATION WORK") except that prior to commencing such Restoration Work,
Tenant shall notify Landlord thereof and, if Landlord shall advise Tenant,
within five (5) days of receipt of such notice, that it wishes any Specialty
Installations to remain, Tenant shall not perform Restoration Work with respect
to that particular Specialty Installation(s).
(b) Tenant's obligation and liability with respect to the
removal of Specialty Installation(s) and the performance of the Restoration Work
shall survive the Expiration Date (as same may be extended) or sooner expiration
or termination of this Lease.
ARTICLE 15
REPAIRS AND MAINTENANCE
15.01 Tenant shall maintain the Demised Premises (including Tenant's
equipment, personal property and trade fixtures located in the Demised Premises)
in their condition at the time they were delivered to Tenant, reasonable wear
and tear excepted, except for damage by casualty which Tenant is not required to
restore hereunder. Tenant shall, at Tenant's sole cost and expense, make all
interior non-structural repairs to the Demised Premises as and when needed to
preserve the Demised Premises in good condition and working order, damage from
casualty excepted. Landlord shall be responsible for operating, maintaining, and
repairing the Building including, but not limited to, maintenance, repairs and
replacements including all structural and non-structural repairs; maintenance,
repair and replacement of all Building systems including, but not limited to,
electrical and plumbing; all roof repairs and replacement (including snow
removal from the roof, if required, and any roof drainage systems); maintenance,
repairs and replacement of the parking areas, driveways and sidewalks;
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maintenance of the Land and grounds; and ice and snow removal. Tenant shall pay
as Additional Rent under the terms set forth in Article 5 of this Lease Tenant's
Proportionate Share of all costs incurred by Landlord for the maintenance and
repairs set forth in the preceding sentence. Except if required by the
negligence or other fault of Landlord or its employees, agents or contractors,
Tenant, at its expense, shall replace all scratched, damaged or other glass in
or about the Demised Premises and shall be responsible for all repairs,
maintenance and replacement of interior doors and wall and floor coverings in
the Demised Premises and, for the repair and maintenance of all lighting
fixtures therein. All repairs, except for emergency repairs, made by Tenant as
provided herein shall be performed by contractors or subcontractors approved in
writing by Landlord prior to commencement of such repairs, which approval shall
not be unreasonably withheld or delayed. To the best of Landlord's knowledge,
the HVAC, electrical and plumbing systems and components serving the Demised
Premises shall be in good working order as of the Commencement Date.
15.02 Except as expressly otherwise provided in this Lease, Landlord
shall have no liability to Tenant by reason of any inconvenience, annoyance,
interruption or injury to business arising from Landlord, Tenant or others
making or failing to make any repairs or changes which, with respect to
Landlord, Landlord is required or permitted by this Lease, or required by law to
make, in or to any portion of the Building or the Demised Premises, or in or to
the fixtures, equipment or appurtenances of the Building or the Demised
Premises, provided that Landlord shall use due diligence in making any repairs
and shall perform such repair work, except in case of emergency, at times
reasonably convenient to Tenant and otherwise in such manner as will not
materially interfere with Tenant's use of the Demised Premises.
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15.03 Throughout the performance of any repairs and maintenance,
Tenant, at its expense, shall carry, or cause to be carried, worker's
compensation insurance in statutory limits with a waiver of subrogation in favor
of Landlord and all other additional insureds as requested by Landlord and
otherwise as set forth in Section 11.02(b) and commercial general liability
insurance for any occurrence in or about the Building with limits and otherwise
as set forth in Section 11.02(a) hereof Tenant shall furnish Landlord with
satisfactory evidence that such insurance is in effect at or before the
commencement of repairs and maintenance and, on request, at reasonable intervals
thereafter during the continuance of repairs and maintenance. Tenant shall
require all contractors performing work in the Building or on the Land to
provide a certificate of insurance naming Landlord as an additional insured.
15.04 Tenant shall defend, indemnify and save Landlord harmless from
and against (a) all mechanic's and other liens filed, and (b) all violations
issued by the Department of Buildings or any other public or quasi-public
authority having or asserting jurisdiction, in connection with or arising from,
or otherwise connected with, any repairs or maintenance or any other work
claimed to have been done for, or materials furnished to, Tenant or any person
or entity claiming by, through or under Tenant, whether or not done or furnished
pursuant to this Article.
ARTICLE 16
ELECTRICITY
16.01 (a) Electrical service shall be provided by Landlord to the
Demised Premises. Upon receipt of the monthly invoice for electricity charges
from Landlord, Tenant shall pay, as Additional Rent, the full cost of all the
rents or charges for electric use by Tenant in the Demised Premises which are or
may be charged to the Landlord by the suppliers thereof to the Building during
the term hereof.,
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(b) Any additional risers, feeders or other equipment or
service proper or necessary to supply Tenant's electrical requirements, will,
upon written request of Tenant, be installed by Landlord, at the cost and
expense of Tenant, if in Landlord's reasonable judgment, the same are necessary
and will not cause permanent damage or injury to the Building or the Demised
Premises or cause or create a dangerous or hazardous condition or entail
excessive or unreasonable alterations, repairs or expense or interfere with or
disturb other tenants or occupants. Rigid conduit only will be allowed except
that notwithstanding anything to the contrary herein, the wiring for power may
be put in armored "BX" cable in accordance with all laws and requirements of
public authorities in effect at time of installation. All branch circuit and
feeder wiring shall be tagged at each box or panel. Tags must indicate circuit
numbers and a complete panel directory must be listed in each panel.
(c) Landlord shall have the right to install separate
submeter(s) to measure Tenant's electricity usage, and Tenant shall pay for the
cost of such electricity used on the Demised Premises as Additional Rent based
on the usage recorded on such submeter(s), together with the cost of installing
any risers, submeters, or other facilities that may be necessary to measure such
electricity to the Demised Premises. "ELECTRICITY USAGE" shall mean Tenant's
actual usage of electricity in the Demised Premises as measured by the aforesaid
submeter(s) for each calendar month or such other period as Landlord shall
determine during the term of this Lease and shall include the quantity and peak
demand (kilowatt hours and kilowatts) and all applicable taxes, surcharges,
demand charges, energy charges, fuel adjustment charges, and other adjustments
made from time to time by the public utility company supplying electric current
to the Building or any governmental authority having jurisdiction, subject to
increase by the same percentage as Landlord's cost from its supplier increases
from time to time. Landlord shall xxxx
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Tenant's usage at the service classification of the Building (including all
applicable taxes, surcharges, demand charges, energy charges, fuel adjustment
charges, and other sums payable in respect thereof). Further, Landlord shall
also have the right, at Landlord's option, to have installed by the public
electric utility supplier a direct meter to the Demised Premises which shall
measure usage to the Demised Premises, in which case Tenant shall pay for its
electric usage directly to the supplier thereof. Tenant shall pay for the cost
of installing any risers, meters, or other facilities that may be necessary to
measure such electricity usage directly from the supplier to the Demised
Premises.
16.02 Landlord shall not in anyway be liable or responsible to Tenant
for any loss or damage or expense which Tenant may sustain or incur if either
the quantity or character of electric service is changed or is no longer
available or suitable for Tenant's requirements.
16.03 In no event shall Tenant use or install any fixtures, equipment
or machines the use of which in conjunction with other fixtures, equipment and
machines in the Demised Premises would result in an overload of the electrical
circuits servicing the Demised Premises.
16.04 Tenant covenants and agrees that at all times its use of
electric current shall never exceed the capacity of the then existing feeders to
the Building or the risers or wiring installation. Tenant shall furnish, install
and replace, as required, all lighting tubes, lamps, bulbs and ballasts required
in the Demised Premises, at Tenant's sole cost and expense. All lighting tubes,
lamps, bulbs and ballasts so installed shall become Landlord's property upon the
expiration or sooner termination of this Lease.
16.05 Electric power to the demised premises is 40 xxxxx per square
foot, approximately 2500 amps.
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ARTICLE 17
HEAT, VENTILATING AND AIR-CONDITIONING
17.01 (a) Landlord shall maintain and operate the heating system
(hereafter referred to as the "HEATING system") and, subject to energy
conservation requirements of governmental authorities, shall furnish heat in the
Demised Premises consistent with the standards provided in comparable buildings
in the same municipality as the Building (hereinafter referred to as the "HEAT
SERVICE"). Heat service shall be provided from 8:00 AM to 6:00 PM on Monday
through Friday ("BUSINESS HOURS") except for days (hereinafter referred to as
"holidays") observed by the Federal or New Jersey State government as legal
holidays or the building service employees' union holidays. The cost of fuel for
the heating system and any maintenance and repairs to the heating system shall
be included in and paid by Tenant with Tenant's Proportionate Share of Operating
Expenses.
(b) Air-conditioning shall be provided during Business Hours
to Tenant by the air-conditioning system(s) (hereinafter referred to as the "A/C
SYSTEMS") servicing the Demised Premises. Landlord shall maintain, service,
repair and replace (as required) the AIC Systems. Tenant agrees to notify
Landlord of any required maintenance, service, repair or replacement of the A/C
Systems promptly following Tenant's determination of the requirement therefor.
The cost of fuel for the A/C Systems and any maintenance and repairs to the A/C
Systems shall be included in and paid by Tenant with Tenant's Proportionate
Share of Operating Expenses.
(c) If Tenant shall require heat or air conditioning service
at any times other than during Business Hours (hereinafter referred to as "AFTER
HOURS"), Landlord shall furnish such after hours service upon reasonable advance
notice from Tenant, and Tenant shall pay on demand to Landlord for such after
hour service at the rate of $75.00 per hour with a
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minimum of one hour of service and thereafter in one hour increments. In the
event the after hours service is shared by other tenants, the cost thereof shall
be prorated among all such tenants.
17.02 Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) of the heating system and A/C Systems, rearrangement of partitioning or
opening of windows in the Demised Premises while the heating system and A/C
Systems are in operation which interferes with normal operation of the heat,
ventilation and air-conditioning in the Demised Premises, may require changes in
the heating system and A/C Systems. Such changes, so occasioned, shall be made
by Tenant, at its expense, as Tenant's Changes pursuant to Article 13.
ARTICLE 18
LANDLORD'S OTHER SERVICES
18.01 In those buildings where elevator service is available at the
time this Lease is executed, Landlord, at its expense, shall provide public
elevator service to the floor(s) on which the Demised Premises are situated
during Business Hours, and shall have at least one passenger elevator subject to
call at all other times.
18.02 Tenant, at its expense, shall be responsible for cleaning of the
Demised Premises and trash removal from the Demised Premises.
18.03 Landlord shall furnish hot and cold water to the Demised
Premises for drinking, lavatory and cleaning purposes. The cost of water and
sewer charges shall be included in and paid by Tenant with Tenant's
Proportionate Share of Operating Expenses. If Tenant uses water for any other
purpose Landlord, at Tenant's expense, may install meters to measure Tenant's
consumption of hot and/or cold water for such other purposes and/or steam, as
the case may be. Tenant shall pay for the quantities of cold and hot water shown
on such meters, at Landlord's cost thereof, within ten (10) days of the
rendition of Landlord's bills.
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18.04 Landlord shall furnish gas to the Demised Premises. The cost of
gas charges shall be included in and paid by Tenant with Tenant's Proportionate
Share of Operating Expenses. If Tenant uses gas for any other purpose Landlord,
at Tenant's expense, may install meters to measure Tenant's consumption of gas
for such other purposes. Tenant shall pay for the quantities of gas shown on
such meters, at Landlord's cost thereof, within ten (10) days of the rendition
of Landlord's bills.
18.05 Landlord reserves the right, without any liability to Tenant,
except as otherwise expressly provided in this Lease, to stop service of any of
the heating, ventilating, air conditioning, electric, sanitary, elevator or
other Building systems serving the Demised Premises, or the rendition of any of
the other services required of Landlord under this Lease, whenever and for so
long as may be necessary, by reason of accidents, emergencies, strikes or the
making of repairs or changes which Landlord is required by this Lease or by law
to make or in good xxxxx xxxxx necessary, by reason of difficulty in securing
proper supplies of fuel, steam, water, electricity, labor or supplies, or by
reason of any other cause beyond Landlord's reasonable control. Landlord shall
take reasonable steps to minimize any inconvenience to Tenant in connection with
such stoppage. In the event that any such stoppage shall continue for a period
in excess of five (5) business days and such stoppage is under Landlord's
control to restore, Tenant shall receive an abatement of Rent in proportion to
the area of the Demised Premises so affected, from the date of such stoppage
until all services have been restored.
ARTICLE 19
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
19.01 All except the inside surfaces of all walls, windows and doors
bounding the Demised Premises (including exterior Building walls, core corridor
walls and doors and any core corridor entrance) and any space in or adjacent to
the Demised Premises used for shafts,
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stacks, pipes, conduits, fan rooms, ducts, electric or other utilities, sinks or
other Building facilities, and the use thereof, as well as access thereto
through the Demised Premises for the purpose of operation, maintenance,
decoration and repair, are reserved to Landlord.
19.02 Tenant shall permit Landlord to install, use, replace and
maintain pipes, ducts and conduits within the demising walls, bearing columns
and ceilings of the Demised Premises, provided that same shall not unreasonably
interfere with Tenant's use of the Demised Premises.
19.03 Landlord and/or Landlord's employees, agents and contractors
may, upon reasonable advance oral or written notice (except in emergency where
no notice shall be required) at reasonable times and, except for emergencies and
under the provisions of Section 19.04, below, when accompanied by a
representative of Tenant, have access to, enter and/or pass through the Demised
Premises or any part thereof, (i) to examine the Demised Premises and/or to show
the Demised Premises to the fee owners, lessors of superior leases, holders of
superior mortgages, or prospective purchasers, mortgagees or Iessees of the
Demised Premises (or any part thereof) or of the Building (or any part thereof),
(ii) for the purpose of making such repairs, replacements, improvements or other
changes in or to the Demised Premises or other parts of the Building (including
the facilities or fixtures of the Demised Premises or other parts of the
Building), as may be provided for by this Lease, as may be mutually agreed upon
by the parties, as Landlord may be required or permitted to make under this
Lease or by law and/or requirement of public authorities or in order to repair
and maintain the Demised Premises or other parts of the Building, or as Landlord
may deem necessary or reasonably desirable, it being understood that
non-emergency repairs will be done by the manufacturing practices and protocol
approved by the Food and Drug Administration ("FDA") provided that Tenant shall
be responsible to sufficiently
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instruct Landlord, its agents or contractors in such practices and protocols and
that Tenant shall be fully responsible for any additional costs incurred in
complying with such procedures and protocols; emergency repairs are specifically
excluded from Landlord's obligation in connection with adherence to FDA
procedures and protocols. In an emergency situation, Landlord will make
reasonable efforts to contact Tenant's emergency contact person whose name and
methods of contacting shall be provided by Tenant to Landlord in writing; (iii)
to determine whether Tenant is complying with all of its obligations under this
Lease, and/or (iv) to post written notices of non-responsibility or similar
notices. Landlord shall be allowed to take all materials into and upon the
Demised Premises that may be reasonably required for such repairs, changes,
repainting or maintenance to the Demised Premises only, without liability to
Tenant, but Landlord shall not unreasonably interfere with Tenant's use of the
Demised Premises and shall not store materials overnight in the Demised Premises
except for during restoral or repair conditions in which removal of the
materials in order to continue the work the next day would be unreasonable.
Landlord and/or Landlord's employees, agents and contractors, as well as
emergency personnel (such as, but not limited to, firemen, policemen and utility
workers) shall also have the right to enter on and/or pass through the Demised
Premises, or any part thereof, at such times as such entry shall be required by
circumstances of emergency affecting the Demised Premises or the Building. In
such circumstances of emergency, if Tenant is not present in the Demised
Premises to open or permit Landlord and/or Landlord's employees, agents and
contractors and/or such emergency personnel, access or entry to or through the
Demised Premises, then Landlord and/or Landlord's employees, agents and
contractors and/or such emergency personnel, as the case may be, may enter the
Demised Premises whenever such access or entry is permitted, required or
otherwise provided for under this Lease, by master key (if readily available) or
forcibly, and such
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entry and access shall not constitute an actual or constructive eviction, impose
any liability upon Landlord or Landlord's employees, agents and contractors, or
affect any of Tenant's obligations under this Lease.
19.04 During the period of nine (9) months prior to the Expiration
Date Landlord may exhibit the Demised Premises to prospective tenants.
19.05 Landlord reserves the right, at any time, without incurring any
liability to Tenant therefor, and without it constituting an actual or
constructive eviction, to make such changes in or to the Building and the
fixtures and equipment thereof, as well as in or to the size, composition,
number, arrangement or location of the public entrances, doors, doorways, halls,
passages, elevators, escalators and stairways and other public portions thereof,
as it may deem necessary or desirable, provided that (a) the services required
to be provided to Tenant pursuant to the provisions of this Lease shall not be
adversely affected, and (b) the size of the Demised Premises shall not be
reduced and (c) Tenant shall, at all times, have ingress and egress to and from
the Building and the Demised Premises.
19.06 Landlord may adopt any name for the Building. Landlord reserves
the right to change the name or address of the Building at any time.
19.07 For the purposes of Article 19, the term "LANDLORD" shall
include lessors of leases and the holders of mortgages to which this Lease is
subject and subordinate as provided in Article 7.
19.08 Any reservation in this Lease of a right by Landlord to enter
upon the Demised Premises and to make or perform any repairs, alterations or
other work in, to or about the Demised Premises which, in the first instance, is
the obligation of Tenant pursuant to this Lease shall not be deemed to: (i)
impose any obligation on Landlord to do so, (ii) render
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Landlord liable (to Tenant or any third party) for the failure to do so, or
(iii) relieve Tenant from any obligations to indemnify Landlord as otherwise
provided elsewhere in this Lease
19.09 Landlord agrees that, subject to the provisions of Section
21.03, access to the Demised Premises and the Building will be available to
Tenant 24 hours per day, 7 days per week, subject to Landlord's reasonable
security measures for the Building.
ARTICLE 20
NOTICE OF ACCIDENTS
20.01 Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of (i) any accident in or about the Demised Premises for which
Landlord might be liable, (ii) all fires in the Demised Premises, (iii) all
damages to or defects in the Demised Premises, including the fixtures, equipment
and appurtenances thereof, for the repair of which Landlord might be
responsible, and (iv) all damage to or defects in any parts or appurtenances of
the Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator and other systems located in or passing through the Demised Premises or
any part thereof.
ARTICLE 21
NON-LIABILITY AND INDEMNIFICATION
21.01 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage or loss,
it being understood that no property, other than such as might normally be
brought upon or kept in the Demised Premises as an incident to the reasonable
use of the Demised Premises for the purpose herein permitted, will be brought
upon or be kept in the Demised Premises.
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21.02 Tenant shall indemnify and save harmless Landlord and its agents
against and from (i) any and all claims (x) arising from (A) the conduct or
management of the Demised Premises or of any business therein, or (B) any work
done, or any condition created (other than by Landlord for Landlord's or
Tenant's account) in or about the Demised Premises during the term of this Lease
or during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Demised Premises, or (y) arising from any
negligent or otherwise wrongful act or omission of Tenant or any of its
subtenants or licensees or its or their employees, agents or contractors except
to the extent that such claims are due to the gross negligence or willful
misconduct of Landlord, its agents or employees, and (ii) all reasonable costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon. In case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant, upon notice from
Landlord, shall resist and defend such action or proceeding by attorneys
reasonably acceptable to Landlord, Landlord agreeing that the attorneys for the
insurance company providing Tenant's insurance are acceptable.
21.03 Except as otherwise expressly provided in this Lease, this Lease
and the obligations of Tenant hereunder shall be in no wise affected, impaired
or excused because Landlord is unable to fulfill, or is delayed in fulfilling,
any of its obligations under this Lease by reason of strike, other labor
trouble, governmental pre-emption or priorities or other controls in connection
with a national or other public emergency or shortages of fuel, supplies or
labor resulting therefrom, acts of God or other like cause beyond Landlord's
reasonable control (hereinafter referred to as "UNAVOIDABLE DELAYS").
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ARTICLE 22
DESTRUCTION OR DAMAGE
22.01 If the Building or the Demised Premises shall be damaged or
destroyed by fire or other cause, the rents payable hereunder shall be abated to
the extent that the Demised Premises shall have been rendered untenantable and
for the period from the date of such damage or destruction to the date the
damage shall be repaired or restored in accordance with the provisions of
Section 22.03. If the Demised Premises or a major part thereof shall be totally
(which shall be deemed to include substantially totally) damaged or destroyed or
rendered completely (which shall be deemed to include substantially completely)
untenantable or inaccessible on account of fire or other cause, the rents shall
xxxxx as of the date of the damage or destruction and until Landlord shall
repair, restore and rebuild the Building and the Demised Premises, except for
Tenant's Work, Tenant's Changes and Tenant's Property (which shall be Tenant's
responsibility to repair, restore or rebuild); provided, however, that should
Tenant reoccupy a portion of the Demised Premises for the conduct of its
business during the period the restoration work is taking place and prior to the
date that the same are made completely tenantable, rents allocable to such
portion shall be payable by Tenant from the date of such occupancy.
22.02 (a) If the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other cause, or if the Building shall be so
damaged or destroyed by fire or other cause (whether or not the Demised Premises
are damaged or destroyed) as to require a reasonably estimated expenditure
(hereinafter referred to as a "SUBSTANTIAL CASUALTY EXPENDITURE") of more than
40% of the full insurable value of the Building immediately prior to the
casualty, then in either such case Landlord may terminate this Lease by giving
Tenant notice to such effect within the earlier of (x) four (4) months after the
date of the casualty, or (y) fifteen
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(15) days following Landlord's receipt of insurance proceeds resulting from such
casualty. In case of any damage or destruction mentioned in this Article Tenant
may terminate this Lease on the sixtieth (60th) day following notice
(hereinafter referred to as the "CASUALTY TERMINATION NOTICE") to Landlord, if
(i) Landlord has not completed the making of the required repairs and restored
and rebuilt the Building and the Demised Premises within twelve (12) months from
the date of such damage or destruction; provided, however, the Casualty
Cancellation Notice shall be sent no later than thirty (30) days following the
expiration of such twelve (12) month period; or (ii) a "RESTORATION STATEMENT"
(as hereinafter defined) shall indicate that more than twelve (12) months shall
be required to repair or restore the damage or destruction affecting the Demised
Premises after the occurrence thereof; provided, however, the Casualty
Cancellation Notice shall be sent no later than thirty (30) days following
receipt of the Restoration Statement; or (iii) the damage or destruction shall
require Landlord to make a Substantial Casualty Expenditure; shall occur within
the last twenty-four (24) months of the term hereof; provided, however, the
Casualty Cancellation Notice shall be sent not later than thirty (30) days
following the date of Landlord's Notice to Tenant that a Substantial Casualty
Expenditure shall be required to be made by Landlord.
(b) In the event of any damage or destruction described in
Section 22.02(a) hereof, Landlord shall, within thirty (30) days following
Tenant's written request for a Restoration Statement, which request shall be
made by Tenant, if at all, within thirty (30) days following the date of the
casualty, deliver to Tenant a statement (hereinafter referred to as the
"RESTORATION STATEMENT") prepared by a licensed architect or engineer selected
by Landlord setting forth such contractor's estimate as to the time required to
repair such damage or destruction, to the extent of Landlord's obligations
therefor as provided in Section 22.01 hereof.
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22.03 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then, whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article provided), Landlord shall repair the damage and
restore and rebuild the Building and/or the Demised Premises, at its expense,
with reasonable dispatch after notice to it of the damage or destruction;
provided, however, that Landlord shall not be required to repair or replace any
of Tenant's Property nor to restore any Tenant's Work or Tenant's Changes.
22.04 No damages, compensation or claim shall be payable by Landlord
for inconvenience, loss of business or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as to not unreasonably interfere with
Tenant's use and occupancy.
22.05 Notwithstanding any of the foregoing provisions of this Article,
if Landlord or the lessor of any superior lease or the holder of any superior
mortgage shall be unable to collect all of the insurance proceeds (including
rent insurance proceeds) applicable to damage or destruction of the Demised
Premises or the Building by fire or other cause, by reason of some action or
inaction on the part of Tenant or any of its employees, agents or contractors,
then, without prejudice to any other remedies which may be available against
Tenant, there shall be no abatement of Tenant's rents, but the total amount of
such rents not abated (which would otherwise have been abated) shall not exceed
the amount of the uncollected insurance proceeds.
22.06 Landlord will not carry insurance of any kind on Tenant's
Property, Tenant's Changes or Tenant's Work, and, except as provided by law or
by reason of its fault or
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its breach of any of its obligations hereunder, shall not be obligated to repair
any damage thereto or replace the same.
22.07 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty providing for such a contingency in the absence of an
express agreement, and any other law of like import, now or hereafter in force,
shall have no application in such case.
ARTICLE 23
EMINENT DOMAIN
23.01 If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this Lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title in such taking (which date is
hereinafter also referred to as the "DATE OF THE TAKING"), and the rents shall
be prorated and adjusted as of such date.
23.02 (a) If only a part of the Building shall be so taken, this Lease
shall be unaffected by such taking, except that Tenant may elect to terminate
this Lease in the event of a partial taking of the Demised Premises if the
remaining area of the Demised Premises shall not be reasonably sufficient for
Tenant to continue feasible operation of its business. Tenant shall give notice
of such election to Landlord not later than thirty (30) days after (i) notice of
such taking is given by Landlord to Tenant, or (ii) the date of such taking,
whichever occurs sooner. Upon the giving of such notice by Tenant this Lease
shall terminate on the date of such taking and the rents shall be prorated as of
such termination date. Upon such partial taking and this Lease continuing in
force as to any part of the Demised Premises, the rents apportioned to the part
taken shall be prorated and adjusted as of the date of taking and from such date
the fixed rent for the Demised Premises and additional
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rent payable pursuant to Article 5 shall be appropriately adjusted according to
the rentable area remaining.
(b) Notwithstanding the foregoing, if twenty-five (25%)
percent or more of the Building is so taken, Landlord may cancel this Lease by
written notice to Tenant given within thirty (30) days of such taking, provided
that Landlord shall also terminate the leases of all other tenants in the
Building.
23.03 Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Article without
deduction therefrom for any estate vested in Tenant by this Lease and Tenant
shall receive no part of such award, except as hereinafter expressly provided in
this Article. Tenant hereby expressly assigns to Landlord all of its right,
title and interest in or to every such award. Notwithstanding anything herein to
the contrary, Tenant may, at its sole cost and expense, make a claim with the
condemning authority for Tenant's moving expenses, the value of Tenant's
fixtures or Tenant's Changes which do not become part of the Building or
property of Landlord, provided however that Landlord's award is not thereby
reduced or otherwise adversely affected.
23.04 If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the term of this Lease,
Tenant shall be entitled, except as hereinafter set forth, to receive that
portion of the award for such taking which represents compensation for the use
and occupancy of the Demised Premises and, if so awarded, for the taking of
Tenant's Property and for moving expenses, and Landlord shall be entitled to
receive that portion which represents reimbursement for the cost of restoration
of the Demised Premises. This lease shall be and remain unaffected by such
taking and Tenant shall continue responsible
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for all of its obligations hereunder insofar as such obligations are not
affected by such taking and shall continue to pay in full the fixed rent and
additional rent when due. If the period of temporary use or occupancy shall
extend beyond the Expiration Date, that part of the award which represents
compensation for the use or occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period prior to the Expiration Date
and Landlord shall receive so much thereof as represents the period subsequent
to the Expiration Date. All moneys received by Tenant as, or as part of, an
award for temporary use and occupancy for a period beyond the date to which the
rents hereunder have been paid by Tenant shall be received, held and applied by
Tenant as a trust fund for payment of the rents falling due hereunder.
23.05 In the event of any taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of a taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, and to the extent any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
the remaining parts of the Building and the Demised Premises to substantially a
building standard condition to the extent that the same may be feasible and so
as to constitute a complete and tenantable Building and Demised Premises.
23.06 Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article, then (i) if such compliance is the
obligation of Tenant under this Lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this Lease, the
fixed rent
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hereunder shall be reduced and additional rents under Article 5 shall be
adjusted in the same manner as is provided in Section 23.02 according to the
reduction in rentable area of the Demised Premises resulting from such taking.
23.07 Any dispute which may arise between the parties with respect to
the meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 34.
ARTICLE 24
SURRENDER; HOLDOVER
24.01 On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition and repair, except for ordinary wear and tear together
with all Tenant's Changes which may have been made in, on, or to the Demised
Premises except for furniture, trade fixtures or equipment put in at the sole
expense of Tenant; provided, however, Tenant shall ascertain from Landlord at
least sixty (60) days prior to the expiration or earlier termination of this
Lease, whether Landlord desires to have the Demised Premises or any part thereof
restored to the original condition in which it was delivered as of the
Commencement Date of this Lease, reasonable wear and tear excepted. Tenant,
prior to the end of the Term, at its sole cost and expense, shall so restore the
Demised Premises, remove therefrom all of its property, including, but not
limited to, its furniture, fixtures and equipment, together with Tenant's
Changes as may be requested by Landlord and fix and repair any and all damage or
defacement to the Building and/or Land caused by the installation and/or removal
of Tenant's Changes, furniture, equipment or trade fixtures or any other
property. Any or all of Tenant's personal property or Tenant's Changes not so
removed, at Landlord's option, shall become the exclusive property of Landlord
or be disposed of by Landlord, at
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Tenant's cost and expense, without further notice or demand. If the Demised
Premises be not surrendered as and when aforesaid, Tenant shall indemnify
Landlord against any damages, loss or liability, resulting therefrom. Tenant's
obligation under this Article shall survive the expiration or earlier
termination of the Term.
24.02 (a) In the event this Lease is not renewed or extended or a new
lease is not entered into between the parties, and if Tenant shall then hold
over after the expiration of the term of this Lease, and if Landlord shall then
not proceed to remove Tenant from the Demised Premises in the manner permitted
by law (or shall not have given written notice to Tenant that Tenant must vacate
the Demised Premises) irrespective of whether or not Landlord accepts rent from
Tenant for a period beyond the Expiration Date, the parties hereby agree that
Tenant's occupancy of the Demised Premises after the expiration of the term
shall be under a month-to-month tenancy commencing on the first day after the
expiration of the term, which tenancy shall be upon all of the terms set forth
in this Lease except Tenant shall pay on the first day of each month of the
holdover period as fixed rent, an amount equal to one and one half (1 and "/z)
times one-twelfth of the fixed rent and additional rent payable by Tenant during
the last year of the term of this Lease (i.e., the year immediately prior to the
holdover period). Further, Landlord shall not be required to perform any work,
furnish any materials or make any repairs within the Demised Premises during the
holdover period. It is further stipulated and agreed that if Landlord shall, at
any time after the expiration of the original term or after the expiration of
any term created thereafter, proceed to remove Tenant from the Demised Premises
as a holdover, the fixed rent for the use and occupancy of the Demised Premises
during any holdover period shall be calculated in the same manner as set forth
above. In addition to the foregoing, Landlord shall be
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entitled to recover from Tenant any losses or damages arising after such
holdover continues for more than thirty (30) days.
(b) Notwithstanding anything to the contrary contained in
this Lease, the acceptance of any rent paid by Tenant pursuant to subsection
24.02(a) above shall not preclude Landlord from commencing and prosecuting a
holdover or summary eviction proceeding.
(c) All damages to Landlord by reason of holding over by
Tenant may be of the subject of a separate action and need not be asserted by
Landlord in any summary proceedings against Tenant.
ARTICLE 25
CONDITIONS OF LIMITATION
25.01 To the extent permitted by applicable law this Lease and the
term and estate hereby granted are subject to the limitation that whenever
Tenant shall make an assignment of all or substantially all of the property of
Tenant for the benefit of creditors, or shall file a voluntary petition under
any bankruptcy or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed against Tenant under the
reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a petition shall be filed by
Tenant under the arrangement provisions of the United States Bankruptcy Act or
under the provisions of any law of like import, or whenever a permanent receiver
of Tenant or of or for the property of Tenant shall be appointed, then,
Landlord, (a) at any time after receipt of notice of the occurrence of any such
event, or (b) if such event occurs without the acquiescence of Tenant, at any
time after the event continues unstayed for ninety (90) days, Landlord may give
Tenant a notice of intention to end the term of this Lease
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at the expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 27.
25.02 This lease and the term and estate hereby granted are subject to
the further limitation that:
(a) if there is a failure to pay when due any fixed rent,
additional rent or other payment payable by Tenant pursuant to any provision of
this Lease, and the payment in question is not paid in full on the due date,
then any such failure shall be deemed to be a default without the requirement of
any notice from Landlord pursuant to this subsection (a) subject to the terms of
the grace period for late payment of fixed rent or additional rent as granted in
Section 30.02; or
(b) if there is a failure to observe, perform or comply with
any term, covenant or condition contained in Article 6, Section 13.03 or Article
33 of this Lease on Tenant's part to observe, perform or comply with, whether by
action or inaction, and such default continues and is not cured in full by
Tenant within ten (10) days after Tenant is given a notice specifying such
default; or
(c) if there is a failure to observe, perform or comply with
any term, covenant or condition contained in Article 19 of this Lease on
Tenant's part to observe, perform or comply with, whether by action or inaction,
and such default continues and is not cured in full by Tenant within ten (10)
days after Tenant is given a notice specifying such default; or
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(d) if (i) Tenant fails to provide or keep in force the
insurance required by this Lease, at the times and for the durations specified
in this Lease, or (ii) an Insurance Cancellation Notice is given to Landlord or,
and Landlord has not received either duplicate originals of the policies of
insurance required by this Lease or binding certificates evidencing such
insurance, all in the form and substance required by this Lease, together with
evidence of payment for such policies, within five (5) days after notice is
given to Tenant of such failure or of the giving of the Insurance Cancellation
Notice, as the case may be;
(e) if any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm or corporation other than Tenant, except as expressly permitted by
Article 9; or
(f) if Tenant shall vacate or abandon the Demised Premises
(unless as a result of a casualty) and Tenant shall fail to provide reasonable
security measures to prevent unauthorized entry into the Demised Premises; or
(g) if there is a failure to observe, perform or comply with
any term, covenant or condition contained in this Lease on Tenant's part to
observe, perform or comply with (other than those terms, covenants and
conditions contained in the provisions of this Lease set forth in subsections
(a), (b), (c) and (d) above, and other than those events described in
subsections (e) and (f)), whether by action or inaction, and such default
continues and is not cured in full by Tenant within fifteen (15) days after
Tenant is given a notice specifying such default, or (ii) in the case of a
default which cannot with due diligence and using best efforts be cured within a
period of fifteen (15) days, where the continuance of such default for more than
fifteen (15) days will not (A) subject Landlord to the risk of civil or criminal
liability or default
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under, or termination of, any superior lease or default under, or foreclosure
of, any superior mortgage, (B) subject the Building or the Land, or any parts
thereof, to being condemned or vacated, or (C) subject the Building or the Land,
or any parts thereof, to any lien or encumbrance or subject the certificate of
occupancy for the Building to suspension or revocation or threatened suspension
or revocation, if Tenant shall not, (x) within fifteen (15) days after Tenant is
given a notice specifying such default, give Landlord notice of Tenant's
intention to duly institute all steps necessary to cure such default (which
notice shall include a reasonably detailed description of such steps), (y) duly
institute within said fifteen (15) day period, and thereafter diligently
prosecute to completion, using Tenant's best efforts, all steps necessary to
cure such default, or (z) complete such cure within such time after the date of
the giving of such notice to Tenant as should have been necessary to complete
such cure had Tenant so duly instituted such steps and thereafter diligently
prosecuted to completion such cure using its best efforts; or
(h) if there is a default under any term, covenant or
condition on Tenant's part to observe, perform or comply with under any other
lease or occupancy agreement in the Building to which Tenant is a party (either
directly or by assignment), and such default is not cured in full after the
giving of any required notice and after the expiration of any applicable cure
period,
then in any of said cases set forth in the foregoing subsections (a), (b), (c),
(d), (e), (f), (g), (h), and (i), Landlord may give to Tenant a notice of
intention to end the term of this Lease, and on the fifth (5th) day after the
date on which Landlord gives such notice to Tenant, this Lease and the term and
estate hereby granted, whether or not the term shall theretofore have commenced,
shall terminate with the same effect as if such fifth (5th) day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 27.
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ARTICLE 26
RE-ENTRY BY LANDLORD
26.01 If Tenant shall default in the payment of any installment of
fixed rent, or of any additional rent, on any date upon which the same ought to
be paid, and if such default shall continue for three (3) business days after
Landlord shall have given to Tenant a notice specifying such default, or if this
Lease shall expire as in Article 25 provided, Landlord or Landlord's agents and
employees may immediately or at any time thereafter re-enter the Demised
Premises, or any part thereof, in the name of the whole, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or by
force or otherwise, without being liable to indictment, prosecution or damages
therefor, and may repossess the same, and may remove any persons therefrom, to
the end that Landlord may have, hold and enjoy the Demised Premises again as and
of its first estate and interest therein. The word re-enter, as herein used, is
not restricted to its technical legal meaning. In the event of any termination
of this Lease under the provisions of Article 25 or if Landlord shall re-enter
the Demised Premises under the provisions of this Article or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceeding or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the
fixed rent and additional rent payable by Tenant to Landlord up to the time of
such termination of this Lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 27.
26.02 In the event of a breach or threatened breach by Tenant of any
of its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled
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at any time and Landlord may invoke any remedy allowed at law or in equity as if
specific remedies were not provided for herein.
26.03 If this Lease shall terminate under the provisions of Article
25, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article, or in the event of the termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to apply all moneys, if any, paid by Tenant to Landlord,
whether as advance rent, security or otherwise, as credit against any fixed rent
or additional rent due from Tenant at the time of such termination or re-entry
or, at Landlord's option, against any damages payable by Tenant under Article 27
or pursuant to law; any moneys in excess of the fixed rent, additional rent or
damages due from Tenant shall be refunded to Tenant within ninety (90) days
after the termination of the Lease.
ARTICLE 27
DAMAGES
27.01 If this Lease is terminated under the provisions of Article 25,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 26, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this
Lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, discounted to present value at
the rate of six (6%) percent per annum, of:
(i) the aggregate of the fixed rent and the
additional rent payable hereunder which would have been payable by
Tenant (conclusively presuming
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the additional rent to be the same as was payable for the year
immediately preceding such termination) for the period commencing with
such earlier termination of this Lease or the date of any such re-entry,
as the case may be, and ending with the Expiration Date, had this Lease
not so terminated or had Landlord not so re-entered the Demised
Premises; over
(ii) the aggregate rental value of the Demised
Premises for the same period; or
(b) sums equal to the fixed rent and the additional rent (as
above presumed) payable hereunder which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such reletting,
such net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this Lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this Subsection
to a credit in respect of any net rents from a reletting, except to the extent
that such net rents are actually
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received by Landlord. If the Demised Premises or any part thereof should be
relet in combination with other space, then proper apportionment on a square
foot basis (for equivalent space) shall be made of the rent received from such
reletting and of the expenses of reletting. If the Demised Premises or any part
thereof be relet by Landlord for the unexpired portion of the term of this
Lease, or any part thereof, before presentation of proof of such damages to any
court, commission or tribunal, the amount of rent reserved upon such reletting
shall, prima facie, be the fair and reasonable rental value for the Demised
Premises, or part thereof, so relet during the term of the reletting.
27.02 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provisions of Article 25, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this Lease or re-entry on the
Demised Premises for the default of Tenant under this Lease, 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, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 27.01.
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ARTICLE 28 WAIVER
28.01 Tenant, for Tenant, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege which they or any of them might have
under or by reason of any present or future law, to redeem the Demised Premises
or to have a continuance of this Lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as herein provided.
28.02 In the event that Tenant is in arrears in payment of fixed rent
or additional rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
it sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited.
28.03 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto. In the event Landlord commences any
summary proceeding for possession of the Demised Premises, Tenant covenants and
agrees that it will not interpose any counterclaim of any nature or description
in any such proceeding except a mandatory counterclaim or defense that would be
lost if not so interposed.
28.04 The provisions of Articles 17 and 18 shall be considered
expressed agreements governing the services to be furnished by Landlord, and
Tenant agrees that any laws
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and/or requirements of public authorities, now or hereafter in force, shall have
no application in connection with any enlargement of Landlord's obligations with
respect to such services unless Tenant agrees, in writing, to pay to Landlord,
as additional rent, Landlord's reasonable charges for any additional services
provided.
28.05 If, at any time during the term of this Lease, any requirement
of public authority shall have the effect of limiting, for any period of time,
the amount of the rents payable by Tenant, or receivable by Landlord, under this
Lease, and the maximum rents so permitted to be paid by Tenant, or received by
Landlord, hereunder shall be less than the rents herein reserved, then:
(a) throughout the period of limitation, Tenant shall remain
liable for the maximum amount of rents that is lawfully payable; and
(b) if and when the period of limitation ends, the
requirement of public authority imposing such limitation is repealed, or such
limitation is restrained or rendered unenforceable by any order or ruling of a
court of appropriate jurisdiction:
(i) to the extent that the same is not prohibited by
any requirement of public authority, Tenant shall pay to Landlord, on
demand, all amounts that would have been due from Tenant to Landlord
during the period of limitation, but that were not paid because of the
requirements of public authorities; and
(ii) thereafter, Tenant shall pay to Landlord all of
the rents reserved under this Lease, all of which shall be calculated as
if there had been no intervening period of limitation.
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ARTICLE 29
NO OTHER WAIVERS OR MODIFICATIONS
29.01 The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such executory agreement is in writing, refers expressly to
this Lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge or termination or effectuation of the
abandonment is sought.
29.02 The following specific provisions of this Section shall not be
deemed to limit the generality of any of the foregoing provisions of this
Article:
(a) no agreement to accept a surrender of all or any part of
the Demised Premises shall be valid unless in writing and signed by Landlord.
The delivery of keys to an employee of Landlord or of its agent shall not
operate as a termination of this Lease or a surrender of the Demised Premises.
If Tenant shall at any time request Landlord to sublet the Demised Premises for
Tenant's account, Landlord or its agent is authorized to receive said keys for
such purposes without releasing Tenant from any of its obligations under this
Lease, and Tenant hereby releases Landlord from any liability for loss or damage
to any of Tenant's property in connection with such subletting.
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(b) the receipt by Landlord of rent with knowledge of breach
of any obligation of this Lease shall not be deemed a waiver of such breach;
(c) no payment by Tenant or receipt by Landlord of a lesser
amount than the correct fixed rent or additional rent due hereunder shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any other
remedy in this Lease or at law provided.
ARTICLE 30 CURING TENANT'S DEFAULTS,
ADDITIONAL RENT
30.01 If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice, in a case of emergency, and in any other
case, only if such default continues after the expiration of (i) three (3)
business days from the date Landlord gives Tenant notice of intention so to do,
or (ii) the applicable grace period provided in Section 25.02 or elsewhere in
this Lease for cure of such default, whichever occurs later;
30.02 Tenant hereby acknowledges that late payment by Tenant to
Landlord of any fixed rent and/or additional rent hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage covering the Demised Premises and/or other
costs and charges. Accordingly, if any installment of fixed rent and/or
additional rent due from Tenant shall not be received by Landlord when such
amount shall be
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due, then, without any requirements for notice to Tenant, Tenant shall pay to
Landlord, in addition to such late payment, a one-time late charge equal to five
(5%) percent of such late payment. The parties hereby agree that such late
charge represents a fair and reasonable estimate of the costs which Landlord
will incur by reason of any late payment by Tenant. Acceptance of such late
charge by Landlord shall in no event (x) eliminate or diminish in any respect
Tenant's obligation to pay interest to Landlord on any such late payment
pursuant to Section 30.04 hereof; (y) constitute a waiver of Tenant's default
with respect to such late payment, nor (z) prevent Landlord from exercising any
of the other rights and remedies granted hereunder. Notwithstanding anything to
the contrary hereinabove contained, in no event whatsoever shall the interest
and/or late charges provided in this Section 30.02 or in Section 30.04 hereof,
singularly or cumulatively, exceed the lawful maximum interest rate then
applicable to Tenant. The forgoing to the contrary notwithstanding, Landlord
agrees that Tenant shall be granted a five (5) day grace period for the payment
of any installment of fixed rent and/or additional rent due from Tenant before
the aforementioned interest and late charges apply (this is not an extension of
the due date of Rent and Additional Rent) which grace period shall be granted up
to, but no more than, two (2) times in each calendar year on a non-cumulative
basis.
30.03 In the event Landlord receives a check from Tenant for the
payment of any item of fixed rent, additional rent and/or any other charge(s)
due under this Lease and such check is uncollectable by Landlord due to
insufficient funds or for any other reason, then Tenant shall pay to Landlord a
service charge in the amount of $100.00 for Landlord's expense in processing
such uncollectable check, as additional rent under this Lease. The provisions of
this Section shall in no event be deemed to limit Landlord's other rights or
remedies Landlord may
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have under the lease and Landlord's right to collect such charge shall be in
addition to all other rights of Landlord provided under this Lease.
30.04 If any installment of fixed rent and/or additional rent due from
Tenant shall not be received by Landlord on the date such amount shall be due,
then, subject to the terms of the grace period for late payment of fixed rent or
additional rent as granted in Section 30.02, without any requirements for notice
to Tenant, interest shall become due and owing to Landlord on such payment from
the date when it was due computed at the rate which is the greater of:
(a) twelve (12%) percent per annum; and
(b) two hundred (200) basis points over the then prime rate
of X.X. Xxxxxx Xxxxx, N.A. but in no event shall such interest rate be in excess
of the maximum legal rate of interest chargeable to Tenant in the State of New
Jersey.
30.05 Bills for any expenses incurred by Landlord in connection with
any such performance by it for the account of Tenant, and bills for all costs,
expenses and disbursements of every kind and nature whatsoever, including
reasonable counsel fees, involved in collecting or endeavoring to collect the
fixed rent or additional rent or any part thereof or enforcing or endeavoring to
enforce any rights against Tenant, under or in connection with this Lease, or
pursuant to law, including any such cost, expense and disbursement involved in
instituting and prosecuting summary proceedings, as well as bills for any
property, material, labor or services provided, furnished, or rendered, by
Landlord or at its instance to Tenant, may be sent by Landlord to Tenant
monthly, or immediately, at Landlord's option, and, shall be due and payable in
accordance with the terms of such bills.
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ARTICLE 31
BROKER
31.01 Landlord and Tenant covenant, warrant and represent that they
have not dealt with any broker or finder except Xxxxxxx & Wakefield of New
Jersey, Inc., (hereinafter collectively referred to as the "BROKER") concerning
the renting of the Demised Premises to Tenant. Landlord and Tenant agree to hold
the other harmless against any claims for a brokerage commission arising out of
any assertion by any broker or finder other than Xxxxxxx & Xxxxxxxxx of New
Jersey, Inc., with respect to the renting of the Demised Premises to Tenant.
Landlord agrees to pay any fee or commission owing to the Broker pursuant to
separate agreement made by Landlord and Broker.
ARTICLE 32
NOTICES
32.01 Except for rent bills and emergency repair notices (which may be
hand-delivered or sent via facsimile machine and shall be deemed given upon
receipt) any notice, statement, demand or other communication required or
permitted to be given, rendered or made by either party to the other, pursuant
to this Lease or pursuant to any applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made, if
sent by registered or certified mail, return receipt requested, addressed to the
other party at the address hereinabove set forth (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building), or sent via nationally recognized overnight
courier providing for receipted delivery and shall be deemed to have been given,
rendered or made (a) if so mailed, three (3) days after the day so mailed, and
(b) if sent via nationally recognized overnight courier, on the date of receipt
or rejection. Either party may, by notice as aforesaid,
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designate a different address or addresses for notices, statements, demands or
other communications intended for it.
ARTICLE 33
ESTOPPEL CERTIFICATE
33.01 Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice, to
execute and deliver to the other a statement certifying (i) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications) and whether any options granted to Tenant pursuant to the
provisions of this Lease have been exercised, (ii) certifying the dates to which
the fixed rent and additional rent have been paid and the amounts thereof, and
stating whether or not, to the best knowledge of the signer, the other party is
in default in performance of any of its obligations under this Lease, and, if
so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant hereto may be relied
upon by others with whom the party requesting such certificate may be dealing.
Additionally, Tenant's Statement shall contain such other information as shall
be required by the holder or proposed holder of any superior mortgage or the
lessor or proposed lessor under any superior lease.
ARTICLE 34
ARBITRATION
34.01 Either party may request arbitration of any matter in dispute
wherein arbitration is expressly provided in this Lease as the appropriate
remedy. The party requesting arbitration shall do so by giving notice to that
effect to the other party, and both parties shall promptly thereafter jointly
apply to the American Arbitration Association (or any organization
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successor thereto) in the City and County of the State of New Jersey chosen by
Landlord in its sole discretion for the appointment of a single arbitrator.
34.02 The arbitration shall be conducted in accordance with the then prevailing
rules of the American Arbitration Association (or any organization successor
thereto) in the State of New Jersey. In rendering such decision and award, the
arbitrator shall not add to, subtract from or otherwise modify the provisions of
this Lease.
34.03 If for any reason whatsoever a written decision and award of the
arbitrator shall not be rendered within ninety (90) days after the appointment
of such arbitrator, then at any time thereafter before such decision and award
shall have been rendered either party may apply to the Superior Court of the
State of New Jersey or to any other court having jurisdiction and exercising the
functions similar to those now exercised by such court, by action, proceeding or
otherwise (but not by a new arbitration proceeding) as may be proper to
determine the question in dispute consistently with the provisions of this
Lease.
34.04 All the expenses of the arbitration shall be borne by the
parties equally except that each party shall be responsible for the payment of
its own legal fees and disbursements and expert witness fees.
ARTICLE 35
MISCELLANEOUS
35.01 Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement which may be made between the parties concurrently
with the execution and delivery of this Lease and shall expressly refer to this
Lease. This lease and said other written agreement(s) made concurrently herewith
are
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hereinafter referred to as the "LEASE DOCUMENTS". It is understood and agreed
that all understandings and agreements heretofore had between the parties are
merged in the lease documents, which alone fully and completely express their
agreements and that the same are entered into after full investigation, neither
party relying upon any statement or representation not embodied in the lease
documents, made by the other.
35.02 If any of the provisions of this Lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law. 35.03 This lease shall be governed in all respects by the laws
of the State of New Jersey.
35.04 Submission of this Lease to Tenant if for examination and shall
not bind Landlord in any manner. No lease obligations or otherwise of Landlord
shall arise until this Lease is mutually executed and delivered; provided,
however, the execution and delivery of this Lease by Tenant to Landlord or
Landlord's agent shall constitute an irrevocable offer by Tenant to lease the
Demised Premises on the terms and conditions herein contained, which offer may
not be withdrawn or revoked for fifteen (15) days after such execution and
delivery by Tenant.
35.05 Landlord and Tenant acknowledge that each party and their
attorneys have had an opportunity to review and comment on this Lease and this
Lease will not be construed against Landlord merely because Landlord has
prepared the same.
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35.06 Tenant and the individual(s) executing this Lease on behalf of
Tenant each represent to Landlord that such individual(s) is authorized to do so
by the requisite action of the board of directors, the partners or the members
of Tenant, as the case may be, and agree, upon Landlord's request, to deliver to
Landlord a resolution or other similar document to that effect.
35.07 Landlord is entitled to claim all tax credits and depreciation
attributable to leasehold improvements in the Demised Premises. Promptly
following Landlord's demand, Landlord and Tenant will prepare a detailed list of
the leasehold improvements and fixtures and the respective costs for which
Landlord and/or Tenant has paid. Landlord shall be entitled to all credits and
depreciation for those items for which Landlord has paid by means of any Tenant
allowance or otherwise. Tenant will be entitled to any tax credits and
depreciation for all items for which Tenant has paid with funds not provided by
Landlord.
35.08 Landlord and Tenant are not and shall not be deemed to be, for
any purpose, , partners or joint venturers with each other.
35.09 Wherever in this Lease Landlord's consent or approval is
required, if Landlord shall refuse such consent or approval, Tenant in no event
shall be entitled to make, nor shall Tenant make, any claim, and Tenant hereby
waives any claim, for money damages (nor shall Tenant claim any money damages by
way of set-off, counterclaim or defense) based upon any claim or assertion by
Tenant that Landlord unreasonably withheld or unreasonably delayed its consent
or approval. Tenant's sole remedy shall be an action or proceeding to enforce
any such provision, for specific performance, injunction or declaratory
judgment.
35.10 It is agreed and understood that in the event Landlord receives
and accepts from Tenant a payment in an amount that is less than full payment of
Rent, Additional Rent or
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other charges due, Landlord's acceptance of such payment shall not be deemed as
acceptance of that sum as and for full payment.
ARTICLE 36
PARTIES BOUND
36.01 The obligations of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 9 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this Lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article.
36.02 Tenant shall look only to Landlord's estate and property in the
Building (or the proceeds thereof) and, where expressly so provided in this
Lease, to offset against the rents payable under this Lease, for the
satisfaction of Tenant's remedies for the collection of a judgment (or other
judicial process) requiring the payment of money by Landlord in the event of any
default by Landlord hereunder, and no other property or assets of such Landlord
or any partner, member, officer or director thereof, disclosed or undisclosed
shall be subject to levy, execution or other enforcement procedure for the
satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Demised Premises.
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ARTICLE 37
CERTAIN DEFINITIONS AND CONSTRUCTION
37.01 For the purposes of this Lease and all agreements supplemental
to this Lease, unless the context otherwise requires the definitions set forth
in Exhibit D annexed hereto shall be utilized.
37.02 The various terms which are bolded or underlined and defined in
other Articles of this Lease or are defined in Exhibits annexed hereto, shall
have the meanings specified in such other Articles and such Exhibits for all
purposes of this Lease and all agreements supplemental thereto, unless the
context shall otherwise require.
ARTICLE 38
ADJACENT EXCAVATION AND CONSTRUCTION; SHORING; VAULTS
38.01 If an excavation or other substructure work shall be made upon
land adjacent to the Demised Premises, or shall be authorized to be made, Tenant
shall afford to the person causing or authorized to cause such excavation,
license to enter upon the Demised Premises for the purpose of doing such work as
shall be necessary to preserve the wall of or the Building from injury or damage
and to support the same by proper foundations without any claim for damages or
indemnity against Landlord, or diminution or abatement or rent.
38.02 No vaults, vault space or area, whether or not enclosed or
covered, not within the property line of the Building is leased hereunder,
anything contained in or indicated on any sketch, blue print or plan or anything
contained elsewhere in this Lease to the contrary notwithstanding. Landlord
makes no representation as to the location of the property line of the Building.
All vaults and vault space and all such areas not within the property line of
the Building, which Tenant may be permitted to use and/or occupy, is to be used
and/or occupied under a revocable license, and if any such license be revoked,
or if the amount of such space or area be diminished or required by any federal,
state or municipal authority or public utility,
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Landlord shall not be subject to any liability nor shall Tenant be entitled to
any compensation or diminution or abatement of rent, nor shall such revocation,
diminution or requisition be deemed constructive or actual eviction. Any tax,
fee or charge of municipal authorities for such vault or area shall be paid by
Tenant.
ARTICLE 39
PARKING
39.01 During the term of this Lease, Tenant shall have the
non-exclusive right to use sixty-six (66) unassigned, nonexclusive parking
spaces in the area of the Land designated by Landlord for parking (hereinafter
referred to as the "PARKING AREA"). Such parking spaces may be used only by
principals, employees, invitees and agents of Tenant.
39.02 Tenant's right to use, and its right to permit its principals,
employees, invitees and agents to use, the Parking Area pursuant to this Lease
are subject to the following conditions: (a) Landlord has made no
representations or warranties with respect to the Parking Area except as
expressly set forth herein; (b) Landlord reserves the right to reasonably
rearrange the designation of any spaces and/or change access thereto and/or
alter the methods used to control parking and to establish such controls and
rules and regulations (such as parking stickers to be affixed to vehicles)
regarding parking that Landlord deems desirable (with Landlord having the right
to tow or otherwise remove vehicles improperly parked, blocking ingress or
egress lanes, or violating parking rules, at the expense of Tenant and/or owner
of the vehicle); and none of the foregoing shall entitle Tenant to any claim
against Landlord or to any abatement of rent (or any part thereof); (c) Landlord
has no obligation to provide a parking lot attendant and Landlord shall have no
liability on account of any theft, loss or damage to any vehicle or the contents
thereof, or injury (including death) to person(s), Tenant hereby agreeing to
bear the risk for same, and indemnify Landlord for claims and/or awards
(including reasonable attorney fees
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and expenses) made against Landlord in connection with the use of the Parking
Area by Tenant and/or its principals employees, invitees, agents and/or any
other party under any such parties' control; (d) Tenant, its principals,
employees, invitees and agents shall park their automobiles and other vehicles
only where and as designated from time to time by Landlord at the Parking Area;
(e) if and when so requested by Landlord, Tenant shall furnish Landlord with the
license numbers of any vehicles of Tenant, its principals, employees, invitees
and agents using the Parking Area.
39.03 Notwithstanding anything contained herein to the contrary,
Landlord may designate and assign, from time to time, parking spaces for Tenant
in the Parking Area, at a location determined by Landlord. In addition, Landlord
may, at its option, at any time during the term of this Lease, after reasonable
prior notice to Tenant, relocate any such assigned or designated parking spaces
reserved to Tenant to other parking spaces in the Parking Area, at a location
determined by Landlord.
ARTICLE 40
LANDLORD'S RELOCATION OPTION
40.01 Landlord shall have the option (hereinafter referred to as
"LANDLORD'S RELOCATION OPTION"), exercisable at any time during the term of this
Lease, upon prior written notice to Tenant, to designate "RELOCATED SPACE" (as
hereafter defined) as the Demised Premises, subject, however, to the following
terms and conditions:
(a) Landlord shall exercise Landlord's Relocation Option by
giving Tenant written notice thereof (hereinafter referred to as the "RELOCATION
NOTICE") which notice shall be delivered to Tenant no less than six (6) months
prior to the relocation;
(b) The Relocation Notice shall identify the space which
Tenant shall lease from Landlord in substitution of the Demised Premises
(hereinafter referred to as the "RELOCATED SPACE"), and shall set forth the
rentable square foot area thereof (hereinafter referred to as the
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"NEW AREA") determined in the same manner as the Demised Premises. The Relocated
Space shall be within the same Building and under no circumstances shall the
Relocated Space be in any other building.
40.02 The relocation shall be effected upon the following conditions:
(a) Landlord, at its sole cost and expense, shall prepare
the Relocated Space so as to contain substantially the same equipment, finishes
and installations as the Demised Premises as same exist on the date of the
exercise of the Relocation Option, (except where structural and field conditions
require a variation from the Demised Premises and except that if certain
materials or equipment utilized in the Demised Premises are then unavailable,
Landlord may substitute materials of equal quality, subject to Tenant's
approval, which approval shall not be unreasonably withheld or delayed). (Such
work is hereinafter referred to as the "RELOCATION WORK"). Prior to commencing
the Relocation Work, Landlord shall prepare, at its expense, plans and
specifications therefor and submit same to Tenant for Tenant's approval, which
approval shall not be unreasonably withheld or delayed. In the event that Tenant
fails to respond to any items submitted by Landlord where Tenant's approval is
required pursuant to this subsection (a) within fifteen (15) days after
submission thereof, Tenant's approval as to such items shall be deemed to have
been granted; and
(b) When the Relocation Work has been substantially
completed, Landlord shall, at its sole cost and expense, and upon not less than
fifteen (15) days prior written notice to Tenant, relocate Tenant into the
Relocated Space. The Relocation Work shall be deemed substantially complete
notwithstanding the fact that minor or insubstantial details of construction,
mechanical adjustment, or decoration remain to the performed, the noncompletion
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of which does not materially interfere with Tenant's use of the Relocation
Space. Landlord shall, promptly, upon notice from Tenant, complete such
uncompleted details. This relocation shall be accomplished in such a manner so
as to create the least practicable interference with Tenant's business
operation. Tenant agrees to cooperate with Landlord in the relocation so as to
enable Landlord to complete the relocation in a minimum amount of time and in a
manner that will minimize interference with Tenant's business operation and
shall sign all applications and documents reasonably required to effectuate such
relocation. All costs and expenses of this relocation shall be borne by
Landlord.
(c) Landlord agrees to reimburse Tenant for the loss of
manufacturing productivity which will result during the actual physical
relocation from the Demised Premises to the Relocated Space. Such reimbursement
shall be in the form of credits against Tenant's fixed rents which shall be
applied after the relocation is completed.
40.03 In the event of the exercise of Landlord's Relocation Option and
upon the written request of either Landlord or Tenant, the parties hereto shall
promptly execute and deliver an amendment of lease confirming (i) the exercise
of Landlord's Relocation Option, (ii) the designation of the Relocated Space as
the Demised Premises and the effective date thereof, and (iii) the Relocated
Space and (iv) the modification of this Lease to reflect the Relocated Space and
any other modification necessitated by such relocation, but no delay in, or
failure to, execute and deliver such amendment of lease shall affect in any
manner such exercise or designation.
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ARTICLE 41
TENANT'S OPTION TO EXTEND
41.01 Tenant may extend the Term of this Lease for two (2) periods of
sixty (60) months each (the "EXTENSION TERM(S)") beginning the day after the
Expiration Date, upon the same terms and conditions of the Lease, except that:
(a) the Term is modified to include the Extension Term;
(b) the Fixed Rent for the Extension Term shall be at 95% of
the then Fair Market Rent (determined exclusive of any and all allowances,
credits and other tenant concessions offered by Landlord to tenants leasing new
or additional space in the Building), as defined below; and
(c) the Option to Extend shall be deleted and shall not be
available to Tenant at the end of the second Extension Term.
41.02 To exercise this Option to Extend, Tenant must:
(a) not then be in default of the Lease following notice and
expiration of the applicable cure period;
(b) give Notice to Landlord that Tenant is exercising its
Option to Extend at least 270 days before the Expiration Date ("TENANT'S
NOTICE"). (c) execute an amendment to the Lease to be provided by Landlord
incorporating the terms of the Extension into the Lease and return it to
Landlord within 10 days of receipt.
41.03 The annual Fixed Rent during the Extension Term shall be at Fair
Market Rent. The term "Fair Market Rent" shall mean the annual Fixed Rent per
square foot of the Premises as of the date the option period commences, but in
no event less than the annual Fixed Rent payable by Tenant immediately prior to
the Expiration Date. More specifically, Fair Market
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Rent is defined as the fixed rent then being charged to lessees under any new
leases being made in the Building or in comparable buildings located in the
general vicinity of the Building (the "Area") for space as delivered to Tenant
at the Commencement of this Lease, not for space as improved by Tenant. In
addition, in determining the Fair Market Rent, no consideration shall be given
to the following facts: (1) that no vacancy or reletting expenses will be
incurred by Landlord (including, without limitation, advertising or promotional
expenses); (2) that Landlord shall not perform work at its expense for the
Tenant or pay Tenant any special work allowance; (3) that Landlord shall not
grant any rent concession to Tenant; and (4) that Tenant will not incur the cost
and expense of (a) having to locate other premises in which to move, (b)
designing and constructing improvements to same, (c) relocating to said new
premises, and (d) having its operations disrupted during the relocation.
41.04 If the parties cannot agree upon the Fair Market Rent within 30
days of Tenant's Notice, the Fair Market Rent shall be determined by two (2)
appraisers, one selected by Landlord and one selected by Tenant, whose costs and
expenses shall be borne by the party selecting the appraiser. Within fifteen
(15) days following said 30 day period described herein, Landlord and Tenant
shall each notify the other of its selection of an appraiser with M.A.I.
certification. Said appraisers shall work together to ascertain said Fair Market
Rent and shall each issue an opinion setting their determination. If the
retained appraisers cannot agree on the Fair Market Rent within seventy-five
(75) days of Tenant's Notice, they shall select within ninety (90) days of
Tenant's Notice, a third appraiser with M.A.I. certification, whose costs and
expenses shall be borne equally by the parties, and whose decision as to Fair
Market Rent, which must be made within one hundred twenty (120) days of Tenant's
Notice, shall be final.
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In the absence of an agreement by and between the appraisers as to the selection
of a third appraiser, then the third appraiser shall be appointed, within ninety
(90) days of Tenant's Notice, in a court proceeding by the Assignment Judge of
the Superior Court of New Jersey sitting in Bergen County, New Jersey, the costs
and expenses of which shall be borne equally by the parties. The third appraiser
appointed by the Assignment Judge as outlined herein shall render his decision
regarding Fair Market Rent within thirty (30) days of his appointment and the
third appraiser's decision shall be final and binding. All appraisers shall be
independent, third-party appraisers having at least seven (7) years' experience
in appraisals of comparable buildings in the Area and shall not have been or
thereafter be employed or retained by Landlord or any affiliate of Landlord or
Tenant or any affiliate of Tenant in connection with the Lease or any other
matter for a period of three (3) years and shall issue a written opinion setting
forth such appraiser's determination of the Fair Market Rent. In determining
Fair Market Rent, it is expressly understood that all appraisers shall be
instructed to follow and shall be bound by the directions outlined above in
making their appraisals. Within ten (10) days after the first two appraisers or
the third appraiser, as the case may be, shall have delivered their or his
opinion as to the Fair Market Rent, Landlord and Tenant shall execute an
amendment to the Lease incorporating the terms of the Fair Market Rent into the
Lease for the Extension Term.
41.05 The option herein granted to extend the Term shall be exercised
by Tenant by the delivery of written notice thereof to Landlord, not less than
twelve (12) months prior to the expiration of the Lease. In the event that the
Tenant shall fail to deliver said notice within such time, it shall be
conclusively deemed to mean that the Tenant has elected not to exercise
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said option, whereupon all options shall cease and terminate and be of no
further force and effect.
41.06 Nothing contained herein shall be construed to permit or grant
any option(s) or extension(s) of the Term beyond the option period(s) set forth
herein.
41.07 This option is personal to Vyteris, Inc., or its permitted
transfers and shall be void upon any transfer of this Lease. 41.08 Failure of
Tenant to observe or comply with the terms of this Option to Extend shall render
the option null and void. Landlord shall not be required to extend the Term of
this Lease if Tenant's financial condition at the time Tenant exercises its
option to extend is more than 10% below its Working Capital and Equity as
reflected in Tenant's audited financial statement as of December 2004.
ARTICLE 42
TENANT'S RIGHT OF FIRST CONSIDERATION
42.01 Tenant shall have right of first consideration which is
applicable to any space contiguous to demised premises subject to previous
rights which may have been granted. Under this right of first consideration, in
the event that such space becomes available or at such time as it becomes known
to Landlord that the space will imminently become available, Landlord agrees to
offer Tenant the opportunity to lease the entire space on terms which Landlord
intends to offer to the Public prior to its being offered to the general public.
This Right of Tenant shall be exercised by Notice in writing by Tenant to
Landlord within ten (10) days of Landlord's offer agreeing to the said terms for
the entire space, failing which this Right is automatically extinguished for the
space identified in Landlord's offer. This Right is personal to the Tenant named
herein and shall be void upon any transfer as per Article 9 of this Lease. In
the event that Tenant shall fail to exercise its option as contained in this
Article 42 and Landlord
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does not lease such Demised Premises to a third party within six (6) months
following the date of Landlord's notice, Landlord may re-offer the space to
tenant in accordance with this Article 42.
ARTICLE 43
SIGNAGE
43.01 Tenant shall be permitted to install appropriate signage on the
walls of entrances doors to all space under lease in addition to the Building
directory located along Xxxxxxx Drive. All such signage shall be at Tenant's
sole cost and expense, including all costs of installation, maintenance, repair
restoration and removal. All signage must have the advance written approval of
Landlord.
ARTICLE 44
ROOF RIGHTS
44.01 Tenant shall have its Proportionate Share of roof space for the
installation of microwave, satellite, antenna or supplemental HVAC mechanical
equipment. All installations on the roof must have the prior written approval of
Landlord.
ARTICLE 45
TENANT'S MOVE-IN PERIOD
45.01 Tenant will be allowed to move in during or after normal working
hours or on the weekends without any additional overtime costs by Landlord.
ARTICLE 46
EARLY OCCUPANCY
46.01 Tenant shall have the right to occupy the premises prior to the
Commencement Date under a separate Early Occupancy Agreement as set forth as
Exhibit F, attached hereto.
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ARTICLE 47
LANDLORD'S AGENT
47.01 By the MANAGEMENT AGREEMENT dated October 23, 2001, between
Landlord and Westminster Management, L.L.C., ("AGENT").,Agent is engaged by
Landlord as agent for and on behalf of Landlord to manage and operate the
Premises and is duly authorized to execute this Lease as Agent for Landlord with
the same force and effect as if executed by Landlord itself.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
TENANT: LANDLORD:
Vyteris, Inc. XX Xxxxxx Holdings, L.L.C.
By: Westminster Management, L.L.C., its Agent
By:___________________________ By:____________________________________
Name:_________________________ Name: Xxxxx X. Swill
Title:________________________ Title: Assistant Secretary
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A-1 EXHIBIT A DESCRIPTION ALL that certain plot, piece or parcel of land with
the buildings and improvements thereon erected, situate, lying and being in the
Borough of Fair Lawn, County of Bergen, and State of New Jersey being described
as follows:
BEGINNING at a point in the northerly line of Xxxxxxx Drive, said point being
the following two courses and distances from the northwest corner of the Oxford
University Press:
a. north 8 degrees 45 minutes 55 seconds west, 50.00 feet; and thence
b. north 81 degrees 14 minutes 05 seconds east, 268.44 feet to the true
point or place of beginning and from this point or place of beginning;
THENCE (1) north 6 degrees 16 minutes 25 seconds west, 789.67 feet to a point in
the southerly line of land of the Xxxxxx Scientific Co.;
THENCE (2) north 87 degrees 50 minutes 30 seconds east, 403.51 feet along the
same to a point;
THENCE (3) south 6 degrees 16 minutes 25 seconds east, 743.20 feet to a point in
the northerly line of Xxxxxxx Drive;
THENCE (4) south 81 degrees 14 minutes 05 seconds west, 402.85 feet along the
same to the point or place of BEGINNING.
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EXHIBIT B
FLOOR PLAN
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(FOLLOWS IMMEDIATELY ON NEXT PAGE)
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EXHIBIT C
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors and elevators
of the Building are limited to ingress to and egress from the tenants' premises
for the tenants and their employees, licensees and invitees, and no tenant shall
use, or permit the use of, the entrances, corridors, or elevators for any other
purpose. No tenant shall invite to the tenant's premises, or permit the visit
of, persons in such numbers or under such conditions as to interfere with the
use and enjoyment of any of the entrances, corridors, elevators and other
facilities of the Building by other tenants. Fire exits and stairways are for
emergency use only, and they shall not be used for any other purpose by the
tenants, their employees, licensees or invitees. No tenant shall encumber or
obstruct, or permit the encumbrance or obstruction of any of the sidewalks,
entrances, corridors, elevators, fire exits or stairways of the Building. The
Landlord reserves the right to control and operate the public portions of the
Building and the public facilities, as well as facilities furnished for the
common use of the tenants, in such manner as it deems best for the benefit of
the tenants generally.
2. The Landlord may refuse admission to the Building outside of
ordinary business hours to any person not known to the watchman in charge or not
having a pass issued by Landlord or the tenant whose premises are to be entered
or not otherwise properly identified, and may require all persons admitted to or
leaving the Building outside of ordinary business hours to register. Any person
whose presence in the Building at any time shall, in the judgment of Landlord,
be prejudicial to the safety, character, reputation and interests of the
Building or of its tenants may be denied access to the Building or may be
ejected therefrom. In case of invasion, riot, public excitement or other
commotion, Landlord may prevent all access to the Building during the
continuance of the same, by closing the doors or otherwise, for the safety of
the tenants and protection of property in the Building. The Landlord may require
any person leaving the Building with any package or other object to exhibit a
pass from the tenant from whose premises the package or object is being removed,
but the establishment and enforcement of such requirement shall not impose any
responsibility on Landlord for the protection of any tenant against the removal
of property from the premises of the tenant. The Landlord shall, in no way, be
liable to any tenant for damages or loss arising from the admission, exclusion
or ejection of any person to or from the tenant's premises or the Building under
the provisions of this rule. Canvassing, soliciting or peddling in the Building
is prohibited and every tenant shall co-operate to prevent the same.
3. No tenant shall obtain or accept for use in its premises ice,
drinking water, food, beverage, towel, barbering, boot blacking, floor
polishing, lighting maintenance, cleaning or other similar services from any
persons not authorized by Landlord in writing to furnish such services, provided
that the charges for such services by persons authorized by Landlord are not
excessive. Such services shall be furnished only at such hours, in such places
within the tenant's premises and under such reasonable regulations as may be
fixed by Landlord.
4. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
premises, or at any point inside any
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tenant's premises where the same might be visible outside of such premises,
except that the name of the tenant may be displayed on the entrance door of the
tenant's premises, and in the elevator lobbies of the floors which are occupied
entirely by any tenant, subject to the prior written approval of Landlord as to
the size, color and style of such display, which approval shall be at Landlord's
sole discretion.. The inscription of the name of the tenant on the door of the
tenant's premises shall be done by Landlord at the expense of the tenant.
Listing of the name of the tenant on the directory boards in the Building shall
be done by Landlord at its expense; any other listings shall be in the
discretion of Landlord. No tenant shall have any right to use any exterior sign
without Landlord's prior written consent, which consent shall be at Landlord's
sole discretion.
5. No awnings or other projections over or around the windows shall
be installed by any tenant, and only such window blinds as are supplied or
permitted by Landlord shall be used in a tenant's premises. Linoleum, tile or
other floor covering shall be laid in a tenant's premises only in a manner
approved by Landlord.
6. The Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon a tenant's premises. If, in the
judgment of Landlord, it is necessary to distribute the concentrated weight of
any heavy object, the work involved in such distribution shall be done at the
expense of Tenant and in such manner as Landlord shall determine. The moving of
safes and other heavy objects shall take place only outside of ordinary business
hours upon previous notice to Landlord, and the persons employed to move the
same in and out of the Building shall be reasonably acceptable to Landlord and,
if so required by law, shall hold a Master Rigger's license. Freight, furniture,
business equipment, merchandise and bulky matter of any description shall be
delivered to and removed from the premises only in the freight elevators and
through the service entrances and corridors, and only during hours and in a
manner approved by Landlord. Arrangements will be made by Landlord with any
tenant for moving large quantities of furniture and equipment into or out of the
building.
7. No machines or mechanical equipment of any kind, other than
typewriters and other ordinary portable business machines, may be installed or
operated in any tenant's premises without Landlord's prior written consent, and
in no case (even where the same are of a type so excepted or as so consented to
by Landlord) shall any machines or mechanical equipment be so placed or operated
as to disturb other tenants but machines and mechanical equipment which may be
permitted to be installed and used in a tenant's premises shall be so equipped,
installed and maintained by such tenant as to prevent any disturbing noise,
vibration or electrical or other interference from being transmitted from such
premises to any other area of the Building.
8. No noise, including the playing of any musical instruments,
radio or television, which, in the judgment of Landlord, might disturb other
tenants in the Building, shall be made or permitted by any tenant, and no
cooking shall be done in the tenant's premises, except as expressly approved by
Landlord. Nothing shall be done or permitted in any tenant's premises, and
nothing shall be brought into or kept in any tenant's premises, which would
impair or interfere with any of the Building services or the proper and economic
heating, cleaning or
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other servicing of the Building or the premises, or the use or enjoyment by any
other tenant of any other premises, nor shall there be installed by any tenant
any ventilating, air conditioning, electrical or other equipment of any kind
which, in the judgment of Landlord, might cause any such impairment or
interference. No dangerous, inflammable, combustible or explosive object or
material shall be brought into the Building by any tenant or with the permission
of any tenant.
9. No acids, vapors, paper towels or other materials shall be
discharged or permitted to be discharged into the waste lines, vents or flues of
the Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for any
purpose other than the purposes for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other foreign substances shall be
deposited therein.
10. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows in any tenant's premises and no lock on any door
therein shall be changed or altered in any respect. Additional keys for a
tenant's premises and toilet rooms shall be procured only from Landlord, which
may make a reasonable charge therefor. Upon the termination of a tenant's lease,
all keys of the tenant's premises and toilet rooms shall be delivered to
Landlord.
11. All entrance doors in each tenant's premises shall be left
locked and all windows shall be left closed by the tenant when the tenant's
premises are not in use. Entrance doors shall not be left open at any time.
12. Hand trucks not equipped with rubber tires and side guards shall
not be used within the Building.
13. All windows in each tenant's premises shall be kept closed and
all blinds therein, if any, above the ground floor shall be lowered when and as
reasonably required because of the position of the sun, during the operation of
the Building air-conditioning system to cool or ventilate the tenant's premises.
14. The Landlord reserves the right to rescind, alter or waive any
rule or regulation at any time prescribed for the Building when, in its
judgment, it deems it necessary, desirable or proper for its best interest and
for the best interests of the tenants, and no alteration or waiver of any rule
or regulation in favor of one tenant shall operate as an alteration or waiver in
favor of any other tenant. The Landlord shall not be responsible to any tenant
for the non-observance or violation by any other tenant of any of the rules and
regulations at any time prescribed for the Building.
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EXHIBIT D
DEFINITIONS
(a) The term mortgage shall include an indenture of mortgage and
deed of trust to a trustee to secure an issue of bonds, and the term mortgagee
shall include such a trustee.
(b) The terms include, including and such as shall each be construed
as if followed by the phrase "without being limited to".
(c) The term obligations of this Lease, and words of like import,
shall mean the covenants to pay rent and additional rent under this Lease and
all of the other covenants and conditions contained in this Lease. Any provision
in this Lease that one party or the other or both shall do or not do or shall
cause or permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(d) The term Tenant's obligations hereunder, and words of like
import, and the term Landlord's obligations hereunder, and words of like import,
shall mean the obligations of this Lease which are to be performed or observed
by Tenant, or by Landlord, as the case may be. Reference to performance of
either party's obligations under this Lease shall be construed as "performance
and observance".
(e) Reference to Tenant being or not being in default hereunder, or
words of like import, shall mean that Tenant is in default in the performance of
one or more of Tenant's obligations hereunder, or that Tenant is not in default
in the performance of any of Tenant's obligations hereunder, or that a condition
of the character described in Section 25.01 has occurred and continues or has
not occurred or does not continue, as the case may be.
(f) References to Landlord as having no liability to Tenant or being
without liability to Tenant, shall mean that Tenant is not entitled to terminate
this Lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated for loss or injury
suffered or to enforce any other kind of liability whatsoever against Landlord
under or with respect to this Lease or with respect to Tenant's use or occupancy
of the Demised Premises.
(g) The term laws and/or requirements of public authorities and
words of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county and borough governments and rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies or offices thereof, or of any other governmental, public or
quasi-public authorities, having jurisdiction in the premises, and/or the
direction of any public officer pursuant to law.
(h) The term requirements of insurance bodies and words of like
import shall mean rules, regulations, orders and other requirements of the New
Jersey Board of Fire Underwriters and/or the New Jersey Fire Insurance Rating
Organization and/or any other similar
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body performing the same or similar functions and having jurisdiction or
cognizance of the Building and/or the Demised Premises.
(i) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(j) Reference to termination of this Lease includes expiration or
earlier termination of the term of this Lease or cancellation of this Lease
pursuant to any of the provisions of this Lease or to law. Upon a termination of
this Lease, the term and estate granted by this Lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this Lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this Lease, or (ii) except for such obligation as by its nature or under the
circumstances can only be, or by the provisions of this Lease, may be, performed
after such termination, and, in any event, unless expressly otherwise provided
in this Lease, any liability for a payment which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this Lease.
(k) The term in full force and effect when herein used in reference
to this Lease as a condition to the existence or exercise of a right on the part
of Tenant shall be construed in each instance as including the further condition
that at the time in question no default on the part of Tenant exists, and no
event has occurred which has continued to exist for such period of time (after
the notice, if any, required by this Lease), as would entitle Landlord to
terminate this Lease or to dispossess Tenant.
(1) The term Tenant shall mean Tenant herein named or any assignee
or other successor in interest (immediate or remote) of Tenant herein named,
while such Tenant or such assignee or other successor in interest, as the case
may be, is in possession of the Demised Premises as owner of Tenant's estate and
interest granted by this Lease and also, if Tenant is not an individual or a
corporation, all of the persons, firms and corporations then comprising Tenant.
(m) Words and phrases used in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular
gender shall be deemed to include any other gender.
(n) The rule of ejusdem generic shall not be applicable to limit a
general statement following or referable to an enumeration of specific matters
to matters similar to the matters specifically mentioned.
(o) All references in this Lease to numbered Articles, numbered
Sections and lettered Exhibits are references to Articles and Sections of this
Lease, and Exhibits annexed to (and thereby made part of) this Lease, as the
case may be, unless expressly otherwise designated in the context.
(p) The term control shall mean ownership of more than fifty (50%)
percent of all the voting stock of a corporation or more than fifty (50%)
percent of all the legal and equitable interest in any other entity.
D-2
(q) The term Base Rate shall mean the prime rate of X.X. Xxxxxx
Xxxxx, N.A. (or Citibank, N.A. if X.X. Xxxxxx Chase, N.A. shall not then have an
established prime rate; or the prime rate of any major banking institution doing
business in the City of New York, as selected by Landlord, if none of the
aforementioned banks shall be in existence or have an established prime rate) at
the time of in question.
D-3
EXHIBIT E
INTENTIONALLY DELETED
E-1
EXHIBIT F
EARLY ENTRY LICENSE AGREEMENT
THIS EARLY ENTRY LICENSE AGREEMENT (the "Agreement") made this _____ day
of _______________, 2004, by and between XX XXXXXX HOLDINGS, X.XX., a New Jersey
limited liability company, having an address at 00 Xxxxxxxx Xxxxxxxx, Xxxxxxx
Xxxx, XX 00000 (the "Licensor"), and VYTERIS, INC. (the "Licensee").
WITNESSTH:
WHEREAS, Licensor is the owner of a certain office building located at
00-00 Xxxxxxx Xxxxx, Xxxx Xxxx, Xxx Xxxxxx (the "Property"); and
WHEREAS, Licensor and Licensee have or are about to enter into a lease
("Lease") certain space, containing approximately 26,255 rentable square feet,
located on the first floor of the Property (the "Premises"); and
WHEREAS, Licensee desires to enter into the Premises prior to the
Commencement Date (as defined in the Lease) for the purposes of (i) installing
certain data and telecommunications wiring and equipment; and (ii) moving in and
storing certain office furniture and equipment; and
WHEREAS, the Licensor is willing to grant Licensee such right upon the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth in this Amendment, and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Incorporation of Recitals and Definitions. The recitals set
forth above are hereby incorporated into this Agreement as if set forth herein
at length. All capitalized words and phrases not defined in this Agreement shall
have the meanings ascribed to them in the Lease.
2. Grant of License. Subject to the terms and conditions of this
Agreement, Licensor hereby grants Licensee a non-exclusive license for the term
of this Agreement to use and occupy the Premises for the purposes set forth in
this Agreement. This is a license coupled with an interest and may not be
terminated during the Term, except as set forth in paragraph 8.
3. Term. The term of this Agreement shall commence upon execution
by Licensor and terminate on the Commencement Date of the Lease (as defined in
the Lease.)
4. Use; Compliance with Law.
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(a) Licensee shall use the Premises solely for purposes of
installing data and communications wiring and equipment.
(b) Licensee shall not place in the Premises (i) anything which is
hazardous, toxic, odorous, inflammable, explosive or dangerous, or (ii) anything
belonging to anyone other than Licensee.
(c) Licensee shall obtain all permits necessary for and comply with
all applicable laws in connection with the use and occupancy of the Premises.
5. Alterations. Licensee shall not make any alterations or
improvements to Premises without the prior written consent of Licensor, and then
only in accordance with plans and specifications previously approved by Licensor
and subject to such conditions as Licensor may require.
6. Insurance; Release.
(a) Licensee shall maintain comprehensive general liability
insurance against claims for bodily injury (including death) and/or property
damage, having a limit of not less than $3,000,000 per occurrence, combined
single limit. Such policy of insurance shall name Licensor and such other
parties as Licensor may request as additional insureds.
(b) Licensee shall insure all property placed in the Premises
against loss or damage by fire or other casualty and by theft or vandalism. Such
insurance shall be in an amount equal to the full replacement cost of the
property stored in the Premises. All such policies shall contain a waiver of
subrogation in favor of Licensor and such other parties as Licensor may request
and shall require the insurer to give Licensor thirty (30) days notice prior to
cancellation.
(c) Licensee shall deliver copies of all required insurance policies
or evidence of such policies to Licensor simultaneously with the execution of
this Agreement and shall deliver evidence of the renewal of such policies at
least thirty (30) days prior to their expiration.
(d) Licensee hereby releases Licensor, its partners, agents and
employees, from all liability by reason of any damage to or loss of property in
the Premises whether such damage or loss shall be caused by or result from the
negligence of Licensor, its partners, agents or employees, or from any cause
whatsoever.
7. Licensor's Right of Access. Licensor shall have access to the
Premises at all times for such purposes as Licensor may deem necessary.
8. Default and Licensor's Remedies. The failure of Licensee to
perform any of its covenants contained in this Agreement and the continuation of
such failure for two (2) days after notice from Licensor to Licensee shall
constitute an event of default ("Event of Default") hereunder, (except in the
case where Licensee has in good faith begun to cure) upon the occurrence of
which, Licensor shall have, in addition to all remedies available at law or
equity, the right to terminate this Agreement and to remove Licensee's property
from the Premises. The notice provided for herein is in lieu of any other
notices required pursuant to the terms of any statute or ordinance, and Licensee
waives all notices except those specifically required herein.
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9. Surrender. Licensee agrees to surrender the Premises to Licensor
at the end of the term of this Agreement in the same condition as it is on the
date of this Agreement, except for the installation of data and communications
wiring and equipment.
10. Severability. If any part of this Agreement is declared invalid
for any reason, the validity of the remainder of this Agreement shall not be
affected, and such remaining portion shall continue in full force and effect as
if this Agreement had been executed with the invalid portion deleted.
11. Waiver. No waiver by Licensor of any breach or default in the
performance of any covenant, condition or term contained herein shall constitute
a waiver of any subsequent breach or default in the performance of the same or
any other covenant or term hereof.
12. Recovery of Attorneys' Fees and Costs. If any action is
instituted or other proceeding is taken to enforce any term, covenant or
condition contained in this Agreement or to recover possession of the Premises
by reason of the occurrence of an Event of Default, Licensee agrees to pay to
Licensor its reasonable attorneys' fees, costs and expenses in connection
therewith.
13. No Assignment. Licensee shall not have the right to assign this
Agreement or to give any other person or entity any right to use the Premises,
unless such assignment is together with an assignment of the Lease consented to
by Landlord to the extent required.
14. New Jersey Law to Apply. This Agreement shall be construed in
accordance with the laws of the State of New Jersey.
15. Limitation of Liability. The liability of Licensor under this
License and any successive owner of the Property, and all of its officers,
employees, shareholders and joint venturers and partners, if any, whether
general or limited, shall be limited to Licensor's estate or other title or
interest in the Property.
16. Exclusion of all Warranties. LICENSOR DISCLAIMS ANY EXPRESS OR
IMPLIED WARRANTIES REGARDING THE CONDITION OF THE PREMISES.
17. Indemnification of Licensor. Licensee hereby agrees to
indemnify, defend and hold Licensor, its partners, agents and employees,
harmless from and against any and all claims, suits, actions, liabilities,
losses, damages and expenses (including without limitation, attorneys' fees and
court costs) arising from or in connection with (a) the negligence or willful
misconduct of Licensee, (b) the use or occupancy of the Premises by Licensee,
its agents, employees, contractors, invitees and licensees, or the exercise by
Licensee of any of its rights under this Agreement, or (c) failure by Licensee
to perform any of its obligations under this Agreement.
18. Notices. All notices given in connection with this Agreement
shall be in writing and shall be addressed as set forth in the Lease.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
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TABLE OF CONTENTS
ARTICLE 1 Demise, Demised Premises, Term, Rents...............................1
ARTICLE 2 Use 4
ARTICLE 3 Failure To Give Possession..........................................6
ARTICLE 4 Preparation of the Demised Premises.................................7
ARTICLE 5 Adjustments Of Rent................................................15
ARTICLE 6 Security Deposit...................................................29
ARTICLE 7 Subordination, Notice To Lessors And Mortgagees....................34
ARTICLE 8 Quiet Enjoyment....................................................38
ARTICLE 9 Assignment And Subletting..........................................38
ARTICLE 10 Compliance With Laws And Requirements Of Public Authorities.......51
ARTICLE 11 Insurance.........................................................55
ARTICLE 12 Rules And Regulations.............................................63
ARTICLE 13 Tenant's Changes..................................................64
ARTICLE 14 Tenant's Property.................................................70
ARTICLE 15 Repairs And Maintenance...........................................72
ARTICLE 16 Electricity.......................................................74
ARTICLE 17 Heat, Ventilating And Air-Conditioning............................77
ARTICLE 18 Landlord's Other Services.........................................78
ARTICLE 19 Access, Changes In Building Facilities, Name......................79
ARTICLE 20 Notice Of Accidents...............................................83
ARTICLE 21 Non-Liability And Indemnification.................................83
ARTICLE 22 Destruction Or Damage.............................................85
ARTICLE 23 Eminent Domain....................................................88
ARTICLE 24 Surrender; Holdover...............................................91
ARTICLE 25 Conditions Of Limitation..........................................93
ARTICLE 26 Re-Entry By Landlord..............................................97
ARTICLE 27 Damages...........................................................98
ARTICLE 28 Waiver...........................................................101
ARTICLE 29 No Other Waivers Or Modifications................................103
ARTICLE 30 Curing Tenant's Defaults, Additional Rent........................104
ARTICLE 31 Broker...........................................................107
ARTICLE 32 Notices..........................................................107
ARTICLE 33 Estoppel Certificate.............................................108
ARTICLE 34 Arbitration......................................................108
ARTICLE 35 Miscellaneous....................................................109
ARTICLE 36 Parties Bound....................................................112
ARTICLE 37 Certain Definitions And Construction.............................113
ARTICLE 38 Adjacent Excavation And Construction; Shoring; Vaults............113
ARTICLE 39 Parking..........................................................114
ARTICLE 40 Landlord's Relocation Option.....................................115
ARTICLE 41 Tenant's Option to Extend........................................118
ARTICLE 42 Tenant's Right of First Consideration............................121
ARTICLE 43 Signage..........................................................122
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ARTICLE 44 Roof Rights......................................................122
ARTICLE 45 Tenant's Move-In Period..........................................122
ARTICLE 46 Early Occupancy..................................................122
ARTICLE 47 Landlord's Agent.................................................123
E-2
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EXHIBIT H
TENANT'S WORK PLANS
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ARCHITECT: Xxxxxx Xxxxxxxxxx & Xxxxxx Architecture, P.C.
DATE: June 25, 2004
Architectural
T-001 Title Sheet
A-001 Code Analysis, Abbreviations & Symbols
A-051 Removal Plan
A-101 Construction Plan
A-104 Part Roof Plan
A-281 Roof And Miscellaneous Details
A-301 Partitions, Doors, Finish Schedule & Details
A-601 Reflected Ceiling Plan
A-801 Material and Personnel Flow Diagram
A-802 Equipment Layout Plan
Structural
S-101 General Notes, Typical Details, Partial Existing
Roof Plan and Section
Fire Protection
F-100 Fire Protection Lead Sheet
F-101 Partial First Floor Fire Protection Plan
F-102 Partial First Floor Above Ceiling Level Fire
Protection Plan
Plumbing
P-100 Plumbing Lead Sheet
P-101 Partial First Floor Plumbing Plan
P-102 Partial Roof Plumbing Plan
P-103 Plumbing Riser Diagram
Mechanical
H-100 HVAC Lead Sheet
H-101 HVAC Area Classification / Pressurization Zoning
And Design Criteria Diagram
H-102 HVAC Air Flow and Control Diagram - 1
H-103 HVAC Air Flow and Control Diagram - 2
H-104 HVAC First Floor Ductwork Part Plan - 1
H-105 HVAC First Floor Ductwork Part Plan - 0
X-000 XXXX Xxxx Xxxx Xxxx
X-000 XXXX Detail Sheet
H-108 HVAC Equipment Schedule Sheet
Electrical
E-100 General Notes and Electrical Legend
E-101 Partial First Floor Demolition Plan
E-102 Partial First Floor Lighting Plan
E-103 Partial First Floor Power Plan
E-104 Partial Roof Lighting / Power Plan and Panel Schedule
E-105 One Line Diagram, Partial Fire Alarm and Riser Diagram
Lighting Fixture Schedule and Details
