LEASE from: PRINCETON OVERLOOK REALTY L.L.C. Lessor
from:
PRINCETON
OVERLOOK REALTY L.L.C.
Lessor
t
to:
SCOPUS
NETWORK TECHNOLOGIES, INC.
Lessee
Building:
000
Xxxxxxxx Xxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxxxx
TABLE
OF CONTENTS
1.
|
DESCRIPTION:
|
3
|
2.
|
TERM:
|
3
|
3.
|
BASIC
RENT:
|
3
|
4.
|
USE
AND OCCUPANCY:
|
3
|
5.
|
CARE
AND REPAIR OF PREMISES/ENVIRONMENTAL:
|
3
|
6.
|
ALTERATIONS,
ADDITIONS OR IMPROVEMENTS:
|
5
|
7.
|
ACTIVITIES
INCREASING FIRE INSURANCE RATES:
|
6
|
8.
|
ASSIGNMENT
AND SUBLEASE:
|
6
|
9.
|
COMPLIANCE
WITH RULES AND REGULATIONS:
|
9
|
10.
|
DAMAGES
TO BUILDING:
|
9
|
11.
|
EMINENT
DOMAIN:
|
10
|
12.
|
INSOLVENCY
OF LESSEE:
|
10
|
13.
|
LESSOR’S
REMEDIES ON DEFAULT:
|
10
|
14.
|
DEFICIENCY:
|
10
|
15.
|
SUBORDINATION
OF LEASE:
|
11
|
16.
|
SECURITY
DEPOSIT:
|
11
|
17.
|
RIGHT
TO CURE LESSEE’S BREACH:
|
12
|
18.
|
MECHANIC’S
LIENS:
|
12
|
19.
|
RIGHT
TO INSPECT AND REPAIR:
|
12
|
20.
|
SERVICES
TO BE PROVIDED BY LESSOR/LESSOR’S EXCULPATION:
|
12
|
21.
|
INTERRUPTION
OF SERVICES OR USE:
|
13
|
22.
|
BUILDING
STANDARD OFFICE ELECTRICAL SERVICE:
|
13
|
23.
|
ADDITIONAL
RENT:
|
14
|
24.
|
LESSEE’S
ESTOPPEL:
|
15
|
25.
|
HOLDOVER
TENANCY:
|
18
|
26.
|
RIGHT
TO SHOW PREMISES:
|
18
|
27.
|
LESSOR’S
WORK - LESSEE’S DRAWINGS:
|
18
|
28.
|
WAIVER
OF TRIAL BY JURY:
|
19
|
29.
|
LATE
CHARGE:
|
19
|
30.
|
LESSEE’S
INSURANCE:
|
19
|
i
31.
|
NO
OTHER REPRESENTATIONS:
|
21
|
32.
|
QUIET
ENJOYMENT:
|
21
|
33.
|
INDEMNITY:
|
21
|
34.
|
ARTICLE
HEADINGS:
|
21
|
35.
|
APPLICABILITY
TO HEIRS AND ASSIGNS:
|
21
|
36.
|
OUTSIDE
PARKING SPACES:
|
22
|
37.
|
LESSOR’S
LIABILITY FOR LOSS OF PROPERTY:
|
22
|
38.
|
PARTIAL
INVALIDITY:
|
22
|
39.
|
LESSEE’S
BROKER:
|
22
|
40.
|
PERSONAL
LIABILITY:
|
22
|
41.
|
NO
OPTION:
|
23
|
42.
|
DEFINITIONS:
|
23
|
43.
|
LEASE
COMMENCEMENT:
|
24
|
44.
|
NOTICES:
|
24
|
45.
|
ACCORD
AND SATISFACTION:
|
24
|
46.
|
EFFECT
OF WAIVERS:
|
24
|
47.
|
LEASE
CONDITION:
|
24
|
48.
|
MORTGAGEE’S
NOTICE AND OPPORTUNITY TO CURE:
|
25
|
49.
|
LESSOR’S
RESERVED RIGHT:
|
25
|
50.
|
CORPORATE
AUTHORITY:
|
25
|
51.
|
AFTER-HOURS
USE:
|
25
|
52.
|
LESSEE’S
EXPANSION/RELOCATION:
|
26
|
53.
|
BUILDING
PERMIT:
|
26
|
ii
LEASE,
is
made the 15th
day
of
November,
2002
between PRINCETON OVERLOOK REALTY L.L.C. (herein referred to as “Lessor”) whose
address is c/o Xxxx-Xxxx Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000 and SCOPUS NETWORK TECHNOLOGIES, INC. (herein referred to as
“Lessee”). whose address is 00000 Xxxxx Xxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx.
PREAMBLE
BASIC
LEASE PROVISIONS AND DEFINITIONS
In
addition to other terms elsewhere defined in this Lease, the following terms
whenever used this Lease shall have only the meanings set forth in this section,
unless such meanings are expressly modified, limited or expanded elsewhere
herein.
1.
|
ADDITIONAL
RENT
shall mean all sums in addition to Fixed Basic Rent payable by Lessee
to
Lessor pursuant to the provisions of the
Lease.
|
2.
|
BASE
PERIOD COSTS
shall mean the following:
|
A.
|
Base
Operating Costs: Those Operating Costs incurred during Calendar Year
2003.
|
B.
|
Base
Real Estate Taxes: Those Real Estate Taxes incurred during Calendar
Year
2003.
|
C.
|
Insurance
Cost Expense Stop: $22,440.00
|
D.
|
Base
Utility and Energy Costs: Those Utility and Energy costs incurred
during
Calendar Year 2003.
|
3.
|
BUILDING
shall mean 000 Xxxxxxxx Xxxxxx, Xxxx Xxxxxxx, Xxx
Xxxxxx.
|
4.
|
BUILDING
HOLIDAYS
shall be those shown on Exhibit F.
|
5.
|
BUILDING
HOURS
shall be Monday through Friday, 8:00 a.m. to 6:00 p.m., but excluding
those holidays as set forth on Exhibit F attached hereto and made
a part
hereof, except that Common Facilities, lighting in the Building and
Office
Building Area shall be maintained for such additional hours as, in
Lessor’s sole judgement, is necessary or desirable to insure proper
operating of the Building and Office Building
Area.
|
6.
|
COMMENCEMENT
DATE
is
upon substantial completion of tenant improvements and shall for
purposes
hereof be subject to Articles 27 and 43
hereof.
|
7.
|
DEMISED
PREMISES OR PREMISES
shall be deemed to be 3,378 gross rentable square feet on the third
(3rd)
floor as shown on Exhibit A hereto, which includes an allocable share
of
the Common Facilities as defined in Article
42(b).
|
8.
|
EXHIBITSshall
be the following, attached to this Lease and incorporated
herein and made a part hereof.
|
Exhibit
A
|
Location
of Premises
|
Exhibit
X-0
|
Xxxxxx
Xxxxxxxx Xxxx
|
Xxxxxxx
X
|
Rules
and Regulations
|
Exhibit
C
|
Lessor’s
Work
|
Exhibit
C-1
|
Air
Conditioning & Heating Design Standards
|
Exhibit
D
|
Cleaning
Services
|
Exhibit
E
|
Building
Holidays
|
Exhibit
F
|
Tenant
Estoppel Certificate
|
Exhibit
G
|
Commencement
Date Agreement
|
1
9.
|
EXPIRATION
DATE
shall be the last day of the month in which the day before the three
(3)
year anniversary of the Commencement Date
occurs.
|
10.
|
FIXED
BASIC RENT
shall mean: TWO HUNDRED EIGHTY THOUSAND THREE HUNDRED SEVENTY FOUR
AND
00/100 DOLLARS ($280,374.00) for the Term payable as
follows:
|
Year
|
Yearly
Rent
|
Monthly
Installments
|
1
|
$92,050.50
|
$7,670.88
|
2
|
$93,739.50
|
$7,811.63
|
3
|
$94,584.00
|
$7,882.00
|
11.
|
LESSEE’S
BROKER
shall mean none.
|
12.
|
LESSEE’S
PERCENTAGE
shall be 2.26% subject to adjustment as provided for in Article
42(d).
|
13.
|
OFFICE
BUILDING AREA
is
as set forth on Exhibit A-1.
|
14.
|
PARKING
SPACES
shall mean a total of 12 unassigned
spaces.
|
15.
|
PERMITTED
USE
shall be general office use and for no other
purpose.
|
16.
|
SECURITY
DEPOSIT
shall be FIFTEEN THOUSAND FIVE HUNDRED SEVENTY-SIX AND 33/100 DOLLARS
($15,576.33)
|
17.
|
TERM
shall mean three (3) years from the Commencement Date, plus the number
of
days, if any, to have the Lease expire on the last day of a calendar
month, unless extended pursuant to any option contained
herein.
|
-
End of
Preamble -
2
WITNESSETH
For
and
in consideration of the covenants herein contained, and upon the terms and
conditions herein set forth, Lessor and Lessee agree as follows:
1.
|
DESCRIPTION:
|
Lessor
hereby leases to Lessee, and Lessee hereby hires from Lessor, the Premises
as
defined in the Preamble which includes an allocable share of the Common
Facilities, as shown on plan or plans, initialed by the parties hereto, marked
Exhibit A attached hereto and made part of this Lease in the Building as defined
in the Preamble, (hereinafter called the “Building”) which is situated on that
certain parcel of land (hereinafter called “Office Building Area”) as described
on Exhibit A-1 attached hereto and made part of this Lease, together, with
the
right to use in common with other lessees of the Building, their invitees,
customers aid employees, those public areas of the Common Facilities as
hereinafter defined.
2.
|
TERM:
|
The
Premises are leased for a term to commence on the Commencement Date, and to
end
at 12:00 midnight on the Expiration Date, all as defined in the
Preamble.
3.
|
BASIC
RENT:
|
The
Lessee shall pay to the Lessor during the Term, the Fixed Basic Rent as defined
in the Preamble (hereinafter called “Fixed Basic Rent”) payable in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts. The Fixed Basic Rent
shall accrue at the Yearly Rate as defined in the Preamble and shall be payable,
in advance, on the first day of each calendar month during the- Term at the
Monthly Installments as defined in the Preamble, except that a proportionately
lesser sum may be paid for the first and last months of the Term of this Lease
if the Term commences on a day other than the first day of the month, in
accordance with the provisions of this Lease herein set forth. Lessor
acknowledges receipt from Lessee of the first monthly installment by check,
subject to collection, for Fixed Basic Rent for the first month of the Lease
Term. Lessee shall pay Fixed Basic Rent, and any Additional Rent as hereinafter
provided, to Lessor at Lessor’s above stated address, or at such other place as
Lessor may designate in writing, without demand and without counterclaim,
deduction or set off.
4. USE
AND OCCUPANCY:
Lessee
shall use and occupy the Premises for the Permitted Use as defined in the
Preamble.
If
at any
time during the Term of this Lease, Lessee adopts a policy prohibiting Lessee,
its employees, agents or invitees from smoking within the Promises, Lessee
shall
establish a designated area within the Premises where Lessee shall permit
smoking. Lessee shall establish such designated area at Lessee’s sole expense in
accordance with Article 6 of this Lease. Such designated area shall include,
among other things, adequate area, ventilation and fire safety equipment. Lessee
hereby acknowledges that such designated area is necessary and reasonable to
prevent smoking by Lessee, Lessee’s employees, agents and invitees in
unauthorized areas of the Building or Common Facilities in violation of relevant
fire and safety laws and regulations and to prevent fire hazards within the
Premises.
3
5. CARE
AND REPAIR OF PREMISES/ENVIRONMENTAL:
(a)
|
Lessee
shall commit no act of waste and shall take good care of the premises
and
the fixtures and appurtenances therein, and shall, in the use and
occupancy of the Premises, conform to all laws, orders and regulations
of
the federal, state and municipal governments or any of their departments
affecting the Premises and with any and all environmental requirements
resulting from the Lessee’s use of the Premises, this covenant to survive
the expiration or sooner termination of the Lease. Lessor shall,
subject
to the same being included in Operating Costs, make all necessary
repairs
to the Premises, Common Facilities and to the assigned parking areas,
if
any, except where the repair has been made necessary by misuse or
neglect
by Lessee or Lessee’s agents, servants, visitors or licensees, in which
event Lessee shall nevertheless make the repair but Lessee shall
pay to
Lessor, as Additional Rent, immediately upon demand, the costs therefor.
All improvements made by Lessee to the Premises, which are so attached
to
the Premises, shall become the property of Lessor upon installation.
Not
later than the last day of the Term, Lessee shall, at Lessee’s expense,
remove all Lessee’s personal property and those improvements made by
Lessee which have not become the property of Lessor, including trade
fixtures, cabinetwork, movable paneling, partitions and the like;
repair
all injury done by or in connection with the installation or removal
of
said property and improvements; and surrender the Premises in as
good
condition as they were at the beginning of the Term, reasonable wear
and
tear and damage by fire, the elements, casualty or other cause not
due to
the misuse or neglect by Lessee, Lessee’s agents, servants, visitors or
licensees excepted. All other property of Lessee remaining on the
Premises
after the last day of the Term of this Lease shall be conclusively
deemed
abandoned and may be removed by Lessor, and Lessee shall reimburse
Lessor
for the cost of such removal. Lessor may have any such property stored
at
Lessee’s risk and expense.
|
ENVIRONMENTAL
(b)
|
Compliance
with Environmental Laws.
Lessee shall, at Lessee’s own expense, promptly comply with each and every
federal, state, county and municipal environmental law, ordinance,
rule,
regulation, order, directive and requirement, now or hereafter existing
(“Environmental Laws”), applicable to the Premises, Lessee, Lessee’s
operations at the Premises, or all of
them.
|
(c)
|
ISRA
Compliance.
Lessee shall, at Lessee’s own expense, comply with the Industrial Site
Recovery Act, N.J.S.A. 13:1K-6 et
seq.,the
regulations promulgated thereunder and any amending and successor
legislation and regulations
(“ISRA”).
|
(d)
|
Information
to Lessor.
At
no expense to Lessor, Lessee shall promptly provide information and
sign
all documents requested by Lessor with respect to compliance with
Environmental Laws.
|
(e)
|
Lessor
Audit.
Lessee shall permit Lessor and its representatives access to the
Premises,
from time to time, to conduct an environmental assessment, investigation
and sampling, all at Lessee’s own
expense.
|
(f)
|
Lessee
Remediation.
Should any assessment, investigation or sampling reveal the existence
of
any spill, discharge or placement of Contaminants in, on, under,
or about,
or migrating from or onto the Premises, the Building or the Office
Building Area, as a result of the action or omission of Lessee or
a
“Lessee Representative”, then, in addition to being in default under this
Lease and Lessor having all rights available to Lessor under this
Lease
and by law by reason of such default, Lessee shall, at Lessee’s own
expense, in accordance with Environmental Laws, undertake all action
required by Lessor and any governmental authority, including, without
limitation, promptly obtaining and delivering to Lessor an unconditional
No Further Action Letter. For purposes of this Article, the term
“Lessee’s
Representative” shall mean any shareholder, officer, director, member,
partner, employee, agent, licensee, assignee, sublessee or invitee
of
Lessee, or any third party other than Lessor, or another lessee of
the
Building, or a shareholder, officer, director, member, partner, employee,
agent, licensee, assignee, sublessee or invitee of such other lessee.
In
no event shall any of Lessee’s remedial action involve engineering or
institutional controls, a groundwater classification exception area
or
well restriction area, and Lessee’s remedial action shall meet the most
stringent published or unpublished remediation standards for soil,
surface
water, groundwater and drinking water. Promptly upon completion of
all
required investigatory and remedial activities, Lessee shall, at
Lessee’s
own expense, to Lessor’s satisfaction, restore the affected areas of the
Premises, the Building or the Office Building Area, as the case may
be,
from any damage or condition caused by the investigatory or remedial
work.
|
4
(g)
|
Environmental Questionnaire.
Upon Lessor’s request, contemporaneously with the signing and delivery of
this Lease, and thereafter upon renewal of the lease, if at all,
Lessee
shall complete, execute and deliver to Lessor an environmental
questionnaire in form and substance satisfactory to
Lessor.
|
(h)
|
Environmental
Documents and Conditions.
For purposes of this Article, the term “Environmental Documents” shall
mean all environmental documentation concerning the Building or the
Office
Building Area, of which the Premises is a part, or its environs,
in the
possession or under the control of Lessee, including, without limitation,
plans, reports, correspondence and submissions. During the term of
this
Lease and subsequently, promptly upon receipt by Lessee or Lessee’s
Representatives, Lessee shall deliver to Lessor all Environmental
Documents concerning or generated by or on behalf of Lessee, whether
currently or hereafter existing. In addition, Lessee shall promptly
notify
Lessor of any environmental condition of which Lessee has knowledge,
which
may exist in, on, under, or about, or may be migrating from or onto
the
Building or the Office Building
Area.
|
(i)
|
Lessor’s
Right to Perform Lessee’s Obligations.
Notwithstanding anything to the contrary set forth in this Lease,
in the
event, pursuant to this Lease, Lessee is required to undertake any
sampling, assessment, investigation or remediation with respect to
the
Premises, the Building or the Office Building Area, as the case may
be,
then, at Lessee’s discretion, Lessor shall have the right, upon notice to
Lessee, from time to time, to perform such activities at Lessee’s expense,
and all sums incurred by Lessor shall be paid by Lessee, as Additional
Rent, upon demand.
|
(j)
|
Indemnity.
Lessee shall indemnify, defend and hold harmless Lessor, Lessor’s
officers, directors, shareholders, employees and personal or legal
representatives from and against any and all claims, liabilities,
losses,
damages, penalties and costs, foreseen or unforeseen, including,
without
limitation, counsel, engineering and other professional or, expert
fees,
which an indemnified party may incur resulting directly or indirectly,
wholly or partly from Lessee’s actions or omissions with regard to
Lessee’s obligations under this
Article.
|
(k)
|
Survival.
This Article shall survive the expiration or earlier termination
of this
lease. Lessee’s failure to abide by the terms of this Article shall be
restrainable or enforceable, as the case may be, by
injunction.
|
(l)
|
Interpretation.
The obligations imposed upon Lessee under subparagraphs (a) through
(j)
above are in addition to and are not intended to limit, but to expand
upon, the obligations imposed upon Lessee under this Article 5. As
used in
this Article, the term “Contaminants” shall include, without limitation,
any regulated substance, toxic substance, hazardous substance, hazardous
waste, pollution, pollutant, contaminant,
petroleum, asbestos or polychlorinated biphenyls, as defined or referred
to in any Environmental Laws. Where a law or regulation defines any
of
these terms more broadly then another, the broader definition shall
apply.
|
6. ALTERATIONS,
ADDITIONS OR IMPROVEMENTS:
Lessee
shall not, without first obtaining the written consent of Lessor, make any
alterations, additions or improvements in, to or about the
Premises.
5
7. ACTIVITIES
INCREASING FIRE INSURANCE RATES:
Lessee
shall not do or suffer anything to be done on the Premises which will increase
the rate of fire insurance on the Building.
8. ASSIGNMENT
AND SUBLEASE:
Provided
Lessee is not in default of any provisions of this Lease, Lessee may assign
or
sublease the within Lease to any party subject to the following:
a.
|
In
the event Lessee desires to assign this Lease or sublease all or
part of
the Premises to any other party, the terms and conditions of such
assignment or sublease shall be communicated
to the Lessor in writing no less than ninety (90) days prior to the
effective date of any such sublease or assignment, and, prior to
such
effective date, the Lessor shall have the option, exercisable in
writing
to the Lessee, to: (i) sublease such space from Lessee at the lower
rate
of (a) the rental rate per rentable square foot of Fixed Basic Rent
and
Additional Rent then payable pursuant to this Lease or (b) the terms
set
forth in the proposed sublease, (ii) recapture in the case of subletting,
that portion of the Premises to be sublet or all of the Premises
in the
case of an assignment (“Recapture Space”) so that such prospective
sublessee or assignee shall then become the sole Lessee of Lessor
hereunder, or (iii) recapture the Recapture Space for Lessor’s own use and
the within Lessee shall be fully released from any and all obligations
hereunder with respect to the Recapture
Space.
|
b.
|
In
the event that the Lessor elects not to recapture the Lease or relet
the
Premises as hereinabove provided, the Lessee may nevertheless assign
this
Lease or sublet the whole or any portion of the Premises, subject
to the
Lessor’s prior written consent, which consent shall not be unreasonably
withheld, on the basis of the following terms and
conditions:
|
i.
|
The
Lessee shall provide to the Lessor the name and address of the assignee
or
sublessee.
|
ii.
|
The
assignee or sublessee shall assume, by written instrument, all of
the
obligations of this Lease, and a copy of such assumption agreement
shall
be furnished to the Lessor within ten (10) days of its execution.
Any
sublease shall expressly acknowledge that said sublessee’s rights against
Lessor shall be no greater than those of Lessee. Lessee further agrees
that notwithstanding any such subletting, no other and further subletting
of the Premises by Lessee or any person claiming through or under
Lessee
shall or will be made except upon compliance with and subject to
the
provisions of this Article 8.
|
iii.
|
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 default by Lessee under this Lease, Lessor may,
at
its option, take over all of the right, title and interest of Lessee,
as
sublessor, under such sublease, and such sublessee shall, at Lessor’s
option, attorn to Lessor pursuant to the then executory provisions
of such
sublease, except that Lessor shall not (i) be liable for any previous
act
or omission of Lessee under such sublease or, (ii) be subject to
any
offset not expressly provided in such sublease which theretofore
accrued
to such sublease to which Lessor has not specifically consented in
writing
or by any previous prepayment of more than one month’s
rent.
|
iv.
|
The
Lessee and each assignee shall be and remain liable for the observance
of
all the covenants and provisions of this Lease, including, but not
limited
to, the payment of Fixed Basic Rent and Additional Rent reserved
herein,
through the entire Term of this Lease, as the same may be renewed,
extended or otherwise modified.
|
6
v.
|
The
Lessee and any assignee shall promptly pay to Lessor any consideration
received for any assignment and/or all of the rent, as and when received,
in excess of the Rent required to be paid by Lessee for the area
sublet
computed on the basis of an average square foot rent for the gross
square
footage Lessee has leased.
|
vi.
|
In
any event, the acceptance by the Lessor of any rent from the assignee
or
from any of the subtenants or the failure of the Lessor to insist
upon a
strict performance of any of the terms, conditions and covenants
herein
shall not release the Lessee herein, nor any assignee assuming this
Lease,
from any and all of the obligations herein during and for the entire
Term
of this Lease.
|
vii.
|
In
Lessor’s reasonable judgment, the proposed assignee or subtenant is
engaged in a business or activity, and the Premises, or the relevant
part
thereof, will be used in a manner, which (a) is in keeping with then
standard of the Building and (b) is limited to the use of the Premises
as
general offices.
|
viii.
|
The
proposed assignee of subtenant shall be an entity which has existed
for at
least one (1) year and is not then an occupant of any part of the
Building
or any other building then owned by Lessor or its affiliates within
a five
mile radius of the Building.
|
ix.
|
The
proposed assignee or subtenant is not an entity or a person with
whom
Lessor is or has been, within the preceding twelve (12) month period,
negotiating to lease space in the Building or any other building
owned by
Lessor or its affiliates within a five-mile radius of the
Building.
|
x.
|
There
shall not be more than one (1) subtenant in the
Premises.
|
xi.
|
Lessee
shall not advertise the subtenancy for less than the then current
market
rent per rentable square foot for the Premises as though the Premises
were
vacant.
|
xii.
|
Lessee
shall not have (a) publicly advertised the availability of the Premises
without prior notice to and approval by Lessor, nor shall any
advertisement state the name (as distinguished from the address)
of the
Building or (b) listed the Premises for subletting or assignment
with
other than a broker, agent or representative who waives any entitlement
to
a commission or other fee from Lessor in the
event of a recapturing of the
Premises;
|
xiii.
|
a
proposed occupancy shall not, in Lessor’s reasonable opinion, increase the
density of population using the Demised Premises to exceed one (1)
person
per 250 gross rentable square feet of space or exceed the parking
allocation presently provided for in this
Lease;
|
xiv.
|
The
proposed assignee or subtenant shall only use the Premises for general
offices and shall not be engaged in any of the
following:
|
(a)
|
educational,
including but not limited to, instructional facilities and correspondence
schools;
|
(b)
|
employment
agencies;
|
(c)
|
model
agencies;
|
(d)
|
photographic
studios or laboratories;
|
(e)
|
spas,
health, physical fitness or exercise salons;
|
(f)
|
small
loan offices;
|
(g)
|
real
estate brokerage or real estate sales offices open to the general
public
or construction offices;
|
(h)
|
medical
or dental facilities, including professional offices, treatment
facilities, dispensaries or
laboratories;
|
(i)
|
federal,
state or local government offices;
|
(j)
|
so-called
boiler room operations;
|
(k)
|
retail
stock brokerage offices; and
|
7
(l)
|
religious
organizations making facilities available to congregations for uses
other
than business purposes; and
|
(m)
|
executive
office suite use.
|
xv.
|
The
proposed assignee or subtenant shall not be entitled, directly or
indirectly, to diplomatic or sovereign immunity and shall be subject
to
the service of process in, and the jurisdiction of, the state courts
of
New Jersey.
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xvi.
|
Lessor
shall require a FIVE HUNDRED AND 00/100 DOLLAR ($500.00) payment
to cover
its handling charges for each request for consent to any sublet or
assignment prior to its consideration of the same. Lessee acknowledges
that its sole remedy with respect to any assertion that Lessor’s failure
to consent to any sublet or assignment is unreasonable shall be remedy
of
specific performance and Lessee shall have no other claim or cause
of
action against Lessor as a result of Lessor’s actions in refusing to
consent thereto.
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c.
|
If
Lessee is a corporation other than a corporation whose stock is listed
and
traded on a nationally recognized stock exchange, the provisions
of
Sub-section a. 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 results in a change of control of Lessee as if such
transfer
of stock (or other mechanism) which results in a change of control
of
Lessee were an assignment of this Lease, and if Lessee is a partnership
or
joint venture, 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 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 a partnership or joint venture, as if such transfer of an interest
in
the distributions of profits and losses of such partnership or joint
venture which results in a change of control of such partnership
or joint
venture were an assignment of this Lease; but said provisions shall
not
apply to transactions with a corporation into or with which Lessee
is
merged or consolidated or to which all or substantially all of Lessee’s
assets are transferred or to any corporation which controls or is
controlled by Lessee or is under common control with Lessee, provided
that
in the event of such merger, consolidation or transfer of all or
substantially all of Lessee’s assets (i) the successor to Lessee has a net
worth computed in accordance with generally accepted accounting principles
at least equal to the greater of (1) the net worth of Lessee immediately
prior to such merger, consolidation or transfer, or (2) the net worth
of
Lessee herein named on the date of this Lease, and (ii) proof satisfactory
to Lessor of such net worth shall have been delivered to Lessor at
least
10 days prior to the effective date of any such
transaction.
|
d.
|
In
the event that any or all of Lessee’s interest in the Premises and/or this
Lease is transferred by operation of law to any trustee, receiver,
or
other representative or agent of Lessee, or to Lessee as a debtor
in
possession, and subsequently any or all of Lessee’s interest in the
Premises and/or this Lease is offered or to be offered by Lessee
or any
trustee, receiver, or other representative or agent of Lessee as
to its
estate or property (such person, firm or entity being hereinafter
referred
to as the “Grantor”), for assignment, conveyance, Lease, or other
disposition to a person, firm or entity other than Lessor (each such
transaction being hereinafter referred to as a “Disposition”), it is
agreed that Lessor has and shall have a right of first refusal to
purchase, take, or otherwise acquire, the same upon the same terms
and
conditions as the Grantor thereof shall accept upon such Disposition
to
such other person, firm, or entity; and as to each such Disposition
the
Grantor shall give written notice to Lessor in reasonable detail
of all of
the terms and conditions of such Disposition within twenty (20) days
next
following its determination to accept the same but prior to accepting
the
same, and Grantor shall not make the Disposition until and unless
Lessor
has failed or refused to accept such right of first refusal as to
the
Disposition, as set forth
herein.
|
8
Lessor
shall have sixty (60) days next following its receipt of the written
notice as to such Disposition in which to exercise the option to
acquire
Lessee’s interest by such Disposition, and the exercise of the option by
Lessor shall be effected by notice to that effect sent to the Grantor,
but
nothing herein shall require Lessor to accept a particular Disposition
or
any Disposition, nor does the rejection of any one such offer of
first
refusal constitute a waiver or release of the obligation of the Grantor
to
submit other offers hereunder to Lessor. In the event Lessor accept
such
offer of first refusal, the transaction shall be consummated pursuant
to
the terms and conditions of the Disposition described in the notice
to
Lessor. In the event Lessor rejects such offer of first refusal,
Grantor
may consummate the Disposition with such other person, firm, or entity,
but any decrease in price of more than two percent (2%) of the price
sought from Lessor or any change in the terms of payment for such
Disposition shall constitute a new transaction requiring a further
option
of first refusal to be given to Lessor
hereunder.
|
e.
|
Without
limiting any of the provisions of Articles 12 and 13, if pursuant
to the
Federal Bankruptcy Code (herein referred to as the “Code”), or any similar
law hereafter enacted having the same general purpose, Lessee is
permitted
to assign this Lease notwithstanding the restrictions contained in
this
Lease, adequate assurance of future performance by an assignee expressly
permitted under such Code shall be deemed to mean the deposit of
cash
security in an amount equal to the sum of one year’s Fixed Basic Rent plus
an amount equal to the Additional Rent for the calendar year preceding
the
year in which such assignment is intended to become effective, which
deposit shall be held by Lessor for the balance of the Term, without
interest, as security for the full performance of all of Lessee’s
obligations under this Lease, to be held and applied in the manner
specified for security in Article
16.
|
f.
|
Except
as specifically set forth above, no portion of the Premises or of
Lessee’s
interest in this Lease may be acquired by any other person or entity,
whether by assignment, mortgage, sublease, transfer, operation of
law or
act of the Lessee, nor shall Lessee pledge its interest in this Lease
or
in any security deposit required
hereunder.
|
9. COMPLIANCE
WITH RULES AND REGULATIONS:
Lessee
shall observe and comply with the rules and regulations hereinafter set forth
in
Exhibit B attached hereto and made a part hereof and with such further
reasonable rules and regulations as Lessor may prescribe, on written notice
to
the Lessee, for the safety, care and cleanliness of the Building and the
comfort, quiet and convenience of other occupants of the Building. Lessee shall
not place a load upon any floor of the Premises exceeding the floor load per
square foot area which it was designed to carry and which is allowed by law.
Lessor reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Such installations shall be placed
and maintained by Lessee, at Lessee’s expense, in settings sufficient, in
Lessor’s judgement, to absorb and prevent vibration, noise and
annoyance.
10. DAMAGES
TO BUILDING:
If
the
Building is damaged by fire or any other cause to such extent the cost of
restoration, as reasonably estimated by Lessor, will equal or exceed twenty-five
percent (25%) of the replacement value of the Building (exclusive of
foundations) just prior to the occurrence of the damage, then Lessor may, no
later than the sixtieth (60th) day following the date of damage, give Lessee
a
notice of election to terminate this Lease, or if the cost of restoration will
equal or exceed fifty percent (50%) of such replacement value and if the
Premises shall not be reasonably usable for the purpose for which they are
leased hereunder, then Lessee may, no later than the sixtieth (60th) day
following the date of damage, give Lessor a notice of election to terminate
this
Lease. In either said event of election, this Lease shall be deemed to terminate
on the thirtieth (30th) day after the giving of said notice, and Lessee shall,
surrender possession of the Premises within a reasonable time thereafter, and
the Fixed Basic Rent, and any Additional Rent, shall be apportioned as of the
date of said surrender and any Fixed Basic Rent or Additional Rent paid for
any
period beyond said date shall be repaid to Lessee. If the cost of restoration
shall not entitle Lessor to terminate this Lease, or if despite the cost, Lessor
does not elect to terminate this Lease, Lessor shall restore the Building and
the Premises with reasonable promptness, subject to Force Majeure, and Lessee
shall have no right to terminate this Lease. Lessor need not restore fixtures
and improvements owned by Lessee.
9
In
any
case in which use of the Premises is affected by any damage to the Building,
there shall be either an abatement or an equitable reduction in Fixed Basic
Rent, depending on the period for which and the extent to which the Premises
are
not reasonably usable for the purpose for which they are leased hereunder.
The
words “restoration” and “restore” as used in this Article 10 shall include
repairs. If the damage results from the fault of the Lessee, Lessee’s agents,
servants, visitors or licensees, Lessee shall not be entitled to any abatement
or reduction in Fixed Basic Rent, except to the extent of any rent insurance
received by Lessor.
11. EMINENT
DOMAIN:
If
Lessee’s use of the Premises is materially affected due to the taking by eminent
domsn of (a) the Premises or any part thereof or any estate therein; or (b)
any
other part of the Building; then, in either event, this Lease shall terminate
on
the date when title vests pursuant to such taking. The Fixed Basic Rent, and
any
Additional Rent, shall be apportioned as of said termination date and any Fixed
Basic Rent or Additional Rent paid for any period beyond said date, shall be
repaid to Lessee. Lessee shall not be entitled to any part of the award for
such
taking or any payment in lieu thcreof but Lessee may file a separate claim
for
any taking of fixtures and improvements owned by Lessee which have not become
the Lessor’s property, and for moving expenses, provided the same shall, in no
way, affect or diminish Lessor’s award. In the event of a partial taking which
does not effect a termination of this Lease but does deprive Lessee of the
use
of a portion of the Premises, there shall either be an abatement or an equitable
reduction of the Fixed Basic Rent, and an equitable adjustment reducing the
Base
Period Costs as hereinafter defined depending on the period for which and the
extent to which the Premises so taken are not reasonably usable for the purpose
for which they are leased hereumder.
12. INSOLVENCY
OF LESSEE:
Either
(a) the appointment of a receiver to take possession of all or substantially
all
of the assets of Lessee, or, (b) a general assignment by Lessee for the benefit
of creditors, or, (c) any action taken or suffered by Lessee under any
insolvency or bankruptcy act, shall constitute a default of this Lease by
Lessee, and Lessor may terminate this Lease forthwith and upon notice of such
termination Lessee’s right to possession of the Premises shall cease, and Lessee
shall then quit and surrender the Premises to Lessor but Lessee shall remain
liable as hereinafter provided in Article 14 hereof.
13. LESSOR’S
REMEDIES ON DEFAULT:
If
Lessee
defaults in the payment of Fixed Basic Rent, or any Additional Rent, or defaults
in the performance of any of the other covenants and conditions hereof or
permits the Premises to become deserted, abandoned or vacated, Lessor may give
Lessee notice of such default, and if Lessee does not cure any Fixed Basic
Rent
or Additional Rent default within five (5) days or other default within fifteen
(15) days after giving of such notice (or if such other default is of such
nature that it cannot be completely cured within such period, if Lessee does
not
commence such curing within such fifteen (15) days and thereafter proceed with
reasonable diligence and in good faith to cure such default), then Lessor may
terminate this Lease on not less than ten (10) days notice to Lessee, and on
the
date specified in said notice, Lessee’s right to possession of the Premises
shall cease but Lessee shall remain liable as hereinafter provided. If this
Lease shall have been so terminated by Lessor pursuant to Articles 12 or 13
hereof, Lessor may at any time thereafter resume possession of the Premises
by
any lawful means and remove Lessee or other occupants and their effects. Lessee
shall pay to Lessor, on demand, such expenses as Lessor may incur, including,
without limitation, court costs and reasonable attorney's, fees and
disbursements, in enforcing the performance of any obligation of Lessee under
this Lease.
10
14. DEFICIENCY:
In
any
case where Lessor has recovered possession of the Premises by reason of Lessee’s
default, Lessor may, at Lessor’s option, occupy the Premises or cause the
Premises to be redecorated, altered, divided, consolidated with other adjoining
premises or otherwise changed or prepared for reletting, and may relet the
Premises or any part thereof, as agent of Lessee or otherwise, for a term or
terms to expire prior to, at the same time as or subsequent to, the original
Expiration Date of this Lease, at Lessor’s option and receive the rent therefor.
Rent so received shall be applied first to the payment of such expenses as
Lessor may have incurred in connection with the recovery of possession,
redecorating, altering, dividing, consolidating with other adjoining premises,
or otherwise, changing or preparing for reletting, and the reletting, including
brokerage and reasonable attorney’s fees, and then to the payment of damages in
amounts equal to the Fixed Basic Rent and Additional Rent hereunder and to
the
costs and expenses of performance of the other covenants of Lessee as herein
provided. Lessee agrees, in any such case, whether or not Lessor has relet,
to
pay to Lessor damages equal to the Fixed Basic Rent and Additional Rent from
the
date of such default to the date of expiration of the term demised and other
sums herein agreed to be paid by Lessee, less the net proceeds of the reletting,
if any, received by Lessor during the remainder of the unexpired term hereof,
as
ascertained from time to time, and the same shall be payable by Lessee on the
several rent days above specified. Lessee shall not be entitled to any surplus
accruing as a result of any such reletting. In reletting the Premises as
aforesaid, Lessor may grant rent concessions, and Lessee shall not be credited
therewith. No such reletting shall constitute a surrender and acceptance or
be
deemed evidence thereof. If Lessor elects, pursuant hereto, actually to occupy
and use the Premises or any part thereof during any part of the balance of
the
Term as originally fixed or since extended, there shall be allowed against
Lessee’s obligation for rent or damages as herein defined, during the period of
Lessor’s occupancy, the reasonable value of such occupancy, not to exceed, in
any event, the Fixed Basic Rent and Additional Rent herein reserved and such
occupancy shall not be construed as a release of Lessee’s liability
hereunder.
Alternatively,
in any case where Lessor has recovered possession of the Premises by reason
of
Lessee’s default, Lessor may at Lessor’s option, and at any time thereafter, and
with notice or other action by Lessor, and without prejudice to any other rights
or remedies it might have hereunder or at law or equity, become entitled to
recover from Lessee, as Damages for such breach, in addition to such other
sums
herein agreed to be paid by Lessee, to the date of re-entry, expiration and/or
dispossess, an amount equal to the difference between the Fixed Basic Rent
and
Additional Rent reserved in this Lease from the date of such default to the
date
of Expiration of the original Term demised and the then fair and reasonable
rental value of the Premises for the same period. Said Damages shall become
due
and payable to Lessor immediately upon such breach of this Lease and without
regard to whether this Lease be terminated or not, and if this Lease be
terminated, without regard to the manner in which it is terminated. In the
computation of such Damages, the difference between an installment of Fixed
Basic Rent and Additional Rent thereafter becoming due and the fair and
reasonable rental value of the Premises for the period for which such
installment was payable shall be discounted to the date of such default at
the
rate of not more than six percent (6%) per annum.
Lessee
hereby waives all right of redemption to which Lessee or any person under Lessee
might be entitled by any law now or hereafter in force.
Lessor’s
remedies hereunder are in addition to any remedy allowed by law.
15. SUBORDINATION
OF LEASE:
This
Lease shall, at Lessor’s option, or at the option of any holder of any
underlying lease or holder of any mortgages or trust deed, be subject and
subordinate to any such underlying leases and to any such mortgages or trust
deed which may now or hereafter affect the real property of which the Premises
form a part, and also to all renewals, modifications, consolidations and
replacements of said underlying leases and said mortgages or trust deed.
Although no instrument or act on the part of Lessee shall be necessary to
effectuate such subordination, Lessee will, nevertheless, execute and deliver
such further instruments confirming such subordination of this Lease as may
be
desired by the holders of said mortgages or trust deed or by any of the lessor’s
under such underlying leases. Lessee hereby appoints Lessor attorney-in-fact,
irrevocably, to execute and deliver any such instrument for Lessee. If any
underlying lease to which this Lease is subject terminates, Lessee shall, on
timely request, attorn to the owner of the reversion.
11
16. SECURITY
DEPOSIT:
Lessee
shall deposit with Lessor on the signing of this Lease, the Security Deposit
as
defined in the Preamble for the full and faithful performance of Lessee’s
obligations under this Lease, including without limitation, the surrender of
possession of the Premises to Lessor as herein provided. If Lessor applies
any
part of said Security Deposit to cure any default of Lessee, Lessee shall,
on
demand, deposit with Lessor the amount so applied so that Lessor shall have
the
full Security Deposit on hand at all times during the Term of this Lease. In
the
event a bona fide sale, subject to this Lease, Lessor shall have the right
to
transfer Security Deposit to the vendee, and Lessor shall be considered released
by Lessee from all liability for the return of the Security Deposit; and Lessee
agrees to look solely to the new lessor for the return of the Security Deposit,
and it is agreed that this shall apply to every transfer or assignment made
of
the Security Deposit to the new lessor. Provided this Lease is not in default,
the Security Deposit (less any portions thereof used, applied or retained by
Lessor in accordance with the provisions of this Article 16), shall be returned
to Lessee after the expiration or sooner termination of this Lease and after
delivery of the entire Premises to Lessor in accordance with the provisions
of
this Lease. Lessee covenants that it will not assign or encumber or attempt
to
assign or encumber the Security Deposit and Lessor shall not be bound by any
such assignment, encumbrance or attempt thereof.
In
the
event of the insolvency of Lessee, or in the event of the entry of a judgement
in any court against Lessee which is not discharged within thirty (30) days
after entry, or in the event a petition is filed by or against Lessee under
any
chapter of the bankruptcy laws of the State of New Jersey or the United States
of America, then in such event, Lessor may require the Lessee to deposit
additional security in an amount which in Lessor’s sole judgement would be
sufficient to adequately assure Lessee’s performance of all of its obligations
under this Lease including all payments subsequently accruing. Failure of Lessee
to deposit the security required by this Article 16 within ten (10) days after
Lessor’s written demand shall constitute a material breach of this Lease by
Lessee.
17. RIGHT
TO CURE LESSEE’S BREACH:
If
Lessee
breaches any covenant or condition of this Lease, Lessor may, on reasonable
notice to Lessee (except that no notice need be given in case of emergency),
cure such breach at the expense of Lessee and the reasonable amount of all
expenses, including attorney’s fees, incurred by Lessor in so doing (whether
paid by Lessor or not) shall be deemed Additional Rent payable on
demand.
18. MECHANIC’S
LIENS:
Lessee
shall, within fifteen (15) days after notice from Lessor, discharge or satisfy
by bonding or otherwise any mechanic liens for materials or labor claimed to
have been furnished to the Premises on Lessee’s behalf.
19. RIGHT
TO INSPECT AND REPAIR:
Lessor
may enter the Premises but shall not be obligated to do so (except as required
by any specific provision of this Lease) at any reasonable time on reasonable
notice to Lessee (except that no notice need be given in case of emergency)
for
the purpose of inspection of the making of such repairs, replacement or
additions in, to, on and about the Premises or the Building, as Lessor deems
necessary or desirable. Lessee shall have no claims or cause of action against
Lessor by reason thereof. In no event shall Lessee have any claim against Lessor
for interruption of Lessee’s business, however occurring, including but not
limited to that arising from the negligence of Lessor, its agents, servants
or
invitees, or from defects, errors or omissions in the construction or design
of
the Premises and/or the Building, including the structural and non-structural
portions thereof.
12
20. SERVICES
TO BE PROVIDED BY LESSOR/LESSOR’S EXCULPATION:
Subject
to intervening laws, ordinances, regulations and executive orders, while Lessee
is not in default under any of the provisions of this Lease, Lessor agrees
to
furnish, except on holidays, as set forth on Exhibit E attached hereto and
made
a part hereof:
a.
|
The
cleaning services, as set forth on Exhibit D attached hereto and
made a
part hereof, and subject to the conditions therein stated. Except
as set
forth on Exhibit D, Lessee shall pay the cost of all other cleaning
services required by Lessee.
|
b.
|
Heating,
ventilating and air conditioning (herein “HVAC”) as appropriate for the
season, and as set forth on Exhibit C-1, attached hereto and made
a part
hereof, together with Common Facilities lighting and electric energy
all
during Building Hours, as defined in the
Preamble.
|
c.
|
Cold
and hot water for drinking and lavatory
purposes.
|
d.
|
Elevator
service during Building Hours (if the Building contains an elevator
or
elevators for the use of the occupants
thereof).
|
e.
|
Restroom
supplies and exterior window cleaning when reasonably
required.
|
f.
|
Notwithstanding
the requirements of Exhibit C-l (as to HVAC) or D or any other provision
of this Lease, Lessor shall not be liable for failure to furnish
any of
the aforesaid services when such failure is due to Force Majeure,
as
hereinafter defined. Lessor shall not be liable, under any circumstances,
including, but not limited to, that arising from the negligence of
Lessor,
its agents, servants or invitees, or from defects, errors or omissions
in
the construction or design of the Premises and/or the Building, including
the structural and non-structural portions thereof, for loss of or
injury
to Lessee or to property, however occurring, through or in connection
with
or incidental to the furnishings of, or failure to furnish, any of
the
aforesaid services or for any interruption to Lessee’s business, however
occurring.
|
21. INTERRUPTION
OF SERVICES OR USE:
Interruption
or curtailment of any service maintained in the Building or at the Office
Building Area, if caused by Force Majeure, as hereinafter defined, shall not
entitle Lessee to any claim against Lessor or to any abatement in rent, and
shall not constitute a constructive or partial eviction, unless Lessor fails
to
take measures as may be reasonable under the circumstances to restore the
service without undue delay. If the Premises are rendered untenantable in whole
or in part, for a period of ten (10) consecutive business days, by the making
of
repairs, replacements or additions, other than those made with Lessee’s consent
or caused by misuse or neglect by Lessee, or Lessee’s agents, servants, visitors
or licensees, there shall be a proportionate abatement of Rent from and after
said tenth (10th) consecutive business day and continuing for the period of
such
untenantability. In no event, shall Lessee be entitled to claim a constructive
eviction from the Premises unless Lessee shall first have notified Lessor in
writing of the condition or conditions giving rise thereto, and if the complains
be justified, unless Lessor shall have failed, within a reasonable time after
receipt of such notice, to remedy, or commence and proceed with due diligence
to
remedy such condition or conditions, all subject to Force Majeure as hereinafter
defined.
13
22. BUILDING
STANDARD OFFICE ELECTRICAL SERVICE:
The
cost
of electric current which is supplied by the Lessor for use by the Lessee in
the
Premises, other than for heating or air conditioning purposes, shall be
reimbursed to the Lessor at terms, classification and rates normally charged
by
the public utilities corporation serving that part of the municipality where
the
subject Premises are located.
a.
|
From
and after the Commencement Date, Lessee agrees to pay as Additional
Rent
an estimated electrical charge of $.10 per square foot per month,
payable
on the first day of each and every month, until such time as an electrical
survey can be performed pursuant to Article 22(b)
below.
|
b.
|
Lessee
agrees that an independent electrical engineering consultant shall
make a
survey of electric power demand of the electric lighting fixtures
and the
electrical equipment of Lessee used in the Premises to determine
the
average monthly electric consumption thereof, and the costs of said
survey
shall be borne by Lessee. The findings of said consultant as to the
average monthly electric consumption of Lessee shall, unless objected
to
by Lessee within forty-five (45) days, be conclusive and binding
on Lessor
and Lessee. After Lessor’s consultant has submitted its report, Lessee
shall pay to Lessor, within ten (10) days after demand therefor by
Lessor,
the amount (based on the monthly consumption found by such consultant)
as
owing from the Lease Term’s Commencement Date, and the then expired
months, to include the then current month and thereafter adjusted
for the
estimated electrical charges already paid pursuant to Article 22(a),
on
the first day of every month, in advance, the amount set forth as
the
monthly consumption in said report. Said amounts shall be treated
as
Additional Rent due hereunder. Proportionate sums shall be payable
for
periods of less than a full month if the Term commences or ends on
any
other than the first or last day of the month. If Lessee objects
to said
findings, Lessee shall nevertheless pay and continue to pay the amount
determined by Lessor’s consultant until the issue is finally resolved, but
Lessee may, at its expense, seek the services of an independent electrical
consultant who shall make a survey as provided above. If Lessor’s and
Lessee’s consultant cannot agree as to Lessee’s consumption within thirty
(30) days of Lessee’s consultant’s findings either Lessor or Lessee may
request the American Arbitration Association in Somerset, New Jersey
to
appoint an electrical engineering consultant whose decision shall
be final
and binding on Lessor and Lessee, and whose cost shall be shared
equally.
Upon the issue being finally resolved, any overpayment made by Lessee
shall be promptly refunded.
|
c.
|
In
the event that there shall be an increase or decrease in the rate
schedule
(including surcharges or demand adjustments), of the public utility
for
the supply of Building Standard Office Electrical Service, or the
imposition of any tax with respect to such service or increase in
any such
tax following the Lease Term’s commencement, the Additional Rent payable
hereunder shall be adjusted equitably to reflect the increase or
decrease
in rate or imposition or increase in the aforesaid tax. All computations
shall be made on the basis of Lessee’s surveyed usage as if a meter
exclusively measuring such usage to the Premises was in
place.
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d.
|
Lessee
covenants that it shall notify Lessor immediately upon the introduction
of
any office equipment or lighting different from that on the Premises
as of
Lessor’s electrical survey or in addition to the aforesaid equipment or
lighting on the Premises as of said survey. The introduction of any
new or
different equipment or lighting shall be cause for, at Lessor’s election,
a resurveying of the Premises at Lessee’s expense. Lessor reserves the
right to inspect the Premises to insure compliance with this
provision.
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x.
|
Xxxxxx
shall not be liable in any way to Lessee for any loss, damage or
expense
which Lessee may sustain or incur as a result of any failure, defect
or
change in the quantity or character of electrical energy available
for
redistribution to the Premises pursuant to this Article 22 nor for
any
interruption in the supply, and Lessee agrees that such supply may
be
interrupted for inspection, repairs and replacement and in emergencies.
In
any event, the full measure of Lessor’s liability for any interruption in
the supply due to Lessor’s acts or omissions shall be an abatement of
Fixed Basic Rent and Additional Rent, unless Lessor fails to take
such
measures as may be reasonable under the circumstances to restore
such
service without undue delay. In no event shall Lessor be liable for
any
business interruption suffered by
Lessee.
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14
x.
|
Xxxxxx,
at Lessee’s expense, shall furnish and install all replacement lighting
tubes, lamps, ballasts and bulbs required in the Premises. Lessee,
however, shall have the right to furnish and/or install any or all
of the
items mentioned in this Article
22(f).
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g.
|
Lessee’s
use of electrical service as contemplated herein shall be during
Building
Hours, and any use in excess of said Building Hours shall result
in an
adjustment as set forth in Article 22(a) hereof to reflect such additional
consumption.
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23. ADDITIONAL
RENT:
It
is
expressly agreed that Lessee will pay in addition to the Fixed Basic Rent
provided in Article 3 hereof, an Additional Rent to cover Lessee’s Percentage as
defined in the Preamble, of the increased cost to Lessor, for each of the
categories enumerated herein, over the “Base Period Costs”, as defined in the
Preamble for said categories.
a.
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Operating
Cost Escalation–
If
the Operating Costs incurred for the Building in which the Premises
are
located and Office Building Area for any Lease Year or Partial Lease
Year
during the Lease Term shall be greater than the Base Operating Costs
(adjusted proportionately for periods less than a Lease Year), then
Lessee
shall pay to Lessor, as Additional Rent, Lessee’s Percentage of all such
excess Operating Costs. Operating Costs shall include, by way of
illustration and not of limitation: personal property taxes; management
fees; labor, including all wages and salaries; social security taxes,
and
other taxes which may be levied against Lessor upon such wages and
salaries; supplies; repairs and maintenance; maintenance and service
contracts; painting; wall and window washing; laundry and towel service;
tools and equipment (which are not required to be capitalized for
federal
income tax purposes); trash removal; lawn care; snow removal and
all other
items properly constituting direct operating costs according to standard
accounting practices (hereinafter collectively referred to as the
“Operating Costs”), but not including depreciation of Building or
equipment; interest; income or excess profits taxes; costs of maintaining
the Lessor’s corporate existence; franchise taxes; any expenditures
required to be capitalized for federal income tax purposes, unless
said
expenditures are for the purpose of reducing Operating Costs within
the
Building and Office Building Area, or those which under generally
applied
real estate practice are expensed or regarded as deferred expenses
or are
required under any governmental or quasi-governmental law, statute,
ordinance, rule, order, requirements or regulation, in which event
the
costs thereof shall be included. Notwithstanding anything contained
herein
to the contrary, any additional costs incurred by Lessor during the
2002
Calendar Year by reason of Lessor or any of its vendors entering
into new
labor contracts or renewals or modifications of existing labor contracts
shall not be included in Base Operating Costs. The Base Operating
Costs
shall as be as defined in the
Preamble.
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b.
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Fuel,
Utilities and Electric Cost Escalation
(hereinafter referred to as “Utility and Energy Costs”) – If
the
Utility and Energy Costs, including any fuel surcharges or adjustments
with respect thereto, incurred for water, sewer, gas, electric, other
utilities and heating, ventilating and air conditioning for the Building,
to include all leased and leasable areas (not separately billed or
metered
within the Building), and Common Facilities electric, lighting, water,
sewer and other utilities for the Building and Office Building Area,
for
any Lease Year or Partial Lease Year, during the Term, shall be greater
than the Base Utility and Energy Costs Expense (adjusted proportionately
for periods less than a Lease Year), then Lessee shall pay to Lessor
as
Additional Rent, Lessee’s Percentage of all such excess Utility and Energy
Costs. As used in this Article 23, the Base Utility and Energy Costs
shall
be as defined in the Preamble.
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15
c.
|
Tax
Escalation–
If the Real Estate Taxes for the Building and Office Building Area
at
which the Premises are located for any Lease Year or Partial Lease
Year,
during the Lease Team, shall be greater than the Base Real Estate
Taxes
(adjusted proportionately for periods less than a Lease Year), then
Lessee
shall pay to Lessor as Additional Rent, Lessee’s Percentage as hereinafter
defined, of all such excess Real Estate
Taxes.
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As
used in this Article 23(c), the words and terms which follow mean
and
include the following:
|
i.
|
“Base
Real Estate Taxes” shall be as defined in the
Preamble.
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ii.
|
“Real
Estate Taxes” shall mean the property taxes and assessments imposed upon
the Building and Office Building Area, or upon the rent, as such,
payable
to the Lessor, including, but not limited to, real estate, city,
county,
village, school and transit taxes, or taxes, assessments, or charges
levied, imposed or assessed against the Building and Office Building
Area
by any other taxing authority, whether general or specific, ordinary
or
extraordinary, foreseen or unforeseen. If due to a future change
in the
method of taxation, any franchise, income or profit tax shall be
levied
against Lessor in substitution for, or in lieu of, or in addition
to, any
tax which would otherwise constitute a Real Estate Tax, such franchise,
income or profit shall be deemed to be a Real Estate Tax for the
purposes
hereof; conversely, any additional real estate tax hereafter imposed
in
substitution for, or in lieu of any franchise, income or profit tax
(which
is not in substitution for, or in lieu of, or in addition to, a Real
Estate Tax as hereinbefore provided) shall not be deemed a Real Estate
Tax
for the purposes hereof.
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d.
|
Insurance
Cost Escalation–
If the Insurance Costs for the Building and Office Building Area
for any
Lease Year or partial Lease Year during the Term shall be greater
than the
Insurance Cost Expense Stop (adjusted proportionately for periods
less
than a Lease Year), Lessee shall pay to Lessor as Additional Rent
for each
Lease Year or partial Lease Year commencing from and after the
Commencement Date, Lessee’s Percentage of such excess Insurance
Costs.
|
As
used in this Article 23(d), the words and terms which follow mean
and
include the following:
|
i.
|
“Insurance
Cost Expense Stop” shall be as defined in the
Preamble.
|
ii.
|
“Insurance
Costs” shall mean all fire and other insurance costs incurred by Lessor
in
connection with its operation and maintenance of the Building and
Office
Building Area, for any Lease Year or Partial Lease Year, during the
Term.
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e.
|
Lease
Year–
As used in this Article 23, Lease Year shall mean a calendar year.
Any
portion of the Term which is less than a Lease Year as hereinbefore
defined, that is, from the Commencement Date through the following
December 31, and from the last January 1, falling within the Term
to the
end of the Term, shall be deemed a “Partial Lease Year”. Any reference in
this Lease to a Lease Year shall, unless the context clearly indicates
otherwise, be deemed to be a reference to a Partial Lease Year if
the
period in question involves a Partial Lease
Year.
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f.
|
Payment–
At any time, and from time to time, after the establishment of the
Base
Period Costs for each of the categories referred to above, Lessor
shall
advise Lessee in writing of Lessee’s Percentage share with respect to each
of the categories as estimated for the next twelve (12) month period
(or
proportionate part thereof if the last period prior to the Lease’s
expiration is less than twelve (12) months) as then known to the
Lessor,
and thereafter, the Lessee shall pay as Additional Rent, Lessee’s
Percentage share of these costs for the then current period affected
by
such advice (as the same may be periodically revised by Lessor as
additional costs are incurred) in equal monthly installments, such
new
rates being applied to any months, for which the Fixed Basic Rent
shall
have already been paid which are affected by the Operating Cost Escalation
and/or Utility and Energy Cost Escalation and/or Tax Escalation Costs
and/or Insurance Costs above referred to, as well as the unexpired
months
of the current period, the adjustment for the then expired months
to be
made at the payment of the next succeeding monthly rental, all subject
to
final adjustment at the expiration of each Lease Year as defined
in
Article 23(e) hereof (or Partial Lease Year if the last period prior
to
the Lease’s termination is less than twelve (12 months). However, Lessor
shall be reimbursed by Lessee monthly during the first year of the
Term
for additional Utility and Energy Cost Escalations resulting from
an
increase in the monthly rate over the Base Utility
Rate.
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16
In
the event the last period prior to the Lease’s termination is less than
twelve (12) months, the Base Period Costs during said period shall
be
proportionately reduced to correspond to the duration of said final
period.
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g.
|
Books
and Reports–
For the protection of Lessee, Lessor shall maintain books of account
which
shall be open to Lessee and its representatives at all reasonable
times so
that Lessee can determine that such Operating, Utility and Energy
and Real
Estate Tax Costs have, in fact, been paid or incurred. Lessee’s
representatives shall mean only (i) Lessee’s employees or (ii) a Certified
Public Accounting firm, and neither Lessee’s employees nor any Certified
Public Accounting firm shall be permitted to (i) perform such inspection
and/or audit on a contingency basis, or (ii) perform such an inspection
and/or audit for any other tenant in the Building. At Lessor’s request,
Lessee shall execute a confidentiality agreement reasonably acceptable
to
Lessor prior to any examination of Lessor’s books and records. In the
event Lessee disputes any one or more of said charges, Lessee shall
attempt to resolve such dispute with Lessor, provided that if such
dispute
shall not be satisfactorily settled between Lessor and Lessee, the
dispute
shall be referred by either party to an independent certified public
accountant to be mutually agreed upon, and if such an accountant
cannot be
agreed upon, The American Arbitration Association may be asked by
either
party to select an arbitrator, whose decision on the dispute will
be final
and binding upon both parties, who shall jointly share any cost of
such
arbitration. Pending resolution of said dispute the Lessee shall
pay to
Lessor the sum so billed by Lessor subject to its ultimate resolution
as
aforesaid.
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h.
|
Right
of Review–
Once Lessor shall have finally determined said Operating, Utility
and
Energy or Real Estate Tax Costs at the expiration of a Lease Year,
then as
to the item so established, Lessee shall only be entitled to dispute
said
charge as finally established for a period of six (6) months after
such
charge is finally established, and Lessee specifically waives any
right to
dispute any such charge at the expiration of said six (6) month
period.
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i.
|
Occupancy
Adjustment–
if, with respect to Operating Cost Escalation, as established in
Article
23(a) hereof, and Utility and Energy Cost Escalation, as established
in
Article 23(b) hereof, the Building is less than eighty-five percent
(85%)
occupied during the establishment of the respective Base Periods,
then the
Base Costs incurred with respect to said Operating Cost or Utility
and
Energy Cost shall be adjusted during any such period within the Base
Period so as to reflect eighty-five percent (85%) occupancy. Similarly,
if
during any Lease Year or Partial Lease Year, subsequent to the Base
Period
the Building is less than eighty-five percent (85%) occupied, then
the
actual costs incurred for Operating Cost and Utility and Energy Cost
shall
be increased during any such period to reflect eighty-five percent
(85%)
occupancy so that at all times after the Base Period the Operating
Cost or
Utility and Energy Cost shall be actual costs, but in the event less
than
eighty-five percent (85%) of the Building is occupied during all
or part
of the Lease Year involved, the Operating Cost or Utility and Energy
Cost
shall not be less than that which would have been incurred had eighty-five
percent (85%) of the Building been occupied. The aforesaid adjustment
shall only be made with respect to those items that are in fact affected
by variations in occupancy
levels.
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17
24. LESSEE’S
ESTOPPEL:
Lessee
shall, from time to time, on not less that ten (10) days prior written request
by Lessor, execute, acknowledge and deliver to Lessor a written statement
certifying that the Lease is unmodified and in full force and effect, or that
the Lease is in full force and effect as modified and listing the instruments
of
modification; the dates to which the rents and charges have been paid; and,
to
the best of Lessee’s knowledge, whether or not Lessor is in default hereunder,
and if so, specifying the nature of the default. It is intended that any such
statement delivered pursuant to this Article 24 may be relied on by a
prospective purchaser of Lessor’s interest or mortgagee of Lessor’s interest or
assignee of any mortgage of Lessor’s interest. Lessee shall also execute and
deliver the form “Lessee Estoppel Certificate” attached hereto as Exhibit
F.
25. HOLDOVER
TENANCY:
If
Lessee
holds possession of the Premises after the Expiration Date of this Lease, Lessee
shall (i) become a tenant from month to month under the provisions herein
provided, but at twice the monthly fixed basic rental for the last month of
the
term plus the Additional Rent which shall continue as provided in the Lease
which sum shall be payable in advance on the first day of each month, and
without the requirement for demand or notice by Lessor to Lessee demanding
delivery of possession of said Premises, and such tenancy shall continue until
terminated by Lessor, or until Lessee shall have given to Lessor, at least
sixty
(60) days prior to the intended date of termination, a written notice of intent
to terminate such tenancy, which termination date must be as of the end of
a
calendar month; and (ii) indemnify Lessor against lost or liability resulting
from the delay by Lessee in so surrendering the Premises including, without
limitation, any claims made by any succeeding occupant founded on such delay.
Lessee’s obligations under this Section shall survive the expiration or sooner
termination of the Lease. The time limitations described in this Article 25
shall not be subject to extension for Force Majeure.
26. RIGHT
TO SHOW PREMISES:
Lessor
may show the Premises to prospective purchasers and mortgagees; and during
the
twelve (12) months prior to termination of this Lease, to prospective tenants,
during Building Hours on reasonable notice to Lessee.
27. LESSOR’S
WORK –LESSEE’S DRAWINGS:
a.
|
Lessor
agrees that, prior to the commencement of the Term of this Lease,
it will
do substantially all of the work in the Premises in accordance with
Exhibit C attached hereto and made a part
hereof.
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b.
|
Lessee
will timely supply such drawings and information to Lessor as set
forth in
Exhibit C. Any delay occasioned by Lessee’s failure to timely supply such
drawings and information shall not delay the Commencement Date of
the Term
and Lessee’s obligations hereunder, and the same shall commence on the
date the Premises would have been delivered to Lessee pursuant to
Article
2, but for Lessee’s delay.
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c.
|
Lease
commencement shall occur and the Commencement Date is defined as
that date
when Lessor has done substantially all of the work to be done by
Lessor in
accordance with Exhibit C, unless Lessor has been precluded from
completing said work as a result of Lessee’s acts or omissions including,
but not limited to, its failure to comply with Article 27(b) hereof.
Occupancy by Lessee or the delivery of a Certificate of Occupancy
by
Lessor (if required pursuant to local law) shall be prima facie evidence
that Lessor has done substantially all of the
work.
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18
28. WAIVER
OF TRIAL BY JURY:
To
the
extent such waiver is permitted by law, the parties waive trial by jury in
any
action or proceeding brought in connection with this Lease or the
Premises.
29. LATE
CHARGE:
Anything
in this Lease to the contrary notwithstanding, at Lessor’s option, Lessee shall
pay a “Late Charge” of eight percent (8%) of any installment of Fixed Basic Rent
or Additional Rent paid more than five (5) days after the due date thereof,
to
cover the extra expense involved in handling delinquent payments, said Late
Charge to be considered Additional Rent. The amount of the Late Charge to be
paid by Lessee shall be reassessed and added to Lessee’s obligations for each
successive monthly period until paid.
30. LESSEE’S
INSURANCE:
a.
|
Lessee
covenants to provide at Lessee’s cost and expense on or before the earlier
of (i) the Commencement Date, or (ii) Lessee’s taking actual possession
for the purpose of completing any improvement work, and to keep in
full
force and effect during the entire Term and so long thereafter as
Lessee,
or anyone claiming by, through or under Lessee, shall occupy the
Premises,
insurance coverage as follows:
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i.
|
Commercial
General Liability insurance with contractual liability endorsements
with
respect to the Premises and the business of Lessee in which Lessee
shall
be adequately covered under limits of liability of not less than
FIVE
MILLION AND 00/100 DOLLARS ($5,000,000.00) combined single limit
per
occurrence for bodily or personal injury (including death) and property
damage. Such insurance may be carried (x) under a blanket policy
covering
the Premises and other locations of Lessee, if any, provided that
each
such policy shall in all respects comply with this Article and shall
specify that the portion of the total coverage of such policy that
its
allocated to the Premises is in the amounts required pursuant to
this
Article 30 and (y) under a primary liability policy of not less than
ONE
MILLION AND 00/100 DOLLARS ($1,000,000.00) and the balance under
an
umbrella policy. Notwithstanding anything to the contrary contained
in
this Lease, the carrying of insurance by Lessee in compliance with
this
Article 30 shall not modify, reduce, limit or impair Lessee’s obligations
and liability under Article 33
hereof.
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ii.
|
Fire
and Extended Coverage, Vandalism, Malicious Mischief, Sprinkler Leakage
and Special Extended Coverage Insurance in an amount adequate to
cover the
cost of replacement of all personal property, decoration, trade fixtures,
furnishings, equipment in the Premises and all contents therein.
Lessor
shall not be liable for any damage to such property of Lessee by
fire or
other peril includable in the coverage afforded by the standard form
of
fire insurance policy with extended coverage endorsement attached
(whether
or not such coverage is in effect), no matter how caused, it being
understood that the Lessee will look solely to its insurer for
reimbursement.
|
iii.
|
Worker’s
Compensation Insurance in the minimum statutory amount covering all
persons employed by Lessee.
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iv.
|
Said
limits shall be subject to periodic review and Lessor reserves the
right
to increase said coverage limits if, in the reasonable opinion of
Lessor,
said coverage becomes inadequate and is less than that commonly maintained
by tenants in similar buildings in the area by tenants making similar
uses. On or before the Commencement Date, and thereafter at Lessor’s
request, Lessee shall provide Lessor evidence of the insurance coverage
required herein in the form of a duplicate original insurance policy,
an
insurance binder (countersigned by the insurer), or Evidence of Insurance
(in form XXXXX 27 with respect to property insurance and XXXXX 25-S
with
respect to liability insurance) for each of the insurance policies
Lessee
is required to carry in compliance with its obligations under this
Lease.
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19
b.
|
All
of the aforesaid insurance shall (i) name Lessor as an additional
insured
on a primary basis; (ii) be written by one or more responsible insurance
companies licensed in the State of New Jersey satisfactory to Lessor
and
in form satisfactory to Lessor, (iii) contain endorsements substantially
as follows: “It is understood and agreed that the insurer will give to
Lessor, or any successor lessor, c/o Xxxx-Xxxx Realty Corporation,
00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx, thirty (30) days prior written
notice of any material change in or cancellation of this policy.”; (iv)
shall be written on an “occurrence” basis and not an a “claims made”
basis.
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c.
|
Lessee
shall be solely responsible for payment of premium and Lessor (or
its
designee) shall not be required to pay any premium for such insurance.
Lessee shall deliver to Lessor at least fifteen (15) days prior to
the
expiration of such policy, either a duplicate original or a certificate
it
being the intention of the parties hereto that the insurance required
under the terms hereof shall be continuous during the entire Term
of this
Lease and any other period of time during which pursuant to the Term
hereof, said insurance is required. Any insurance carried by Lessee
shall
be in excess of and will not contribute with the insurance carried
by
Lessor for injuries or damage arising out of the
Premises.
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d.
|
Lessee
agrees, at its own cost and expense, to comply with all rules and
regulations of the National Fire Protection Association (NFPA) National
Fire Code. If, at any time or from time to time, as a result of or
in
connection with any failure by Lessee to comply with the foregoing
sentence or any act or omission or commission by Lessee, its employees,
agents, contractors or licensees, or a result of or in connection
with the
use to which the Premises are put (notwithstanding that such use
may be
for the purposes hereinbefore permitted or that such use may have
been
consented to by Lessor), the fire insurance rate(s) applicable to
the
Premises shall be higher than which would be applicable for a business
office legally permitted therein, Lessee agrees that it will pay
to Lessor
as Additional Rent, such portion of the premiums for all Lessor’s fire
insurance policies in force with respect to the building and the
contents
of any occupant thereof as shall be attributable to such higher
rate(s).
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x.
|
Xxxxxx
makes no representation that the limits of liability specified to
be
carried by Lessee or Lessor under the terms of this Lease are adequate
to
protect Lessee against Lessee’s undertaking under this Article 30, and in
the event Lessee believes that any such insurance coverage called
for
under this Lease is insufficient, Lessee shall provide, at its own
expense, such additional insurance as Lessee deems
adequate.
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f.
|
In
the event the Premises or its contents are damaged or destroyed by
fire or
other insured casualty, (i) Lessor, to the extent of the coverage
of
Lessor’s policies of fire insurance, hereby waives its rights, if any,
against Lessee with respect to such damage or destruction, even if
said
fire or other casualty shall have been caused, in whole or in part,
by the
negligence of Lessee, and (ii) Lessee, to the extent of the coverage
of
Lessee’s policies of fire insurance with extended coverage, hereby waives
its rights, if any, against Lessor with respect to such damage, or
destruction, even if said fire or other casualty shall have been
caused,
in whole or in part, by the negligence of Lessor; provided, however,
such
waivers of subrogation shall only be effective with respect to loss
or
damage occurring during such time as Lessor’s or Lessee’s policies of fire
insurance (as the case may be) shall contain a clause or endorsement
providing in substance that the aforesaid waiver of subrogation shall
not
prejudice the type and amount of coverage under such policies or
the right
of Lessor or Lessee (as the case may be) to recover thereunder. If,
at any
time, Lessor’s or Lessee’s insurance carrier refuses to write insurance
which contains a consent to the foregoing waiver of subrogation,
Lessor or
Lessee, as the case may be, shall notify the party thereof in writing,
and
upon the giving of such notice, the provisions of this Section shall
be
null and void as to any casualty which occurs after such notice.
Lessor’s
or Lessee’s insurance carrier shall make a charge for the incorporation of
the aforesaid waiver of subrogation in its policies, then the party
requesting the waiver shall promptly pay such charge to the other
party
upon demand. In the event the party requesting their waiver fails
to pay
such charge upon demand, the other party shall be released of its
obligation to supply such
waiver.
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20
g.
|
Should
Lessee fail to maintain the insurance coverage as act forth in this
Article 30, then Lessee shall be in default hereunder and shall be
deemed
to have breached its covenants as set forth
herein.
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31. NO
OTHER REPRESENTATIONS:
No
representations or promises shall be binding on the parties hereto except those
representations and promises contained herein or in some future writing signed
by the party making such representation(s) or promise(s).
32. QUIET
ENJOYMENT:
Lessor
covenants that if, and so long as, Lessee pays Fixed Basic Rent, and any
Additional Rent as herein provided, and performs Lessee’s covenants hereof,
Lessor shall do nothing to affect Lessee’s right to peaceably and quietly have,
hold and enjoy the Premises for the Term herein mentioned, subject to the
provisions of this Lease.
33. INDEMNITY:
Lessee
shall defend, indemnify and save harmless Lessor and its agents against and
from, (a) any and all claims (i) arising from (x) the conduct or management
by
Lessee, its subtenants, licensees, its or their employees, agents, contractors
or invitees on the Premises or of any business therein, or (y) any work or
thing
whatsoever done, or any condition created (other than by Lessor for Lessor’s or
Lessee’s account) in or about the Premises during the Term of this Lease, or
during the period of time, if any, prior to the Commencement Date that Lessee
may have been given access to the Premises, (z) any default by Lessee under
the
terms, covenants and conditions of this Lease or (ii) arising from any negligent
or otherwise wrongful act or omission of Lessee or any of its subtenants or
licensees or its or their employees, agents, contractors or invitees, and (b)
all costs, expenses and liabilities including attorneys fees and disbursements
incurred in or in connection with each such claim, action or proceeding brought
thereon. In case any action or proceeding be brought against Lessor by reason
of
any such claim, Lessee, upon notice from Lessor, shall resist and defend such
action or proceeding.
34. ARTICLE
HEADINGS:
The
article headings in this Lease and position of its provisions are intended
for
convenience only and shall not be taken into consideration in any construction
or interpretation of this Lease or any of its provisions.
35. APPLICABILITY
TO HEIRS AND ASSIGNS:
The
provisions of this Lease shall apply to, bind and inure to the benefit of Lessor
and Lessee, and their respective heirs, successors, legal representatives and
assigns. It is understood that the term “Lessor” as used in this Lease means
only the owner, a mortgagee in possession or a term lessee of the Building,
so
that in the event of any sale of the Building or of any lease thereof, or if
a
mortgagee shall take possession of the Premises, the Lessor herein shall be
and
hereby is entirely freed and relieved of all covenants and obligations of Lessor
hereunder accruing thereafter, and it shall be deemed without further agreement
that the purchaser, the term lessee of the Building, or the mortgagee in
possession has assumed and agreed to carry out any and all covenants and
obligations of Lessor hereunder.
21
36. OUTSIDE
PARKING SPACES:
Lessee’s
occupancy of the Premises shall include the use of the number of outside parking
spaces as set forth in the Preamble, all of which will be unassigned. Lessor
shall not be responsible for any damage or theft of any vehicle in the parking
area and shall not be required to keep parking spaces clear of unauthorized
vehicles or to otherwise supervise the use of the parking area. Lessee shall,
upon request, promptly furnish to Lessor the license numbers of the cars
operated by Lessee and its subtenants, licensees, invitees, concessionaires,
officers and employees. If any vehicle of the Lessee, or of any subtenant,
licensee, concessionaire, or of their respective officers, agents or employees,
is parked in any part of the Common Facilities other than the employee parking
area(s) designated therefor by Lessor, Lessee shall pay to Lessor such penalty
as may be fixed by Lessor from time to time. All amounts due under the
provisions of this Article 36 shall be deemed to be Additional
Rent.
37. LESSOR’S
LIABILITY FOR LOSS OF PROPERTY:
Lessor
shall not be liable for any loss of property from any cause whatsoever,
including but not limited to theft or burglary from the Premises, and any such
loss arising from the negligence of Lessor, its agents, servants or invitees,
or
from defects, errors or omissions in the construction or design of the Premises
and/or the Building, including the structural and non-structural portions
thereof, and Lessee covenants and agrees to make no claim for any such loss
at
any time.
38. PARTIAL
INVALIDITY:
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.
39.
LESSEE’S
BROKER:
Lessee
represents and warrants to Lessor that its broker, as defined in the Preamble
is
the sole broker with whom Lessee has negotiated in bringing about this Lease
and
Lessee agrees to indemnify and hold Lessor and its mortgagee(s) harmless from
any and all claims of other brokers and expenses in connection therewith arising
out of or in connection with the negotiation of or the entering into this Lease
by Lessor and Lessee. In no event shall Lessor’s mortgagee(s) have any
obligation to any broker involved in this transaction. In the event that no
broker was involved as aforesaid, then Lessee represents and warrants to the
Lessor that no broker brought about this transaction, and Lessee agrees to
indemnify and hold Lessor harmless from any and all claims of any broker arising
out of or in connection with the negotiations of, or entering into of, this
Lease by Lessee and Lessor.
40. PERSONAL
LIABILITY:
Notwithstanding
anything to the contrary provided in this Lease, it is specifically understood
and agreed, such agreement being a primary consideration for the execution
of
this Lease by Lessor, that there shall be absolutely no personal liability
on
the part of Lessor, its constituent members (to include but not be limited
to,
officers, directors, partners and trustees) their respective successors, assigns
or any mortgagee in possession (for the purposes of this Article, collectively
referred to as “Lessor”), with respect to any of the terms, covenants and
conditions of this Lease, and that Lessee shall look solely to the equity of
Lessor in the Building for the satisfaction of each and every remedy of Lessee
in the event of any breach by Lessor of any of the terms, covenants and
conditions of this Lease to be performed by Lessor, such exculpation of
liability to be absolute and without any exceptions whatsoever.
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41. NO
OPTION:
The
submission of this Lease Agreement for examination does not constitute a
reservation of, or option for, the Premises, and this Lease Agreement becomes
effective as a Lease Agreement only upon execution and delivery thereof by
Lessor and Lessee.
42. DEFINITIONS:
a.
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Affiliate–
Affiliate shall mean any corporation related to Lessee as a parent,
subsidiary or brother-sister corporation so that such corporation
and such
party and other corporations constitute a controlled group as determined
under Section 1563 of the Internal Revenue Code of 1986, as amended
and as
elaborated by the Treasury Regulations promulgated thereunder or
any
business entity in which Lessee has not less than a fifty percent
(50%)
interest.
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b.
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Common
Facilities–
Common Facilities shall mean the non-assigned parking areas; lobby;
elevator(s); fire stairs; public hallways; public lavatories; all
other
general Building facilities that service all Building tenants; air
conditioning rooms; fan rooms; janitors’ closets; electrical closets;
telephone closets; elevator shafts and machine rooms; flues; stacks;
pipe
shafts and vertical ducts with their enclosing walls. Lessor may
at any
time close temporarily any Common Facilities to make repairs or changes
therein or to effect construction, repairs or changes within the
Building,
or to discourage non-tenant parking, and may do such other acts in
and to
the Common Facilities as in its judgement may be desirable to improve
the
convenience thereof, but shall always in connection therewith, endeavor
to
minimize any inconvenience to
Lessee.
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c.
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Force
Majeure–
Force Majecure shall mean and include those situations beyond Lessor’s
reasonable control, including by way of example and not by way a
limitation, acts of God; accidents; repairs; strikes; shortages of
labor,
supplies or materials; inclement weather, or, where applicable, the
passage of time while waiting for an adjustment or insurance proceeds.
Any
time limits required to be met by either party hereunder, whether
specifically made subject to Force Majeure or not, except those related
to
the payment of Fixed Basic Rent or Additional Rent, shall, unless
specifically stated to the contrary elsewhere in this Lease, be
automatically extended by the number of days by which any performance
called for is delayed due to Force
Majeure.
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d.
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Lessee’s
Percentage–
The parties agree that Lessee’s Percentage, as defined in the Preamble,
reflects and will be continually adjusted to reflect the ratio of
the
gross square feet of the area rented to Lessee (including an allocable
share of all Common Facilities) [the numerator] as compared with
the total
number of gross square feet of the entire Building (or additional
buildings that may be constructed within the Building Area) [the
denominator] measured outside wall to outside wall, but excluding
therefrom any storage areas. Lessor shall have the right to make
change or
revisions in the Common Facilities of the Building so as to provide
additional leasing area. Lessor shall also have the right
to
construct additional buildings in Office Building Area for such purposes
as Lessor may deem appropriate, and subdivide the lands for that
purpose
if necessary, and upon so doing, the Office Building Area shall become
the
subdivided lot on which the Building in which the Premises is located.
However, if any service provided for in Article 23(a) or any utility
provided for in Article 23(b) is separately billed or separately
metered
within the Building, then the square footage so billed or metered
shall be
subtracted from the denominator and the Lessee’s proportionate share for
such service and/or utility shall be separately computed, and the
Base
Costs for such item shall not include any charges attributable to
said
square footage. Lessee understands that as a result of changes in
the
layout of the Common Facilities from time to time occurring due to,
by way
of example and not by way of limitation, the rearrangement of corridors,
the aggregate of all Building tenant proportionate shares may be
equal to,
less than or greater than one hundred percent
(100%).
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23
43. LEASE
COMMENCEMENT:
Notwithstanding
anything contained herein to the contrary, if Lessor, for any reason whatsoever,
including Lessor’s negligence except as provided for in Article 27(b), cannot
deliver possession of the Premises, as provided for in Article 27(a), to Lessee
at the commencement of the agreed Term as set forth in Article 2, this Lease
shall not be void or voidable, nor shall Lessor be liable to Lessee for any
loss
or damage resulting therefrom, but in that event, the Term shall be for the
full
term as specified above to commence from and after the date Lessor shall have
delivered possession of the Premises to Lessee or from the date Lessor would
have delivered possession of the Premises to Lessee but for Lessee’s failure to
timely supply to Lessor such drawings and/or information required by Exhibit
C
or for any other reason attributable to Lessee (herein the “Commencement Date”)
and to expire midnight of the day immediately preceding Term anniversary of
the
Commencement Date, and if requested by Lessor, Lessor and Lessee shall, ratify
and confirm said Commencement and Expiration Dates by completing and signing
Exhibit G attached hereto and made a part hereof.
44. NOTICES:
Any
notice by either party to the other shall be in writing and shall be deemed
to
have been duly given only if (i) delivered personally or (ii) sent by registered
mail or certified mail return receipt requested in a postage paid envelope
addressed or (iii) sent by nationally recognized overnight delivery service,
if
to Lessee, at the above described Building; if to Lessor, at Lessor’s address as
set forth above; or, to either at such other address as Lessee or Lessor,
respectively, may designate in writing. Notice shall be deemed to have been
duly
given, if delivered personally, on delivery thereof, if mailed, upon the tenth
(10th) day after the mailing thereof or if sent by overnight delivery service,
the next business day.
45. ACCORD
AND SATISFACTION:
No
payment by Lessee or receipt by Lessor of a lesser amount than the rent and
additional charges payable hereunder shall be deemed to be other than a payment
on account of the earliest stipulated Fixed Basic Rent and Additional Rent,
nor
shall any endorsement or statement on any check or any letter accompanying
any
check or payment for Fixed Basic Rent or Additional Rent be deemed an accord
and
satisfaction, and Lessor may accept such check or payment without prejudice
to
Lessor’s right to recover the balance of such Fixed Basic Rent and Additional
Rent or pursue any other remedy provided herein or by law.
46. EFFECT
OF WAIVERS:
No
failure by Lessor to insist upon the strict performance of any covenant,
agreement, term or condition of this Lease, or to exercise any right or remedy
consequent upon a breach thereof, and no acceptance of full or partial rent
during the continuance of any such breach, shall constitute a waiver of any
such
breach or of such covenant, agreement, term or condition. No consent, or waiver,
express or implied, by Lessor to or of any breach of any covenant, condition
or
duty of Lessee shall be construed as a consent or waiver to or of any other
breach of the same or any other covenant, condition or duty, unless in writing
signed by Lessor.
47. LEASE
CONDITION:
This
Lease is expressly conditioned upon Lessor receiving the consent and approval
of
Lessor’s mortgagee to its term and provisions not later than thirty (30) days
after its execution by Lessee, and delivery to Lessor. Should said consent
not
be received within the aforesaid time period, Lessor may, at Lessor’s sole
option, cancel this Lease and return the first month’s Fixed Basic Rent and
Security Deposit to Lessee, which Lessee has deposited with Lessor upon
execution of this Lease, and thereafter the parties shall have no further
obligations to each other with respect to this Lease.
24
48. MORTGAGEE’S
NOTICE AND OPPORTUNITY TO CURE:
Lessee
agrees to give any mortgagees and/or trust deed holders, by registered mail,
a
copy of any notice of default served upon Lessor, provided that, prior to such
notice, Lessee has been notified in writing (by way of notice of assignment
of
rents and leases or otherwise) of the address of such mortgagees and/or trust
deed holders. Lessee further agrees that, if Lessor shall have failed to cure
such default within the time provided for in this Lease, then the mortgagees
and/or trust deed holders shall have an additional thirty (30) days within
which
to cure such default, or if such default cannot be cured within that time,
then
such additional time as may be necessary, if within such thirty (30) days,
any
mortgagee and/or trust deed holder has commenced and is diligently pursuing
the
remedies necessary to cure such default (including but not limited to
commencement of foreclosure proceedings if necessary to effect such cure),
in
which event this Lease shall not be terminated while such remedies are being
so
diligently pursued.
49. LESSOR’S
RESERVED RIGHT:
Lessor
and Lessee acknowledge that the Premises are in a Building which is not open
to
the general public. Access to the Building is restricted to Lessor, Lessee,
their agents, employees and contractors and to their invited visitors. In the
event of a labor dispute including a strike, picketing, informational or
associational activities directed at Lessee or any other tenant, Lessor reserves
the right unilaterally to alter Lessee’s ingress and egress to the Building or
make any change in operating conditions to restrict pedestrian, vehicular or
delivery ingress and egress to a particular location.
50. CORPORATE
AUTHORITY:
If
Lessee
is a corporation, Lessee represents and warrants that this Lease has been duly
authorized and approved by the corporation’s Board of Directors. The undersigned
officers and representatives of the corporation represent and warrant that
they
are officers of the corporation with authority to execute this Lease on behalf
of the corporation, and within fifteen (15) days of execution hereof, Lessee
will provide Lessor with a corporate resolution confirming the
aforesaid.
51. AFTER-HOURS
USE:
Lessee
shall be entitled to make use of said Standard Electric Service and HVAC beyond
the Building Hours, at Lessee’s sole cost and expense, provided Lessee shall
notify the Lessor by 3:00 p.m. on the day that Lessee shall require said
overtime use if said overtime use is required on any weekday, and by 3:00 p.m.
on Friday for Saturday and/or Sunday overtime use. It is understood and agreed
that Lessee shall pay the sum of FORTY-FIVE AND 00/100 DOLLARS ($45.00) per
hour
per zone for air-conditioning service and THIRTY AND 00/100 DOLLARS ($30.00)
per
hour per zone for heating services, plus such additional percentage increase
of
the aforesaid hourly sum computed by measuring the percentage increase between
the rate in effect (including fuel surcharges or adjustments) during the month
for which such overtime use is requested and the Base Rate. The Base Rate for
purposes hereof shall be the average of the rates in effect (including
surcharges and /or adjustments) during Calendar Year 2002.
In
no
event shall the Lessee pay less than the sum of FORTY-FIVE AND 00/100 DOLLARS
($45.00) per hour per zone for such overtime air-conditioning service or less
than THIRTY AND 00/100 DOLLARS ($30.00) per hour per zone for such overtime
heating service.
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52. LESSEE’S
EXPANSION/RELOCATION:
The
Lessor, in its sole discretion, shall have the right from time to time to change
the location of the Premises to other space (the “Substituted Leased Premises”)
within the Building, subject to the terms and conditions set forth
below.
a.
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The
Substituted Leased Premises shall contain a minimum floor area of
approximately the same number of square feet as are contained in
the
Premises; and the square footage of any Common Facilities attributable
to
the Substituted Leased Premises shall be approximately the same as
that of
the Common Facilities attributable to the
Premises.
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b.
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If
the total square footage comprised by the Substituted Leased Premises
and
its attributable Common Facilities exceed the total of the Premises
and
its attributable Common Facilities, the Lessee shall not be required
to
pay any increase in the Fixed Basic Rent and Lessee’s Percentage shall not
be increased. If, however, such total square footage shall be less,
Lessee’s Fixed Basic Rent and Lessee’s Percentage shall be decreased
proportionately.
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c.
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The
Lessor shall give the Lessee not less than forty-five (45) days prior
notice of Lessor’s decision to relocate the Lessee; and the Lessee agrees
that no later than forty-five (45) days from the date of its receipt
of
such notice it shall relocate to the Substituted Leased
Premises.
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d.
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The
Lessor shall bear and pay for the cost and expense of any such relocation,
provided, however, that the Lessee shall not be entitled to any
compensation for damages for any interference with or interruption
of its
business during or resulting from such relocation. The Lessor shall
make
reasonable efforts to minimize such
interference.
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e.
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In
connection with any such relocation, the Lessor shall, at its own
cost and
expense, furnish and install in (or, if practicable, relocate to)
the
Substituted Leased Premises all walls, partitions, floors, floor
coverings, ceilings, fixtures, wiring and plumbing, if any, (as
distinguished from trade fixtures, equipment, furniture, furnishings
and
other personal property belonging to Lessee) required for the Lessee’s
proper use and occupancy thereof, all of which items shall be comparable
in quality to those situated in the
Premises.
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f.
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The
payments of new monthly minimum rent shall commence on the earlier
ten
(10) days after Lessor has completed the physical relocation and
installation of permanent improvements in the Substituted Leased
Premises
or the date that Lessee first opens for business in the Substituted
Leased
Premises.
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x.
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Xxxxxx
and Lessee shall promptly execute an amendment to this Lease reciting
the
relocation of the Premises and any changes in the monthly minimum
rent
payable hereunder.
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53. BUILDING
PERMIT:
This
Lease is expressly conditioned upon Lessor obtaining a building permit from
the
appropriate government official for Lessee’s Premises. Lessor hereby agrees to
make application to said government official within five (5) days following
the
execution of the construction drawings for the Premises. As used herein,
construction drawings shall mean the final plans and specifications required
pursuant to Article 27(b).
EACH
PARTY AGREES that it will not raise or assert as a defense to any obligation
under the Lease or this Agreement or make any claim that the Lease or this
Agreement is invalid or unenforceable due to any failure of this document to
comply with ministerial requirements including, but not limited to, requirements
for corporate seals, attestations, witnesses, notarizations, or other similar
requirements, and each party hereby waives the right to assert any such defense
or make any claim of invalidity or unenforceability due to any of the
foregoing.
26
IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
the
day and year first above written.
LESSOR:
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LESSEE:
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PRINCETON
OVERLOOK REALTY L.L.C.
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SCOPUS
NETWORK TECHNOLOGIES, INC.
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By: Xxxx-Xxxx
Realty, L.P., member
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By: Xxxx-Xxxx
Realty Corporation, its general partner
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By: /s/
Xxxxxxx X.
Xxxxxx
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By: /s/
Xxxxx
Xxxxxx
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Xxxxxxx X. Xxxxxx
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Name:
Xxxxx Xxxxxx
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Vice President - Leasing
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Title:
President
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27