STANDARD FORM OF OFFICE LEASE
AGREEMENT OF LEASE, made as of this 2nd day of April 1993, between 5 XXXXXX
ASSOCIATES, a New Jersey limited partnership, having an office c/o Bellemead
Management Co., Inc., 280 Corporate Center, 0 Xxxxxx Xxxx Xxxx, Xxxxx Xxxxx,
Xxxxxxxx, Xxx Xxxxxx 00000 (the "Owner" or "Landlord"), and NEW JERSEY MORTGAGE
AND INVESTMENT CORP., a New Jersey corporation, having an address at 00 Xxxx
Xxxxx Xxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx (the "Tenant").
WITNESSETH: Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord a portion of the first (1st) floor of a certain office building located
at 0 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx (the "Premises" or "Demised
Premises" or "demised premises"), more particularly shown upon the Rental Plan
annexed hereto and made a part hereof as Exhibit "A", for a term commencing and
terminating as set forth in Article 37 of the Rider to Lease.
The annual rental rate ("Minimum Rent") for the Premises shall be ONE
HUNDRED SEVENTY FIVE THOUSAND FOUR HUNDRED FIFTY ONE AND 25/100. DOLLARS
($175,451.25), payable in advance on the first day of each calendar month in
equal monthly installments of FOURTEEN THOUSAND SIX HUNDRED TWENTY AND 94/100
DOLLARS ($14,620.94) during the term of this Lease.
Installments of Minimum Rent payable hereunder shall be paid at the office
of Landlord or at such other place as Landlord may designate from time to time
by written notice to Tenant hereunder, without setoff or deduction whatsoever
except that Tenant shall pay security upon the execution hereof.
In the event that, at the commencement of the term of this lease, or
thereafter. Tenant shall be in default in the payment of rent to Owner pursuant
to the terms of another lease with Owner or with Owner's predecessor in
interest, Owner may at Owner's option and without notice to Tenant add the
amount of such arrears to any monthly installment of rent payable hereunder and
the same shall be payable to owner as additional rent.
The parties hereto, for themselves, their heirs, distributees, executors,
administrators, legal representatives, successors and assigns, hereby convenant
as follows:
Rent 1. Tenant shall pay the rent as above and as
hereinafter provided.
Occupany 2. Tenant shall use and occupy demised premises for
general excutive and administrative offices only and for
no other purpose.
Tenant 3. Tenant shall make no changes in or to the
Alterations demised premises of any nature without Owner's prior
written consent. Subject to the prior written consent of
Owner, and to the provisions of this article, Tenant at Tenant's expense, may
make alterations, installations, additions or improvements which are
non-structural and which do not affect utility services or plumbing and
electrical lines, in or to the interior of the demised premises by using
contractors or mechanics first approved by Owner. Tenant shall, before making
any alterations, additions, installations or improvements, at its expense,
obtain all permits, approvals and certificates required by any governmental or
quasi-governmental bodies and (upon completion) certificates of final approval
thereof and shall deliver promptly duplicates of all such permits, approvals
and certificates to Owner and Tenant agrees to carry and will cause Tenant's
contractors and sub-contractors to carry such xxxxxxx'x compensation, general
liability, personal and property damage insurance as Owner may require. If any
mechanic's lien is filed against the demised premises, or the building of which
the same forms a part, for work claimed to have been done for, or materials
furnished to, Tenant, whether or not done pursuant to this article, the same
shall be discharged by Tenant within thirty days thereafter, at Tenant's
expense, by filing the bond required by law. All fixtures and all paneling,
cables, telephones wires, partitions, railings and like installations, installed
in the premises at any time, either by Tenant or by Owner in Tenant's behalf,
shall, upon installation, become the property of Owner and shall remain upon and
be surrendered with the demised premises unless Owner, by notice to Tenant no
later than twenty days prior to the date fixed as the termination of this lease,
elects to relinquish Owner's right thereto and to have them removed by Tenant,
in which event the same shall be removed from the premises by Tenant prior to
the expiration of the lease, at Tenant's expense. Nothing in this Article shall
be construed to give Owner title to or to prevent Tenant's removal of trade
fixtures, moveable office furniture and equipment, but upon removal of any such
from the premises or upon removal of other installations as may be required by
Owner, Tenant shall immediately and at its expense, repair and restore the
premises to the condition existing prior to installation and repair any damage
to the demised premises or the building due to such removal. All property
permitted or required to be removed, by Tenant at the end of the term remaining
in the premises after Tenant's removal shall be deemed abandoned and may, at the
election of Owner, either be retained as Owner's property or may be removed from
the premises by Owner, at Tenant's expense.
Maintenance 4. Tenant shall, throughout the term of this lease,
and take good care of the demised premises and the
Repairs fixtures and appurtenances therein. Tenant shall be
responsible for all damage or injury to the demised
premises or any other part of the building and the systems and equipment
thereof, whether requiring structural or nonstructural repairs caused by or
resulting from carelessness, omission, neglect or improper conduct of Tenant,
Tenant's subtenants, agents, employees, invitees or licensees, or which arise
out of any work, labor, service or equipment done for or supplied to Tenant or
any subtenant or arising out of the installation, use or operation of the
property or equipment of Tenant or any subtenant. In connection with the
immediately preceding sentence, Tenant shall not be responsible for damages or
injury adjudged to have been caused solely by the negligence or willful
misconduct of Landlord, its agents or employees. Tenant shall also repair all
damage to the building and the demised premises caused by the moving of
Tenant's fixtures, furniture and equipment. Tenant shall promptly make, at
Tenant's expense, all repairs in and to the demised premises for which Tenant is
responsible, using only the contractor for the trade or trades in question,
selected from a list of at least two contractors per trade submitted by Owner.
Any other repairs in or to the building or the facilities and systems thereof
for which Tenant is responsible shall be performed by Owner at the Tenant's
expense. Owner shall maintain in good working order and repair the exterior and
the structural portions of the building, including the structural portions of
its demised premises, and the public portions of the building interior and the
building plumbing, electrical, heating and ventilating systems (to the extent
such systems presently exist) serving the demised premises. Tenant agrees to
give prompt notice of any defective condition in the premises for which Owner
may be responsible hereunder. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to busineas arising from
Owner or others making repairs, alterations, additions or improvements in or to
any portion of the building or the demised premises or in and to the fixtures,
appurtenances or equipment thereof. It is specifically agreed that Tenant shall
not be entitled to any setoff or reduction of rent by reason of any failure of
Owner to comply with the covenants of this or any other article of this Lease.
Tenant agrees that Tenant's sole remedy at law in such instance will be by way
of an action for damages for breach of contract. The provisions of this Article
4 shall not apply in the case of fire or other casualty which are dealt with in
Article 9 hereof.
Window 5. Tenant will not clean nor require, permit,
Cleaning suffer or allow any window in the demised premises to
be cleaned from the outside.
Requirements 6. Prior to the commencement of the lease term,
of Law, if Tenant is then in possession, and at all times
Fire Insurance, thereafter, Tenant, at Tenant's sole cost and expense,
Floor Loads shall promptly comply with all present and future laws,
orders and regulations of all state, federal, municipal
and local governments, departments, commissions and boards and any direction of
any public officer pursuant to law, and all orders, rules and regulations of any
body which shall impose any violation, order or duty upon Owner or Tenant with
respect to the demised premises, whether or not arising out of Tenant's use or
manner of use thereof, (including Tenant's permitted use) or, with respect to
the building if arising out of Tenant's use or manner of use of the premises or
the building (including the use permitted under the lease). Nothing herein shall
require Tenant to make structural repairs or alterations unless Tenant has, by
its manner of use of the demised premises or method of operation therein,
violated any such laws, ordinances, orders, rules, regulations or requirements
with respect thereto. Tenant may, after securing Owner to Owner's satisfaction
against all damages, interest, penalties and expenses, including, but not
limited to, reasonable attorney's fees, by cash deposit or by surely bond in an
amount and in a company satisfactory to Owner, contest and appeal any such
1aws ordinances, orders, rules, regulations or requirements provided same is
done with all reasonable promptness and provided such appeal shall not subject
Owner to prosecution for a criminal offense or constitute a default under any
lease or mortgage under which Owner may be obligated, or cause the demised
premises or any part thereof to be condemned or vacated. Tenant shall not do or
permit any act or thing to be done in or to the demised premises which is
contrary to law, or which will invalidate or be in conflict with public
liability, fire or other policies of insurance at any time carried by or for the
benefit of Owner with respect to the demised premises or the building of which
the demised premises form a part, or which shall or might subject Owner to any
liability or responsibility to any person or for property damage. Tenant shall
not keep anything in the demised premises except as now or hereafter permitted
by the Fire Department, Board of Fire Underwriters, Fire Insurance Rating
Organization or other authority having jurisdiction, and then only in such
manner and such quantity so as not to increase the rate for fire insurance
applicable to the building, nor use the premises in a manner which will increase
the insurance rate for the building or any property located therein over that in
effect prior to the commencement of Tenant's occupancy. Tenant shall pay all
costs, expenses, fines, penalties, or damages, which may be imposed upon Owner
by reason of Tenant's failure to comply with the provisions of this article and
if by reason of such failure the fire insurance rate shall, at the beginning of
this lease or at any time thereafter, be higher than it otherwise would be, then
Tenant shall reimburse Owner, as additional rent hereunder, for that portion of
all fire insurance premiums thereafter paid by Owner which shall have been
charged because of such failure by Tenant. In any action or proceeding wherein
Owner and Tenant are parties, a schedule or "make-up" of rate for the building
or demised premises issued by any body making fire insurance rates applicable to
said premises shall be conclusive evidence of the facts therein stated and of
the several items and charges in the fire insurance rates then applicable to
said premises. Tenant shall not place a load upon any floor of the demised
premises exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Owner 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 Tenant, at Tenant's
expense, in settings sufficient, in Owner's judgement, to absorb and prevent
vibration, noise and annoyance.
Subordination 7.(a) This lease is subject and subordinate to all
ground or underlying leases and to all mortages which
may now or hereafter affect such leases or the real property of which demised
premises are a part and to all renewals, modifications, consolidatons,
replacements and extensions of any such underlying leases and mortgages. This
clause shall be self-operative and no further instrument of subdination shall be
required by any ground or underlying lessor or by any mortgagee, affecting any
lease or the real property of which the demised premises are a part. In
confirmation of such subordination, Tenant shall execute promptly any
certificate that Owner may request.
(b) With respect to all mortgages which may as of the
date hereof affect this Lease or the building of which the demised premises form
a part, Owner agrees that upon Tenant's written request received by Owner with
ten (10) days after the date hereof (time being of the essence), Owner shall
endeavor to use reasonable efforts (at no cost or expense to Owner) to obtain a
non-disturbance and attornment agreement in recordable form from the holder of
any such mortgage, providing in substance that so long an Tenant shall have
entered into possession and occupancy of the demised premises and commenced
payment of Minimum Rent and additional rent due hereunder, and so long as Tenant
has not breached its obligations for the timely payment of Minimum Rent and
additional rent and in the performance of the other terms, covenants and
conditions to be performed or observed on Tenant's part under the Lease,
Tenant's possession of the demised premises will not be disturbed during the
term hereof, notwithstanding the foreclosure of any such mortgage, and Tenant
will be named as a party defendant in any foreclosure proceedings brought for
the recovery of possession, it being hereby covenanted and agreed by Tenant that
the holder of any such mortgage, or anyone claiming by, through or under said
holder shall not be (i) liable for any act or omission for any prior landlord
(including Owner), or (ii) subject to any offsets or defenses which Tenant might
have against any prior landlord (including Owner) or (iii) bound by any Minimum
Rent, Adjusted Minimum Rent or additional rent or other charges which Tenant
might have paid for more than the current month to a prior landlord (including
Owner), or (iv) bound by any modifications of this Lease made without the
written consent of such mortgages.
Property- 8. Owner or its agents shall not be liable for any
Loss, Damage, damage to property of Tenant or of others entrusted
Reimbursement, to employees of the building, nor for lose of or
Indemnity damage to any property of Tenant by theft or
otherwise, nor for any injury or damage to persons or
property resulting from any cause of whatsoever nature, unless caused by or due
to the negligence of Owner, its agents, servants or employeees. Owner or its
agents will not be liable for any such damage caused by other tenants or persons
in, upon or about said building or caused by operations in construction of any
private, public or quasi public work. If at any time any windows of the demised
premises are temporarily closed, darkened or bricked up (or permanently closed,
darkened or bricked up, if required by law) for any reason whatsoever including,
but not limited to Owner's own acts, Owner shall not be liable for any damage
Tenant may sustain thereby and Tenant shall not be entitled to any compensation
therefor nor abatement or diminution of rent nor shall the same release Tenant
from its obligations hereunder nor constitute an eviction. Tenant shall
indemnify and save harmless Owner against and from all liabilities, obligations,
damages, penalties, claims, costs and expenses for which Owner shall not be
reimbursed by insurance, including reasonable attorneys fees, paid, suffered or
incurred as a result of any breach by Tenant, Tenant's agents, contractors,
employees, invitees, or licensees, of any covenant or condition of this lease,
or the carelessness, negligence or improper conduct of the Tenant, Tenant's
agents, contractors, employees, invitees or licensees. Tenant's liability under
this lease extends to the acts and omissions of any sub-tenant, and any agent,
contractor, employee, invitee or licensee of any sub-tenant. In case any action
or proceeding is brought against Owner by reason of any such claim, Tenant, upon
written notice from Owner, will, at Tenant's expense, resist or defend such
action or proceeding by counsel approved by Owner in writing, such approval not
to be unreasonably withheld.
Destrucion, 9. (a) If the demised premises or any part thereof
Fire and Other shall be damaged by fire or other casualty, Tenant
Casualty shall give immediate notice thereof to Owner and this
lease shall continue in full force and effect except as
hereinafter set forth. (b) If the demised premises are partially damaged or
rendered partially unusable by fire or other casualty, the damages thereto shall
be repaired by and at the expense of Owner and the rent, until such repair shall
be substantially completed, shall be apportioned from the day following the
casualty according to the part of the premises which is usable. (c) If the
demised premises are totally damaged or rendered wholly unusable by fire or
other casualty, then the rent shall be proportionately paid up to the time of
the casualty and thenceforth shall cease until the date when the premises shall
have been repaired and restored by Owner, subject to Owner's right to elect not
to restore the same as hereinafter provided. (d) If the demised premises are
rendered wholly unusable or (whether or not the demised premises are damaged in
whole or in part) if the building shall be so damaged that Owner shall decide to
demolish it or to rebuild it, then, in any of such events, Owner may elect to
terminate this lease by
written notice to Tenant, given within 90 days after such fire or casualty,
specifying a date for the expiration of the lease, which date shall not be more
than 60 days after the giving of such notice, and upon the date specified in
such notice the term of this lease shall expire as fully and completely as if
such date were the date set forth above for the termination of this lease and
Tenant shall forthwith quit, surrender and vacate the premises without prejudice
however, to Landlord's rights and remedies against Tenant under the lease
provisions in effect prior to such termination, and any rent owing shall be paid
up to such date and any payments of rent made by Tenant which were on account of
any period subsequent to such date shall be returned to Tenant. Unless Owner
shall serve a termination notice as provided for herein, Owner shall make the
repairs and restorations under the conditions of (b) and (c) hereof, with all
resonable expedition, subject to delays due to adjustment of insurance claims,
labor troubles and causes beyond Owner's resonable control. In the event (i)
Landlord reasonably determines that 40% or more of the demised premises shall be
damaged by fire or other casualty during the term and Tenant shall be unable to
use 40% or more of the demised premises as a result of such damage, and (ii)
Owner shall not exercise the right to terminate this Lease and shall,
accordingly, be obligated to repair any such damage pursuant to the provisions
hereof, and (iii) Owner shall have failed to repair such damage within nine (9)
months after the date of such fire or other casualty, as such nine (9) month
period shall be extended by the number of days that Owner is delayed in
completing such restoration by any cause or factor beyond Owner's reasonable
control, including, but no limited to, Tenant's failure to cooperate with Owner,
strikes or other labor disputes, accidents, orders or regulations of any
Federal, State, County or Municipal Authority, delays due to adjustment of
insurance claims, lack of availability of materials, parts or utility services,
acts of God, fire, earthquake, floods, explosion, action of the elements, war,
hostilities, invasion, insurrection, riot, mob violence, sabotage, or by reason
of any other cause, whether similar or not to the foregoing, that is beyond the
reasonable control of Owner, (such nine (9) month period as so extended is
referred to as the "Restoration Period"), then, in such event, Tenant shall have
a one time option to give the Owner, within ten (10) days next following the
expiration of the Restoration Period, time being of the essence, a thirty (30)
day notice of termination of this Lease; if by the expiration of said thirty
(30) day period Owner shall have failed to repair such damage, then, upon the
expiration of said thirty (30) days, this Lease and the term thereunder shall
end and expire as fully and completely as if the expiration of such thirty (30)
day period were the day herein definitely fixed for the end and expiration of
this Lesse and the term thereof and Tenant shall then quit and surrender the
demised premises to Owner but Tenant shall remain liable as provided in this
Lease. Failure of Tenant to timely deliver a thirty (30) day notice of
termination shall be conclusively deemed to be an express election by Tenant to
waive Tenant's right to terminate the Lease as provided in this Article. After
any such casualty, Tenant shall cooperate with Owner's restoration by removing
from the premises as promptly as reasonably possible, all of Tenant's
salvageable inventory and movable equipment, furniture, and other property.
Tenant's liability for rent shall resume five (5) days after written notice from
Owner that the premises are substantially ready for Tenant's occupancy. (e)
Nothing contained hereinabove shall relieve Tenant from liability that may exist
as a result of damage from fire or other casualty. Notwithstanding the
foregoing, each party shall look first to any insurance in its favor before
making any claim against the other party for recovery for loss or damage
resulting from fire or other casualty, and to the extent that such insurance is
in force and collectible and to the extent permitted by law, Owner and Tenant
each hereby releases and waives all right of recovery against the other or any
one claiming through or under each of them by way of subrogation or otherwise.
The foregoing release and waiver shall be in force only if both releasors'
insurance policies contain a clause providing that such a release or waiver
shall not invalidate the insurance. If, and to the extent, that such waiver can
be obtained only by the payment of additional premiums, then the party
benefiting from the waiver shall pay such premium within ten days after written
demand or shall be deemed to have agreed that the party obtaining insurance
coverage shall be free of any further obligation under the provisions hereof
with respect to waiver of subrogation. Tenant acknowledges that Owner will not
carry insurance on Tenant's furniture and/or furnishings or any fixtures or
equipment, improvements, or appurtenances removable by Tenant and agrees that
Owner will not be obligated to repair any damage thereto or replace the same.
Eminent 10. If the whole or any part of the demised
Domain premises shall be acquired or condemned by Eminent
Domain for any public or quasi public use or purpose,
then and in that event, the term of this lease shall cause and terminate from
the date of title vesting in such proceeding and Tenant shall have no claim for
the value of any unexpired term or said lease and assigns to Owner, Tenant's
entire interest in any such award.
Assignment, 11. Tenant, for itself, its heirs, distributes,
Mortgage, Etc. executors, administrators, legal representatives,
successors and assigns, expressly covenants that it
shall not assign, mortgage or encumber this agreement, nor underlet, or suffer
or permit the demised premises or any part thereof to be used by others, without
the prior written consent of Owner in each instance. Transfer of the majority of
the stock of a corporate Tenant shall be deemed an assigiment.
If this lease be assigned, of if the demised premises or any part thereof be
underlet or occupied by anybody other than Tenant, Owner may, after default by
Tenant, collect rent from the assignee, under-tenant or occupant, and apply the
net amount collected to the rent herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of this
convenant, or the acceptance of the assignee, under-tenant or occupant as
tenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant herein contained. The consent by Owner to an
assignment or underletting shall not in any wise be construed to relieve Tenant
from obtaining the express consent in writing of Owner to any further assignment
or underletting.
Electric 12. Tenant covenants and agrees that at all times
Current its use of electric current shall not exceed the
capacity of existing feeders to the building or the
risers or wiring installation and Tenant may not use any electrical equipment
which, in Owner's opinion, reasonably exercised, will overload such
installations or interfere with the use thereof by other tenants of the
building. The change at any time of the character of electric service shall in
no wise make owner liable or responsible to Tenant, for any loss, damages or
expenses which Tenant may sustain.
Access to 13. Owner or Owner's agents shall have the
Premises right (but shall not be obligated) to enter the demised
premises in any emergency at any thime, and, at other
reasonable times, to examine the same and to make such repairs, replacements and
improvements as Owner may deem necessary and reasonably desirable to the
demised premises or to any other portion of the building or which Owner may
elect to perform. Tenant shall permit Owner to use and maintain and replace
pipes and conduits in and through the demised premises and to erect new pipes
and conduits therein provided they are concealed within the walls, floor, or
ceiling. Owner may, during the progress of any work in the demised premises,
take all necessary materials and equipment into said premises without the same
constituting an eviction nor shall the Tenant be entitled to any abatement of
rent while such work is in progress nor to any damages by reason of loss or
interruption of business or otherwise. Throughout the term hereof Owner shall
have the right to enter the demised premises at reasonable hours for the
purpose of showing the same to prospective purchasers or mortgagees of the
building, and during the last six months of the term for the purpose of showing
the same to prospective tenants. If Tenant is not present to open and permit an
entry into the premises, Owner or Owner's agents may enter the same whenever
such entry may be necessary or permissible by master key or forcibly and
provided reasonable care is exercised to safeguard Tenant's property, such entry
shall not render Owner or its agents liable therefor, nor in any event shall the
obligations of Tenant hereunder be affected. If during the last month of the
term Tenant shall have removed all or substantially all of Tenant's property
therefrom, Owner may immediately enter, alter, renovate or redecorate the
demised premises without limitation or abatement of rent, or incurring liability
to Tenant for any compensation and such act shall have no effect on this lease
or Tenant's obligations hereunder.
Smoking 14. Landlord reserves the right to establish a no
Policy smoking policy in some or all common areas of the
building including but not limited to elevators.
lobbies, atriums, stairwells, corridors and restrooms.
Occupancy 15. Tenant will not at any time use or occupy the
demised premises in violation of the certificate of
occupancy issued for the budding of which the demised premises are a part.
Tenant has inspected the premises and accepts them as is, subject to the rider
annexed hereto with respect to Owner's work, if any. In any event, Owner makes
no representation as to the condition of the premises and Tenant agrees to
accept the same subject to violations, whether or not of record.
Bankruptcy 16. (a) Anything elsewhere in this lease to the
contrary notwithstanding, this lease may be cancelled
by Owner by the sending of a written notice to Tenant within a reasonable time
after the happening of any one or more of the following events: (1) the
commencement of a case in bankruptcy or under the laws of any state naming
Tenant as the debtor, or (2) the making by Tenant of an assignment or any other
arrangement for the benefit of creditors under any state statute. Neither Tenant
nor any person claiming through or under Tenant, or by reason of any statute or
order of court, shall thereafter be entitled to possession of the premises
demised but shall forthwith quit and surrender the premises. If this lease shall
be assigned in accordance with its terms, the provisions of this Article 16
shall be applicable only to the party then owning Tenant's interest in this
lease.
(b) it is stipulated and agreed that in the event of the
termination of this lease pursuant to (a) hereof, Owner shall forthwith,
notwithstanding any other provisions of this lease to the contrary, be entitled
to recover from Tenant as and for liquidated damages an amount equal to the
difference between the rent reserved hereunder for the unexpired portion of the
term demised and the fair and reasonable rental value of the demised premises
for the same period. In the computation of such damages the difference between
any installment of rent becoming due
hereunder after the date of termination and the fair and reasonable rental value
of the demised premises for the period for which such installment was payable
shall be discounted to the date of termination at the rate of four percent (4%)
per annum. If such premises or any part thereof be relet by the Owner for the
unexpired term of said lease, or any part thereof, before presentation of proof
of such liquidated damages to any court, commission or tribunal, the amount of
rent reserved upon such reletting shall be deemed to be the fair and reasonable
rental value for the part or this whole of the premises so re-let during the
term of the re-letting. Nothing herein contained shall limit or prejudice the
right of the Owner to prove for and obtain as liquidated damages by reason of
such termination, an amount equal to the maximum allowed by any statute or rule
of law in effect at the time when, and governing the proceedings in which, such
damages are to be proved, whether or not such amount be greater, equal to, or
less than the amount of the difference referred to above.
Default 17. (1) If Tenant defaults in fulfilling any of the
covenants of this lease other than the covenants for
the payment of rent or additional rent; or if the demised premises becomes
vacant or deserted; or if any execution or attachment shall be issued against
Tenant or any of Tenant's property whereupon the demised premises shall be taken
or occupied by someone other than Tenant; or if this lease be rejected under
Section 235 of Title 11 of the U.S. Code (bankruptcy code); or if Tenant shall
fail to move into or take possession of the premises within fifteen (15) days
after the commencement of the term of this lease, then, in any one or more of
such events, upon Owner serving a written five (5) days notice upon Tenant
specifying the nature of said default and upon the expiration of said five (5)
days, if Tenant shall have failed to comply with or remedy such default, or if
the said default or omission complained of shall be of a nature that the same
cannot be completely cured or remedied within said five (5) day period, and if
Tenant shall not have diligently commenced curing such default within such five
(5) day period, and shall not thereafter with reasonable diligence and in good
faith, proceed to remedy or cure such default, then Owner may serve a written
three (3) days' notice of cancellation of this lease upon Tenant, and upon the
expiration of said three (3) days this lease and the term thereunder shall end
and expire as fully and completely as if the expiration of such three (3) day
period were the day herein definitely fixed for the end and expiration of this
lease and the term thereof and Tenant shall then quit and surrender the demised
premises to Owner but Tenant shall remain liable as hereinafter provided.
(2) If the notice provided for in (1) hereof shall
have been given, and the term shall expire as aforesaid; or if Tenant shall make
default in the payment of the rent reserved herein or any item of additional
rent herein mentioned or any part of either or in making any other payment
herein required, after giving Tenant a five (5) day written notice of monetary
default and if Tenant shall have failed to cure said monetary default within the
aforementioned five (5) day period, then, and in any of such events Owner may
without notice, re-enter the demised premises either by force or otherwise, and
dispossess Tenant by summary proceedings or otherwise, and the legal
representative of Tenant or other occupant of demised premises and remove their
effects and hold the premises as if this lease had not been made, and Tenant
hereby waives the service of notice of intention to re-enter or to institute
legal proccedings to that end. Tenant expressly agrees that in no event shall
Landlord be required to give Tenant written notice of monetary default more than
two (2) times in any calendar year. If Tenant shall make default hereunder prior
to the date fixed as the commencement of any renewal or extension of this lease,
Owner may cancel and terminate such renewal or extension agreement by written
notice.
Remedies of 18. In case of any such default, re-entry, expiration
Owner and Waiver and/or dispossess by summary of proceedings or
of Redemption otherwise, (a) the rent shall become due thereupon and
be paid up to the time of such re-entry, dispossess
and/or expiration, (b) Owner may re-let the premises or any part or parts
thereof, either in the name of Owner of otherwise, for a term or terms, which
may at Owner's option be less than or exceed the period which would otherwise
have constituted the balance of the term of this lease and may grant concessions
or free rent or charge a higher rental than that in this lease, and/or (c)
Tenant or the legal representatives of Tenant shall also pay Owner an liquidated
damages for the failure of Tenant to observe and perform said Tenant's covenants
herein contained, any deficiency between the rent hereby reserved and/or
covenanted to be paid and the net amount, if any, of the rents collected on
account of the lease or leases of the demised premises for each month of the
period which would otherwise have constituted the balance of the term of this
lease. The failure of Owner to re-let the premises or any part or parts thereof
shall not release or affect Tenant's liability for damages. In computing such
liquidated damages there shall be added to the said deficiency such expenses as
Owner may incur in connection with re-letting, such as legal expenses,
attorneys' fees, brokerage, advertising and for keeping the demised premises in
good order or for preparing the same for re-letting. Any such liquidated damages
shall be paid in monthly installments by Tenant on the rent day specified in
this lease and any suit brought to collect the amount of the deficiency for any
month shall not prejudice in any way the rights of Owner to collect the
deficiency for any subsequent month by a similar proceeding. Owner, in putting
the demised premises in good order or preparing die same for re-rental may, at
Owner's option, make such alterations, repairs, replacements, and/or
decorations in the demised premises as Owner, in Owner's sole judgment,
considers advisable and necessary for the purpose of re-letting the demised
premises, and the making of such alterations, repairs, replacements, and/or
decorations shall not operate or be construed to release Tenant from liability
hereunder as aforesaid. Owner shall in no event be liable in any way whatsoever
for failure to re-let the demised premises, or in the event that the demised
premises are re-let, for failure to collect the rent thereof under such
re-letting, and in no event shall Tenant be entitled to receive any excess, if
any, of such net rents collected over the sums payable by Tenant to Owner
hereunder. In the event of a breach or threatened breach by Tenant of any of the
covents or provisions hereof, Owner shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity as if re-entry, summary
proceedings and other remedies were not herein provided for. Mention in this
lease of any particular remedy, shall not preclude Owner from any other remedy,
in law or in equity. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future laws in the event of Tenant
being evicted or dispossessed for any cause, or in the event of Owner obtaining
possession of demised premises, by reason of the violation by Tenant of any of
the covenants and conditions of this lease, or otherwise.
Fees and 19. If Tenant shall default in the observance or
Expenses performance of any term or covenant on Tenant's part
to be observed or performed under or by virtue of any
of the terms or provisions in any article of this lease, then, unless otherwise
provided elsewhere in this lease, Owner may immediately or at any time
thereafter and without notice in an emergency or, in a non-emergency, no sooner
than ten (10) days after Owner Gives Tenant written notice, perform the
obligation of Tenant thereunder. If Owner, in connection with the foregoing or
in connection with any default by Tenant in the covenant to pay rent hereunder,
makes any expenditures or incurs any obligations for the payment of money,
including but not limited to attorney's fees, in instituting, prosecuting or
defending any action or proceedings, then Tenant will reimburse Owner for such
sums so paid or obligations incurred with interest and costs. The foregoing
expenses incurred by reason of Tenant's default shall be deemed to be additional
rent hereunder and shall be paid by Tenant to Owner within five (5) days of
rendition of any xxxx or statement to Tenant therefor. If Tenant's lease term
shall have expired at the time of making of such expenditures or incurring of
such obligations, such sums shall be recoverable by Owner as damages.
Building 20. Owner shall have the right at any time without
Alterations the same constituting an eviction and without
and incurring liability to Tenant therefor to change the
Management arrangement and/or location of public entrances,
passageways, doors, doorways, corridors, elevators,
stairs, toilets or other public parts of the building and to change the name,
number or designation by which the building may be known. In so changing the
arrangement and/or location of public entrances, passageways, doors, doorways,
corridors, elevators, stairs, toilets or other public parts of the building,
Landlord shall exercise reasonable efforts to minimize any material
interruption with Tenant's business. There shall be no allowance to Tenant for
diminution of rental value and no liability on the part of Owner by reason of
inconvenience, annoyance or injury to business arising from Owner or other
Tenants making any repairs in the building or any such alterations, additions
and improvements. Furthermore, Tenant shall not have any claim against Owner by
reason of Owner's imposition of such controls of the manner of access to the
building by Tenant's social or business visitors as the Owner may deem necessary
for the security of the building and its occupants.
No Repre- 21. Neither Owner nor Owners's agents have made
sentations by any representations or promises with respect to the
Owner physical condition of the building, the land upon which
it is erected or the demised premises, the rents, leases,
expenses of operation or any other matter or thing affecting or related to the
premises except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this lease. Tenant has inspected the building and
the demised premises and is thoroughly acquainted with their condition and
agrees to take the same "as is" and acknowledges that the taking of possession
of the demised premises by Tenant shall be conclusive evidence that the said
premises and the building of which the same form a part were in good and
satisfactory condition at the time such possession was so taken, except as to
latent defects. All understandings and agreements heretofore made between the
parties hereto are merged in this contract, which alone fully and completely
expresses the agreement between Owner and Tenant and any executory agreement
hereafter made shall be in ineffective to change, modify, discharge or effect an
abandonment of it in whole or in part, unless such executory agreement is in
writing and signed by the party against whom enforcement of the change,
modification, discharge or abandonment is sought.
End of 22. Upon the expiration or other termination of
Term the term of this lease, Tenant shall quit and surrender
to Owner the demised premises, broom clean, in good
order and condition, ordinary wear and damages which Tenant is not required to
repair as provided elsewhere in this lease excepted, and Tenant
shall remove all its property. Tenant's obligation to observe or perform this
covenant shall survive the expiration or other termination of this lease. If
the last day of the term of this Lease or any renewal thereof, falls on Sunday,
this lease shall expire at noon on the preceeding Saturday unless it be a legal
holiday in which case it shall expire at noon on the preceding business day.
Quiet 23. Owner covenants and agrees with Tenant that upon
Enjoyment Tenant paying the rent and additional rent and
observing and performing all the terms, covenants and
conditions, on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the premises hereby demised, subject, nevertheless, to the
terms and conditions of this lease including, but not limited to, Article 31
hereof and to the ground leases, underlying leases and mortgages hereinbefore
mentioned.
Failure 24. If Owner is unable to give possession of the
To Give demised premises on the date of the commencement
Possession of the term hereof, because such building has not been
sufficiently completed to make the premises ready for
occupancy or because of the fact that a certificate of occupancy has not been
procured or for any other reason, Owner shall not be subject to any liability
for failure to give possession on said date and the validity of the lease shall
not be impaired under such circumstances, nor shall the same be construed in
any wise to extend the term of this lease, but the rent payable hereunder shall
be abated (provided Tenant is not responsible for Owner's inability to obtain
possession) until after Owner shall have given Tenant written notice that the
premises are substantially ready for Tenant's occupancy. If permission is given
to Tenant to enter into the possession of the demised premises or to occupy
premises other than the demised premises prior to the date specified as the
commencement of the term of this lease, Tenant covenants and agrees that such
occupancy shall be deemed to be under all the terms, covenants, conditions and
provisions of this lease, except as to the covenant to pay rent. Notwithstanding
anything to the contrary contained in this Article 24, in the event the
Commencement Date (as hereinafter defined) does not occur on the Estimated
Commencement Date (as hereinafter defined) ("Outside Date") as a result of
Landlord's negligent acts or omissions, Landlord shall be obligated to
reimburse Tenant for any out of pocket holdover penalties imposed and collected
by Tenant's current landlord for premises located at 00 Xxxx Xx. Xxxxxxxx
Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx; provided, however, that in no event shall
Landlord's obligation to reimburse Tenant exceed $17,000 per holdover month.
Landlord shall have the right to extend the Outside Date by a period equal to
the aggregate number of days of delay in Substantial Completion (as hereinafter
defined) or in the issuance of a temporary or permanent Certificate of Occupancy
covering the demised premises occasioned by reason of Tenant's failure to
cooperate with Landlord, Tenant's delays in submitting any drawings or
specifications, or in supplying information, or in approving drawings,
specifications or estimates, or in giving authorizations, or by reason of any
"Extra" or "Change Order" designated by Tenant, or by reason of any changes by
Tenant in any designations previously made by Tenant, or by reason of any
similar acts or emissions of Tenant or by reason of any cause or factor beyond
Landlord's reasonable control, including but not limited to, strikes or other
labor disputes, accidents, orders or regulations of any Federal, State, County
or Municipal authority, lack of availability of materials, parts or utility
services, delays due to adjustment of insurance claims, acts of God, fire,
earthquake, floods, explosion, action of the elements, war, hostilities,
invasion, insurrection, riot, mob violence, sabotage or by reason of any other
cause, whether similar or not to the foregoing that is beyond the reasonable
control of Owner. If Tenant shall use or occupy all or any part of the demised
premises, Landlord's obligation to reimburse Tenant for out of pocket holdover
expenses shall no longer be of any force and effect.
No Waiver 25. The failure of Owner to seek redress for
violation of, or to insist upon the strict performance
of any covenant or condition of this lease or of any of the Rules or
Regulations, set forth or hereafter adopted by Owner pursuant to Article 33
hereof, shall not prevent a subsequent act which would have originally
constituted a violation from having all the force and effect of an original
violation. The receipt by Owner of rent with knowledge of the breach of any
covenant of this lease shall not be deemed a waiver of such breach and no
provision of this lease shall be deemed to have been waived by Owner unless such
waiver be in writing signed by Owner. No payment by Tenant or receipt by Owner
of a xxxxxx amount than the monthly rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated rent, nor shall any endorsement
or statement of any check or any letter accompanying any check or payment as
rent be deemed an accord and satisfaction, and Owner may accept such check or
payment without prejudice to Owner's right to recover the balance of such rent
or pursue any other remedy in this lease provided. No act or thing done by Owner
or Owner's agents during the term hereby demised shall be deemed an acceptance
of a surrender of said premises, and no agreement to accept such surrender shall
be valid unless in writing signed by Owner. No employee of Owner or Owner's
agent shall have any power to accept the keys of said premises prior to the
termination of the lease and the delivery of keys to any such agent or employee
shall not operate as a termination of the lease or a surrender of the premises.
Waiver 26. It is mutually agreed by and between Owner and
Trial by Jury Tenant that the respective parties hereto shall and they
hereby do waive trial by jury in any action, proceeding
or counterclaimn brought by either of the parties hereto against the other
(except for personal injury or property damage) on any matters whatsoever
arising out of or in any way connected with this lease, the relationship of
Owner and Tenant, Tenant's use of or occupancy of said premises and any
emergency statutory or any other statutory remedy. It is further mutually agreed
that in the event Owner commences any summary proceeding for possession of the
premises, Tenant will not interpose any counterclaim of whatever nature or
description in any such proceeding including a counterclaim under Article 4.
Inability to 27. This lease and the obligation of Tenant to pay
Perform rent hereunder and perform all of the other covenants
and agreements hereunder on part of Tenant to be
performed shall in no wise be affected, impaired or excused because Owner is
unable to fulfill any of its obligations under this lease or to supply or is
delayed in supplying any service expressly or impliedly to be supplied or is
unable to make, or is delayed in making any repair, additions, alterations or
decorations or is unable to supply or is delayed in supplying any equipment or
fixtures if Owner is prevented or delayed from so doing by reason of strike or
labor troubles or any cause whatsoever including, but not limited to, government
preemption in connection with a National Emergency or by reason of any rule,
order or regulation of any department or subdivision thereof of any government
agency or by reason of the conditions of supply and demand which have been or
are affected by war or other emergency.
Bills and 28. Intentionally Deleted Prior to Execution.
Notices
Services 29. As long as Tenant is not in default under any
Provided by of the covenants of this lease, Owner shall provide:
Owner (a) necessary elevator facilities on business days from
8 a.m. to 6 p.m. and have one elevator subject to call
at all other times; (b) heat to the demised premises when and as required by
law, on business days from 8 a.m. to 7 p.m. and on Saturdays from 9 a.m. to 12
noon; (c) water for ordinary lavatory purposes, but if Tenant uses or consumes
water for any other purposes or in unusual quantities (of which fact Owner shall
be the sole judge), Owner may install a water meter at Tenant's expense which
Tenant shall thereafter maintain at Tenant's expense in good working order and
repair to register such water consumption and Tenant shall pay for water
consumed as shown on said meter as additional rent as and when bills are
rendered; (d) cleaning service for the demised premises on business days at
Owner's expense provided that the same are kept in order by Tenant. If, however,
said premises are to be kept clean by Tenant, it shall be done at Tenant's sole
expense, in a manner satisfactory to Owner and no one other than persons
approved by Owner shall be permitted to enter said premises or the building of
which they are a part for such purpose. Tenant shall pay Owner the cost of
removal of any of Tenant's refuse and rubbish from the building; (e) If the
demised premises are serviced by Owner's air conditioning/cooling and
ventilating system, air conditioning/cooling will be furnished to tenant from
May 15th through September 30th on business days (Mondays through Fridays,
holidays excepted) from 8:00 a.m. to 7:00 p.m. and on Saturdays from 9 a.m. to
12 noon, and ventilation will be furnished on business days during the aforesaid
hours except when air conditioning/cooling is being furnished as aforesaid. If
Tenant requires air conditioning/cooling or ventilation for more extended hours
or on Saturdays, Sundays or on holidays, Owner will furnish the same at Tenant's
expense; (f) Owner reserves the right to stop services of the heating,
elevators, plumbing, air-conditioning, power systems or cleaning or other
services, if any, when necessary by reason of accident or for repairs,
alterations, replacements or improvements necessary or desirable in the judgment
of Owner for as long as may be reasonably required by reason thereof. If the
building of which the demised premises are a part supplies manually operated
elevator service, Owner at any time may substitute automatic control elevator
service and upon ten days' written notice to Tenant, proceed with alterations
necessary therefor without in any wise affecting this Least or the obligation of
Tenant hereunder. The same shall be done with minimum of inconvenience to
Xxxxxxx and Owner shall pursue the alteration with due diligence.
Captions 30. The Captions am inserted only as a matter of
convenience and for reference and in no way define,
limit or describe the scope of this lease nor the intent of any provisions
thereof.
Definitions 31. The term "office", or "offices", wherever used in
this lease, shall not be construed to mean premises used
as a store or stores, for the sale or display, at any time, of goods, wares or
merchandise, of any kind, or an a restaurant, shop, booth, bootblack or other
stand, xxxxxx shop, or for other similar purposes or for manufacturing. The term
"Owner" meant a landlord or lessor, and as used in this lease means only the
owner, or the mortgagee in possession, for the time being of the land and
building (or the owner of a lease of the building or of the land and building)
of which the demised promises form a part, so that in the event of any sale or
sales of said land and building or of said lease, or in the event of a lease of
said building, or of the land and building,
the said Owner shall be and hereby is entirely freed and relieved of all
convenants and obligations of Owner hereunder, and it shall be deemed and
construed without further agreement between the parties or their successors
in interest, or between the parties and the purchaser, at any such sale, or the
said lessee of the building, or of the land and building, that the purchaser
or the lessee of the building has assumed and agreed to carry out any and all
covenants and obligations of Owner, hereunder. The words "re-enter" and
"re-entry" as used in this lease are not restricted to their technical legal
meaning. The term "business days" as used in this lease shall exclude Saturdays
(except such portion thereof as is covered by specific hours in Article 29
hereof), Sundays and all days set forth on Exhibit E.
Adjacent 32. If an excavation shall be made upon land
Excavation- adjacent to the demised premises, or shall be
Shoring authorized to be made, Tenant shall afford to the
person causing or authorized to cause such excavation.
license to enter upon the demised premises for the purpose of doing such work
as said person shall deem necessary to preserve the wall or the building of
which demised premises form a part from injury or damage and to support the
same by proper foundations without any claim for damages or indemnity against
Owner, or diminution or abatement of rent.
Rules and 33. Tenant and Tenant's servants, employees,
Regulations agents, visitors, and licensees shall observe faithfully,
and comply strictly with, the Rules and Regulations and
such other and further reasonable Rules and Regulations as Owner or Owner's
agents may from time to time adopt. Notice of any additional rules or
regulations shall be given in such manner as Owner may elect. In case Tenant
disputes the reasonableness of any additional Rule or Regulation hereafter made
or adopted by Owner or Owner's agents, the parties hereto agree to submit the
question of the reasonableness of such Rule or Regulation for decision to the
Newark office of the American Arbitration Association, whose determination shall
be final and conclusive upon the parties hereto. The right to dispute the
reasonableness of any additional Rule or Regulation upon Tenant's part shall be
deemed waived unless the same shall be asserted by service of a notice, in
writing upon Owner within ten (10) days after the giving of notice thereof.
Nothing in this lease contained shall be construed to impose upon Owner any duty
or obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease, as against any other tenant and Owner shall not
be liable to Tenant for violation of the same by any other tenant, its servants,
employees, agents, visitors or licensees.
Security 34. Tenant shall deposit with Owner on the date
hereof the sum of $14,620.94 as security for the
faithful performance and observance by Tenant of the terms, provisions and
conditions of this lease; it is agreed that in the event Tenant defaults in
respect of any of the terms, provisions and conditions of this lease, including,
but not limiited to, the payment of rent and additional rent, Owner may use,
apply or retain the whole or any part of the security so deposited to the extent
required for the payment of any rent and additional rent or any other sum as to
which Tenant is in default or for any sum which Owner may expend or may be
required to expend by reason of Tenant's default in respect of any of the terms,
covenants and conditions of this lease, including but not limited to, any
damages or deficiency in the re-letting of the premises, whether such damages or
deficiency accrued before or after summary proceedings or other re-entry by
Owner. In the event that Tenant shall fully and faithfully comply with all of
the terms, provisions, covenants and conditions of this lease, the security
shall be returned to Tenant after the date fixed as the end of the Lease and
after delivery of entire possession of the demised premises to Owner. In the
event of a sale of the land and building or leasing of the building, of which
the demised premises form a part, Owner shall have the right to transfer the
security to the vendee or lessee and Owner shall thereupon be released by Tenant
from all liability for the return of such security; and Tenant agrees to look to
the new Owner solely for the return of said security, and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Owner. Tenant further covenants that it will not assign or
encumber or attempt to assign or encumber the monies deposited herein as
security and that neither Owner nor its successors or assigns shall be bound by
any such assignment, encumbrance, attempted assignment or attempted encumbrance.
Estoppel 35. Tenant, at any time, and from time to time,
Certificate upon at least 10 days' prior notice by Owner, shall
execute, acknowledge and deliver to Owner, and/or to
any other person, firm or corporation specified by Owner, a statement certifying
that this Lease is unmodified and in full force and effect (or, if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), stating the dates to which the rent and additional
rent have been paid, and stating whether or not there exists any default by
Owner under this Lease, and, if so, specifying each such default.
Successors and 35A. The covenants, conditions and agreements
Assigns contained in this lease shall bind and inure to the
benefit of Owner and Tenant and their respective heirs,
distributees, executors, administrators, successors, and except as otherwise
provided in this lease, their assigns.
Exhibits 35B. This lease consists of this Printed Portion
containing Articles 1-35C, and each of the following
attached hereto and made a part hereof; (a) Rider to Lease and (b) the following
exhibits: Exhibit A (Rental Plan), Exhibit B (Work Letter), Exhibit C (Legal
Description), Exhibit D (Cleaning Service Rider), Exhibit E (Legal Holidays)
and Exhibit F (Option Space).
Rider 35C. In the event of any inconsistency between the
provisions of the Rider to Lease and those contained
in this Printed Portion to which the Rider to Lease is annexed, the provisions
of the Rider to Lease shall govern and be binding.
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this Lease
on the day and year first written above.
ATTESTED BY: LANDLORD:
5 XXXXXX ASSOCIATES
By: 5 Xxxxxx Farm Corp.,
General Partner
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------- ---------------------------
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Assistant Secretary Vice President
APPLY CORPORATE SEAL HERE
ATTESTED BY: AGENT FOR LANDLORD:
BELLEMEAD MANAGEMENT CO., INC.
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxx X. Xxxxxxxx
--------------------------- ---------------------------
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Assistant Secretary Vice President
APPLY CORPORATE SEAL HERE
ATTESTED BY: TENANT:
NEW JERSEY MORTGAGE AND INVESTMENT
CORP.
/s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
--------------------------- ---------------------------
Name: Xxxx Xxxxx Name: Xxxx Xxxxx
--------------------------- ---------------------------
(Please Print) (Please Print)
Title: Corporate (Assistant) Title: President
Secretary --------------------
(Please Print)
APPLY CORPORATE SEAL HERE
IMPORTANT- PLEASE READ
RULES AND REGULATIONS ATTACHED TO AND
MADE A PART OF THIS LEASE
IN ACCORDANCE WITH ARTICLE 33.
1. The sidewalks, entrances, driveways, passages, courts, elevators,
vestibules, stairways, corridors or halls shall not be obstructed or encumbered
by any Tenant or used for any purpose other than for ingress or egress from the
demised premises and for delivery of merchandise and equipment in a prompt and
efficient manner using elevators and passageways designated for such delivery
by Owner. There shall not be used in any space, or in the public hall of the
building, either by any Tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and sideguards.
2. The water and wash closets and plumbing mixtures shall not be used for
any purposes other than those for which they were designed or constructed and no
sweepings, rubbish, rags, acids or other substances shall be deposited therein.
and the expense of any breakage, stoppage, or damage resulting from the
violation of this rule shall be borne by the Tenant who, or whose c1erks,
agents, employees or visitors, shall have caused it.
3. No carpet, rug or other article shall be hung or shaken out of any
window of the building; and no Tenant shall sweep or throw or permit to be swept
or thrown from the demised premises any dirt or other substances into any of
the corridors or halls, elevators, or out of the doors or windows or stairways
of the building and Tenant shall not use, keep or permit to be used or kept any
foul or noxious gas or substance in the demised premises, or permit or suffer
the demised premises to be occupied or used in a manner offensive or
objectionable to Owner or other occupants of the building by reason of noise,
odors, and/or vibrations, or interfere in any way with other Tenants or those
having business therein, nor shall any animals or birds be kept in or about the
building. Smoking or carrying lighted cigars or cigarettes in the elevators of
the building is prohibited.
4. No awnings or other projections shall be attached to the outside walls
of the building without the prior written consent of Owner.
5. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any Tenant on any part of the outside of the
demised premises or the building or on the inside of the demised premises if
the same is visible from the outside of the premises without the prior written
consent of Owner, except that the name of Tenant may appear on the entrance door
of the premises. In the event of the violation of the foregoing by any Tenant,
Owner may remove same without any liability, and may charge the expense incurred
by such removal to Tenant or Tenants violating this rule. Interior signs on
doors and directory tablet shall be inscribed, painted or affixed for each
Tenant by Owner at the expense of such Tenant, and shall be of a size, color and
style acceptable to Owner.
6. No Tenant shall xxxx, paint, drill into, or in any way deface any part of
the demised premises or the building of which they form a part. No boring,
cutting or stringing of wires shall be permitted, except with the prior written
consent of Owner, and as Owner may direct. No Tenant shall lay linoleum, or
other similar floor covering, so that the same shall come in direct contact
with the floor of the demised premises, and, if linoleum or other similar floor
covering is desired to be used an interlining of builder's deadening felt shall
be first affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly prohibited.
7. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any Tenant, nor shall any changes be made in existing
locks or mechanism thereof. Each Tenant must, upon the termination of his
Tenancy, restore to Owner all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by, such Tenant, and in the event of the
loss of any keys, so furnished, such Tenant shall pay to Owner the cost thereof.
8. Freight, furniture, business equipment, merchandise and bulky matter of
any description shall be delivered to and removed from the premises only on the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by Owner. Owner reserves the right to
inspect all freight to be brought into the building and to exclude from the
building all freight which violates any of these Rules and Regulations of the
lease or which these Rules and Regulations are a part.
9. Canvassing, soliciting and peddling in the building is prohibited and
each Tenant shall cooperate to prevent the same.
10. Owner reserves the right to exclude from the building between the hours
of 6 P.M. and 8 A.M. and at all hours on Sundays, and legal holidays all persons
who do not present a pass to the building signed by Owner. Owner will furnish
passes to persons for whom any Tenant requests same in writing. Each Tenant
shall be responsible for all persons for whom he requests such pass and shall be
liable to Owner for all acts of such persons.
11. Owner shall have the right to prohibit any advertising by any Tenant
which in Owner's opinion, tends to impair the reputation of the building or its
desirability as a building for offices, and upon written notice from Owner,
Tenant shall refrain from or discontinue such advertising.
12. Tenant shall not bring or permit to be brought or kept in or on the
demised premises, any inflammable, combustible or explosive fluid, material,
chemical or substance, or cause or permit any odors of cooking or other
processes, or any unusual or other objectionable odors to permeate in or
emanate from the demised premises.
13. If the building contains central air conditioning and ventilation,
Tenant agrees to keep all windows closed at all times and to abide by all rules
and regulations issued by the Owner with respect to such services. If Tenant
requires air conditioning or ventilation after the usual hours, Tenant shall
give notice in writing to the building superintendent prior to 3:00 P.M. in the
case of services required on week days, and prior to 3:00 P.M. on the day prior
in the case of after hours service required on weekends or on holidays.
14. Tenant shall not move any safe, heavy machinery. heavy equipment, bulky
matter, or fixtures into or out of the building without Landlord's prior written
consent. If such safe, machinery, equipment, bulky matter or fixtures requires
special handling, all work in connection therewith shall comply with all laws
and regulations applicable thereto and shall be done during such hours as Owner
may designate.
15. Tenant shall report all peddlers, solicitors and beggars to the office
of the Building or as Landlord otherwise requests. Landlord shall exercise
reasonable steps to keep such persons outside of the Building.
16. Tenant shall take reasonable action to assure that its employees,
invitees and guests do not (a) utilize any parking spaces designated for the use
of others, nor (b) park in any driveways, fire lanes or other areas not striped
for vehicular parking.
TABLE OF CONTENTS FOR
RIDER TO LEASE
ARTICLE PAGE
------- ----
36. DEFINITIONS; DEMISED PREMISES;
ADJUSTED MINIMUM RENT ................................................. 1
37. COMMENCEMENT OF TERM; COMMENCEMENT DATE;
ESTIMATED COMMENCEMENT DATE AND TERMINATION DATE ....................... 4
38. TENANT'S POSSESSION .................................................... 5
39. HEATING, AIR-CONDITIONING AND VENTILATION;
LEGAL HOLIDAYS; "AFTER HOURS" .......................................... 5
40. ELECTRIC CURRENT ....................................................... 6
41. LIABILITY INSURANCE .................................................... 6
42. ALL RISK INSURANCE ..................................................... 6
43. PARKING FACILITIES ..................................................... 7
44. ACCESS AND COMMON AREAS ................................................ 7
45. INTENTIONALLY DELETED PRIOR TO EXECUTION ............................... 8
46. BROKER ................................................................. 8
47. CLEANING SERVICES ...................................................... 8
48. ASSIGNMENT AND SUBLETTING .............................................. 8
49. TENANT'S COOPERATION; REASONABLE
MODIFICATIONS; ESTOPPEL CERTIFICATE .................................... 13
50. LIMITATION OF LIABILITY;
DEFINITION OF "LANDLORD" ................................................ 13
51. STATUTORY WAIVER; NOTICE BY TENANT .................................... 14
52. CORPORATE AUTHORITY .................................................... 14
53. PERSONAL TAXES ......................................................... 14
54. BUILDING CHANGES ....................................................... 14
55. HOLDING OVER ........................................................... 14
56. RESTRICTIVE COVENANT - FOOD SERVICE .................................... 15
57. NOTICES ................................................................ 15
58. INTERPRETATION ......................................................... 16
59. NO OFFER OR AGREEMENT .................................................. 16
60. DAMAGES ................................................................ 17
61. BANKRUPTCY ............................................................. 17
62. SECURITY ............................................................... 18
63. PARTNERSHIP TENANT ..................................................... 18
64. LANDLORD'S WORK; LANDLORD'S WORK LETTER ................................ 19
65. ECRA COMPLIANCE ........................................................ 20
66. RENEWAL OPTIONS ........................................................ 20
67. RIGHT OF FIRST OFFER ................................................... 22
68. EAGLE ROCK MEMBERSHIP .................................................. 24
SIGNATURE PAGE ......................................................... 24
RIDER TO LEASE
DATED: April 2, 1993
LANDLORD: 5 Xxxxxx Associates
TENANT: New Jersey Mortgage and Investment Corp.
PREMISES: Portion of the first (1st) floor
0 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxx Xxxxxx
36. DEFINITIONS; DEMISED PREMISES;
ADJUSTED MINIMUM RENT
------------------------------
36.1 Definitions. For purposes of this Article, the following terms
shall have the meanings set forth below:
(1) Assessed Valuation shall mean the assessed valuation of the Real
Estate for the First Tax Year, as such assessed valuation is or may be
ultimately determined by final administrative or judicial proceeding, or by
abatement by an appropriate taxing authority;
(2) Base Tax Rate shall mean the real estate tax rate in effect on
the date of this Lease;
(3) First Operating Year shall mean the calendar year ending December
31, 1993. Operating Year shall mean any calendar year thereafter;
(4) First Tax Year shall mean the calendar year ending December 31,
1993. Tax Year shall mean any calendar year thereafter;
(5) Land shall mean the land described in Exhibit C to this Lease;
(6) Occupancy Percentage shall be as defined in Section 36.2;
(7) Real Estate Tax Base shall mean the amount determined by
multiplying the Assessed Valuation by the Base Tax Rate;
(8) Taxes shall mean all real estate taxes, charges and assessments
imposed upon the Land, Building and other improvements thereon or the occupancy
or leasing thereof (collectively, the "Real Estate"). If any franchise, capital
stock, capital gains, rent, income, profit or any other tax or charge shall be
imposed upon all or any part of the Real Estate, such franchise, capital stock,
capital gains, rent, income, profit or other tax or charge shall be deemed
included in the term "Taxes" for the purposes of this Article. Landlord shall
have the exclusive right, but not the obligation, to contest or appeal any Tax
assessment levied on the Real Estate by any governmental or quasi-governmental
authority;
36.2 The Demised Premises shall be deemed to contain a floor area of
10,797 square feet and the building of which the Demised Premises form a part
("Building" or "building") shall be deemed to contain a total floor area of
118,339 square feet. Tenant's occupancy Percentage shall be deemed to be 9.12
percent.
36.3 Adjusted Minimum Rent shall mean the Minimum Rent as increased
in accordance with this Article to reflect any increase in Taxes and Building
Operating Costs. Tenant shall pay such increases as additional rent as
hereinafter provided.
36.4 Taxes. (1) If the Taxes for any Tax Year during the term of this
Lease shall be greater than the Real Estate Tax Base, then Tenant shall pay to
Landlord, as additional rent, an amount equal to the Occupancy Percentage of
such excess.
(2) Upon the issuance by the respective taxing authorities having
jurisdiction over the Real Estate of a xxxx or bills for the Taxes imposed upon
the Real Estate for the First Tax year, Landlord shall submit a copy of such
xxxx or bills to Tenant. Thereafter, on or about each anniversary of said date,
Landlord shall submit to Tenant a copy of the latest tax xxxx or bills for the
Taxes for each subsequent Tax Year indicating each change in the Taxes and the
effective date of such change together with a statement (the "Tax Statement")
which shall indicate the amount, if any, required to be paid by Tenant as
additional rent. Within 30 days after the issuance of the Tax Statement, Tenant
shall pay the additional rent as set forth therein. Any payments due pursuant
to this Article for a period of less than a full Tax Year, either at the
commencement or at the end of the term of this Lease, shall be ratably
apportioned.
(3) If at any time the taxing jurisdiction in which the Real Estate is
located should change its method of valuating the Real Estate for the First Tax
Year as part of a general revaluation program ("Revaluation"), then, the
provisions of Sections 36.1(2) and 36.1(1) above notwithstanding, for purposes
of computing the Real Estate Base pursuant to Section 36.1(7) Landlord may, at
its option, use one of the following methods:
(a) The Assessed Valuation shall be the amount for which the Real
Estate would have been assessed for the First Tax Year if there had
been no Revaluation, and the Base Tax Rate shall be as defined in
Section 36.1(2) above, or
(b) The Assessed Valuation shall be the actual amount assessed,
and the Base Tax Rate shall be the real estate tax rate as subsequently
reduced by the taxing jurisdiction in connection with the Revaluation.
Landlord shall inform the Tenant as to which of the above two methods
Landlord has elected at such time as Landlord submits the Tax Statement to
Tenant.
36.5 Building Operating costs. (1) Tenant hereby agrees that for each
Operating Year during the term of this Lease for which the total Building
Operating Costs (as hereinafter defined) shall exceed the Building Operating
Costs for the First Operating Year, Tenant shall pay to Landlord, as additional
rent, an amount equal to the Occupancy Percentage of such excess within 30 days
after presentation of Landlord's statement (the "Operating Statement") therefor.
The Operating Statement shall indicate (i) the initial additional amount
required to be paid by Tenant as additional rent as in this Article provided;
(ii) the Tenant's new Adjusted Minimum Rent; and (iii) the manner in which such
adjustment is computed. Landlord shall present its Operating Statement within 90
days after the commencement of each such operating Year ("Billing Date").
Tenant shall thereafter, for the balance of that operating Year and for that
portion of the next operating Year until the Billing Date during such year, make
monthly payments of 1/12th of such increase to reflect the change as of the
Billing Date, which amounts shall be credited for the account of Tenant against
the annual payment due on the succeeding Billing Date.
(2) The "Building Operating Costs" shall include each and
every expense incurred in connection with the ownership, administration,
management, operation, repair, replacement and maintenance of the Real Estate,
including but not limited to, wages, salaries and fees paid to persons either
employed by Landlord or engaged as independent contractors in the operation of
the Real Estate, and such other typical items of expense as indicated below. All
such costs and the values allocated to services rendered and supplies delivered
shall be reflected on the comparative statement which shall be exhibited to the
Tenant upon request.
(3) The expenses referred to in this Article shall be determined in
accordance with sound accounting principles. So long as Tenant is not in default
under any provisions of this Lease, Tenant or its representatives shall have the
right, at its own expense, upon reasonable notice and during reasonable hours,
to inspect the books of Landlord for the purpose of verifying the information
contained in any Operating Statement, provided prior written request for such
inspection shall be made by Tenant and further provided that such request is
made within sixty (60) days of receipt of the Operating Statement to be
verified. Any Operating Statement not verified within said sixty (60) day period
shall be deemed to be correct.
(4) Some of the typical items of expense which comprise or may
comprise the Building Operating Costs and to be included in the Statement are or
may be: (a) general repairs and maintenance; (b) utility costs, including but
not limited to, cost of electricity to power HVAC units serving the entire
Building (both tenant and common areas), cost of oil or other fuel required to
heat the entire Building, cost of electricity to light the common areas; (c)
cleaning costs, including but not limited to, window cleaning, general interior
office cleaning, cleaning of common areas; (d) service contracts, including but
not limited to, contracts for elevator service, HVAC service, rubbish removal,
carting, janitorial and watchman services and snow removal; (e) costs of
landscaping; (f) costs of insurance; (g) fees and/or salaries of
superintendents, engineers, mechanics, custodians; (h) towel service for common
lavatories; and (i) sales and use taxes.
(5) Anything to the contrary contained in this Article 36
notwithstanding, if the average occupancy of the Building is less than
ninety-five (95%) percent during the First Operating Year, then Landlord shall
make a determination ("Landlord's Determination") of what the Building Operating
Costs for such year would have been if during the entire year the average tenant
occupancy of the Building were ninety-five (95%) percent. Landlord's
Determination shall be binding and conclusive upon Tenant and shall for all
purposes of this Lease be deemed to be the Building operating Costs for the
First Operating Year. Landlord shall notify Tenant of Landlord's Determination
within ninety (90) days following the last day of the First Operating Year.
Thereafter, if for any subsequent Lease year the average tenant occupancy of the
Building is below ninety-five (95%), the Building Operating Costs for any such
year shall be adjusted by Landlord to the amount that such Building Operating
Costs would have been if the average tenant occupancy during that year had been
ninety-five (95%) percent.
36.6 If, pursuant to any Tax Statement or Operating Statement showing
Taxes or Building Operating Costs for any year subsequent to the First Tax Year
or First Operating Year, respectively, there shall be an additional amount
payable or a refund due with respect to Taxes and/or Building Operating Costs
for the period covered by such statements), such amount shall be calculated, and
any amount payable by the Tenant to the Landlord as additional rent shall be
promptly paid, or the amount due to the Tenant shall be credited against amounts
owing Landlord. However, it is agreed by the parties that any refund shall not
in any way operate to reduce the Minimum Rent. If such calculation takes place
and/or any payment in connection herewith becomes payable after the expiration
of the term of this Lease, this provision shall be deemed to have survived such
expiration.
36.7 Any increase in additional rent under this Article shall be
prorated for the final Operating Year if such Operating Year covers a period of
less than twelve (12) full months. Tenant's obligation to pay additional rent
under this Article for the final Operating Year shall survive the expiration of
the term of this Lease.
36.8 In the event that the payment of any sum required to be paid by
Tenant to Landlord under this Lease (including, without limiting the generality
of the foregoing, Minimum Rent, Adjusted Minimum Rent, or payment made by
Landlord under any
provision of this Lease for which Landlord is entitled to reimbursement by
Tenant) shall become overdue for 10 days beyond the date on which they are due
and payable as provided in this Lease, then a delinquency service charge equal
to four percent of the amount overdue shall become immediately due and payable
to Landlord as liquidated damages for Tenant's failure to make prompt payment.
Further, such delinquency service charge shall be payable on the first day of
the month next succeeding the month during which such late charges become
payable as additional rent, together with interest at a rate equal to two
percent (2%) above the prime lending rate as announced from time to time by
Citibank, N.A. (or any successor thereto), but in no event at a rate greater
than the maximum rate permitted by law, on the amounts overdue from the date on
which they became due and payable. In the event of nonpayment of any delinquency
service charges and interest provided for above, Landlord shall have, in
addition to all other rights and remedies, all the rights and remedies provided
for herein and by law in the case of nonpayment of rent. No failure by Landlord
to insist upon the strict performance by Tenant of Tenant's obligations to pay
late charges shall constitute a waiver by Landlord of its rights to enforce the
provisions of this Section 36.8 in any instance thereafter occurring. The
provisions of this Section 36.8 shall not be construed in any way to extend any
time period provided for in this Lease.
36.9 If Tenant fails to remit when due any sum required to be paid by
Tenant to Landlord under this Lease (including, without limiting the generality
of the foregoing, Minimum Rent, Adjusted Minimum Rent, or payment made by
Landlord under any provision of this Lease for which Landlord is entitled to
reimbursement by Tenant), Landlord may (subject to Article 17 (2) hereof], in
addition to all other rights and remedies provided herein and by law, serve a
written notice of cancellation of this Lease upon Tenant and upon the giving of
said notice of cancellation, this Lease and the term thereof shall terminate and
expire as fully and completely as if the day on which said notice of
cancellation was given were the day herein definitely fixed for the end and
expiration of this Lease and the term thereof and Tenant shall then quit and
surrender the Demised Premises to Landlord but Tenant shall remain liable as
herein provided. Following each second consecutive monthly installment of
Adjusted Minimum Rent that remains unpaid for longer than ten (10) days beyond
the date on which same is due and payable, Landlord may, in addition to all
other rights and remedies provided herein and by law, require that Tenant
increase the amount of the security deposited with Landlord by an amount equal
to two (2) months' Minimum Rent. If Tenant shall deliver to Landlord a check
that is returned unpaid for any reason, Tenant shall pay Landlord TWENTY FIVE
AND 00/100 DOLLARS ($25.00) for Landlord's expense in connection therewith and
said charge shall be payable to Landlord on the first day of the next succeeding
month as additional rent.
37. COMMENCEMENT OF TERM; COMMENCEMENT DATE;
ESTIMATED COMMENCEMENT DATE AND TERMINATION DATE
37.1 The parties intend that the Lease shall commence on or about
August 1, 1993 (the "Estimated Commencement Date"). Notwithstanding the above,
the commencement date ("Commencement Date") as defined, fixed and ascertained in
this Article shall be the date upon which the work required to be performed by
the Landlord pursuant to the Work Letter attached hereto as Exhibit "B" (the
"Work"), shall be substantially completed. The Work shall be deemed to be
substantially completed ("Substantial Completion") for all purposes hereunder,
on the earlier of the date upon which:
A. (i) Landlord has procured a temporary or permanent Certificate of
Occupancy, permitting occupancy of the Demised Premises by the Tenant; and (ii)
the Landlord's architects shall have certified that Landlord has substantially
performed the Work. Substantial Completion shall be deemed to have occurred even
though minor details of work remain to be done, provided such details do not
materially interfere with the Tenant's use of the Demised Premises,
or
B. Tenant shall have taken possession of all or any part of the
Demised Premises.
37.2 On or about the Commencement Date, Landlord shall deliver to
Tenant a notice ("Commencement Date Notice") fixing the Commencement Date and
termination date which shall be a date five (5) years after the Commencement
Date ("Termination Date"). Tenant shall acknowledge receipt of the Commencement
Date Notice by signing a copy of same and returning it to Landlord within five
(5) days of the receipt thereof.
37.3 The date upon which Tenant's obligation to pay Minimum Rent due
hereunder commences ("Rent Commencement Date") shall be deemed to be the
Commencement Date. Notwithstanding the foregoing, Tenant shall pay Landlord
upon the execution of this Lease the security referred to in Articles 34 and 62
hereof.
37.4 If, prior to the Commencement Date, Tenant shall enter the
Demised Premises to make any installations of its equipment, fixtures and
furnishings, Landlord shall have no liability for any personal injury or
property damage suffered by Tenant.
37.5 Subject to Article 24 hereof, if for any reason the Premises are
not ready for occupancy on the Estimated Commencement Date, this Lease shall
nevertheless continue in full force and effect; the Commencement Date shall be
postponed until Substantial Completion has occurred and the Rent Commencement
Date shall be postponed for a like number of days, subject to Article 64. The
Termination Date shall be adjusted to provide the full term set forth above.
38. TENANT'S POSSESSION
38.1 When Tenant takes possession of the Demised Premises, Tenant
shall be deemed to have accepted the Demised Premises as substantially completed
as of the date of such possession.
38.2 During the term of this Lease, Tenant shall have the right at its
sole cost and expense to plant additional trees outside of the Building and
adjacent to the Demised Premises, subject to Landlord's right of approval as to
location and selection of trees.
39. HEATING, AIR-CONDITIONING AND VENTILATION;
LEGAL HOLIDAYS; "AFTER HOURS"
39.1 Notwithstanding the provisions of subsections (b) and (e) of
Article 29 of this Lease, but subject to all of the other terms, covenants and
conditions of said Article 29, Landlord shall provide and furnish appropriate
heat, air-conditioning or ventilation to the Demised Premises between the hours
of 8:00 a.m. to 7:00 p.m., Monday through Friday, other than Legal Holidays
(which are listed on Exhibit "El" attached to this Lease) and on Saturdays
between the hours of 9:00 a.m. and 12 noon.
39.2 At all other times not otherwise provided for in Section 39.1
above, Landlord agrees that it shall, upon prior written request from Tenant,
provide after-hours air-conditioning, ventilation or heating, as the case may
be, for which Tenant shall pay to Landlord as additional rent hereunder, a sum
equal to $35.00 per hour for providing heat, air-conditioning or ventilation
(irrespective of whether any other tenants in the Building are furnished with
heat, air-conditioning or ventilation at the same time) that being intended to
cover Landlord's cost for the power or fuel required to provide the same. In the
event that during the term of this Lease, or any renewal hereof, the Landlord's
cost for providing after-hours heating, air-conditioning or ventilation shall
increase by virtue of utility rate increases or unit fuel cost increases, the
above-specified hourly charges shall be adjusted from time to time to
prospectively reflect said increases. In addition to the foregoing, should
there be any charges incurred by Landlord for additional attendant engineers or
similar additional requirements as may be imposed from time to time by the
State Labor Department, local authorities, union requirements, or the like,
Tenant agrees to reimburse Landlord for its out-of-pocket expenses incurred in
connection therewith, related to the after-hours use by Tenant.
40. ELECTRIC CURRENT
40.1 Landlord's obligation to supply current shall be limited to the
current required to power the Building standard heating and air-conditioning
systems and the lighting of common areas.
40.2 Tenant shall arrange to purchase and pay for all of the electric
current requirements for light and power used in connection with Tenant's
operations within the Demised Premises. Landlord shall furnish and install an
electric meter for the measurement of the consumption of Tenant's electric
current as herein provided.
40.3 At the request of Landlord, prior to the occupancy of the Demised
Premises, Tenant shall execute any and all applications for service, or forms
required by the local utility company supplying electric current to the Building
for the metering of all electric current and power required for the operation of
the electrical equipment of any nature whatsoever and lights within or serving
the Demised Premises.
41. LIABILITY INSURANCE
41.1 Tenant, at its sole cost and expense, shall procure, provide and
maintain in force during the term of this Lease the following policies to be
written by good and solvent insurance companies satisfactory to Landlord: (1)
comprehensive general liability insurance, which shall include coverage for
personal liability, contractual liability, Tenant's legal liability, bodily
injury, death and property damage, all on an occurrence basis with respect to
the business carried on, in or from the Demised Premises and Tenant's use and
occupancy of the Demised Premises, with coverage for any one occurrence or claim
of not less than $1,000,000 or such other amount as Landlord may reasonably
require upon not less than six (6) months' prior written notice. Such insurance
shall include Landlord and the managing agent of the Building as additional
insureds and shall protect Landlord in respect of claims by Tenant as if
Landlord were separately insured; and (2) insurance against such other perils
and in such amounts as Landlord may from time to time reasonably require upon
not less than thirty (30) days' prior written notice.
41.2 Each of the aforesaid policies shall contain an undertaking by
the insurer that no material change adverse to Landlord or Tenant will be made
and such policy will not lapse or be cancelled, except after not less than
ninety (90) days' prior written notice to Landlord of the intended change, lapse
or cancellation. On or before the Commencement Date and thereafter, at least
thirty (30) days prior to the effective date of any policy, Tenant agrees to
deliver to Landlord a duplicate original of the aforesaid policies.
42. ALL RISK INSURANCE
42.1 Tenant, at its sole cost and expense, shall procure, provide and
maintain in force during the term of this Lease the following policy to be
written by a good and solvent insurance company satisfactory to Landlord: "All
Risk" insurance, which shall cover the Demised Premises, Tenant's personal
property, equipment and improvements against loss or damage by fire and any
other hazards or casualties in an amount to provide for the actual replacement
cost of the Demised Premises, Tenant's personal property, equipment and
improvements. Such insurance shall include Landlord and the managing agent of
the Building as additional insureds and shall protect Landlord in respect of
claims by Tenant
as if Landlord were separately insured. The aforesaid "All Risk" policy shall
contain an undertaking by the insurer that no material change adverse to
Landlord or Tenant will be made and such policy will not lapse or be cancelled,
except after not less than ninety (90) days' prior written notice to Landlord of
the intended change, lapse, or cancellation. On or before the Commencement Date
and thereafter, at least thirty (30) days prior to the effective date of the
"All Risk" policy, Tenant agrees to deliver to Landlord a duplicate original of
said policy.
43. PARKING FACILITIES
43.1 So long as Tenant is not in default under this Lease, Landlord
hereby grants to Tenant the revocable license (the "License") to park up to
forty four (44) cars ("Allotted Parking"), for use solely by Tenant and
Tenant's employees, licensees, guests and invitees in the parking area or areas
serving the Building (the "Parking Area"). Landlord agrees to xxxx once, at
Tenant's expense, as the designated parking spaces of Tenant ten (10) parking
spaces within the Parking Area. said designations shall not increase the
Allotted Parking defined in the first sentence of this Section. The use of any
more than the Allotted Parking by Tenant, its employees, licensees, guests or
invitees, after notice from Landlord, shall be deemed a material event of
default under this Lease, and Landlord may immediately suspend or revoke the
License and/or exercise such remedies as are provided in this Lease. Landlord
shall not be responsible to Tenant for enforcing the License or for violation of
the License by other tenants of the Building, by third parties, or guests or
visitors to the Building.
43.2 In the event the number of parking spaces in the Parking Area is
reduced by circumstances beyond the control of Landlord, the Allotted Parking
shall be reduced proportionately.
43.3 Nothing contained in this Lease shall be deemed to create
liability upon Landlord for any damage to motor vehicles of visitors or
employees, for any loss of property from within those motor vehicles, or for any
injury to Tenant, its employees, licensees, guests and invitees unless
ultimately determined to be caused by the sole negligence or willful misconduct
of Landlord, its agents, servants and employees. Tenant agrees to acquaint its
employees with any parking rules and regulations promulgated by Landlord and
assumes responsibility for compliance by its employees with such parking
provisions, and Tenant shall be liable to Landlord for all unpaid parking
charges, if any, incurred by its employees. Any amount due from Tenant pursuant
to this Article 43 shall be deemed additional rent and failure to pay same shall
constitute a default under the Lease. Tenant authorizes Landlord to (i) tow away
from the Parking Area, at Tenant's sole cost and expense, any motor vehicle
belonging to Tenant or Tenant's employees, licensees, guests and invitees
parked illegally or in violation of this Article 43 or any parking rules and
regulations promulgated by Landlord and (ii) attach violation stickers or
notices to any motor vehicles belonging to Tenant or Tenant's employees,
licensees, guests and invitees parked illegally or in violation of this Article
43 or any parking rules and regulations promulgated by Landlord.
44. ACCESS AND COMMON AREAS
44.1 Tenant shall have the right of nonexclusive use, in common with
others, of (a) automobile parking areas not designated for use by others and
driveways (subject to Article 43 hereof) ; (b) footways, and (c) such elevator
and other facilities as may be constructed and designated from time to time by
Landlord in the Building, all to be subject to the terms and conditions of the
Lease and to reasonable rules and regulations for the use thereof as prescribed
from time to time by Landlord.
45. INTENTIONALLY DELETED PRIOR TO EXECUTION
46. BROKER
46.1 Tenant represents that no real estate broker other than Xxxxx,
Xxxxx & Xxxxxxx, P.A. is responsible for bringing about, or negotiating, this
Lease and Tenant has not dealt with any other broker in connection with the
Demised Premises.
46.2 In accordance with the foregoing representation, Tenant agrees
to defend, indemnify and hold harmless the Landlord, its affiliates and/or
subsidiaries, partners and officers from any expense or liability (including
attorney's fees) arising out of any claim for commission by any broker other
than Xxxxx, Xxxxx & Xxxxxxx, P.A. claiming or alleging to have acted on behalf
of or to have dealt with Tenant.
46.3 Tenant represents that Xxxxx, Xxxxx & Xxxxxxx, P.A. is duly
licensed and lawfully permitted to act as the broker in connection with this
Lease.
46.4 Landlord shall pay a one time commission to Xxxxx, Xxxxx &
Xxxxxxx, P.A. in the amount of $138,862.81 within thirty (30) days after the
term of this Lease has commenced, provided Tenant is not in default under this
Lease at such time.
47. CLEANING SERVICES
47.1 So long as Tenant is not in default under this Lease, Landlord
shall provide services for maintenance of the grounds, common areas and parking
areas and such other cleaning services within the Demised Premises as are set
forth on "Cleaning Service Rider" annexed hereto and made a part hereof as
Exhibit "D", as same may be reasonably amended from time to time by Landlord.
Landlord's cleaning services shall include the cleaning of the kitchen floor and
wiping the kitchen counters located within the Demised Premises.
47.2 Tenant shall pay to Landlord the cost of removal from the
Demised Premises of any of Tenant's refuse or rubbish other than ordinary office
waste, and Tenant, at Tenant's expense, shall cause all portions of the Demised
Premises not used as office areas to be cleaned daily in a manner satisfactory
to Landlord. Tenant also shall cause all portions of the Demised Premises used
for the storage, preparation, service or consumption of food or beverages to be
exterminated against infestation by vermin, roaches or rodents regularly and, in
addition, whenever there shall be evidence of any infestation. Tenant shall
contract directly with Landlord or, at Landlord's option, directly with
Landlord's contractors, for the removal of such other refuse and rubbish and for
cleaning services in addition to those furnished by Landlord and for
extermination services required hereunder.
48. ASSIGNMENT AND SUBLETTING
48.1 For purposes of this Article and Article 11, any occupancy
arrangement (including without limitation management agreements, concessions and
licenses) affecting all or any part of the Demised Premises, other than a direct
lease with Landlord, not deemed an assignment shall be referred to as a sublease
and any occupant of all or part of the Demised Premises, other than a tenant
under a direct lease with Landlord, not deemed an assignee shall be referred to
as a sublessee. Supplementing the provisions of Article 11, and except as
provided in Section 48.8 if the Tenant shall desire to assign this Lease, sublet
or underlet all or any portion of the Demised Premises, it shall first submit in
writing to the Landlord a notice setting forth in reasonable detail:
(a) the identity and address of the proposed assignee or sublessee;
(b) in the case of a subletting, the terms and conditions thereof;
8
(c) the nature and character of the business of the proposed assignee
and sublessee and its proposed use for the Demised Premises;
(d) evidence that the proposed assignee or sublessee is a United States
citizen or citizens or a corporation qualified to do business in the State of
New Jersey and organized and existing under the laws of one of the States of the
United States;
(e) banking, financial and other credit information relating to the
proposed assignee or sublessee reasonably sufficient to enable Landlord to
determine the proposed assignee's or sublessee's financial responsibility; and
(f) in the case of a subletting of only a portion of the Demised
Premises, plans and specifications for Tenant's layout, partitioning, and
electrical installations for the portion of the Demised Premises to be sublet.
48.2 If the nature and character of the business of the proposed
assignee or sublessee, and the proposed use and occupancy of the Demised
Premises, or any portion thereof, by the proposed assignee or sublessee, is in
keeping and compatible with the dignity and character of the Building, then,
subject to compliance with the requirements of Article 11 and this Article 48,
anything to the contrary in Article 11 notwithstanding, Landlord agrees not
unreasonably to withhold or delay its consent to any such proposed assignment or
subletting; provided, however, that Tenant shall, by notice in writing as
described in Section 48.1, advise Landlord of its intention to assign this Lease
or to sublease all or any part of the Demised Premises, from, on and after a
stated date (which shall not be less than 60 days after the date of Tenant's
notice), in which event Landlord shall have the right, to be exercised by giving
written notice, to recapture the space described in Tenant's notice. Such
recapture notice shall, if given, cancel and terminate this Lease with respect
to the space therein described as of a date which shall be the later of 30 days
following the date set forth in Tenant's notice, or 30 days after Tenant shall
have surrendered possession of the Demised Premises. In the event less than all
of the Demised Premises are recaptured, Landlord shall construct and erect such
partitioning and modify building systems as may be required to separate the
space retained by Tenant from the space recaptured. The cost of such alterations
shall be borne fully and exclusively by Tenant, shall constitute additional rent
hereunder and shall be payable to Landlord within 20 days following a statement
from Landlord for the amount thereof.
48.3 If this Lease be cancelled pursuant to the foregoing with
respect to less than the entire Demised Premises, the Minimum Rent and/or the
Adjusted Minimum Rent and Tenant's Occupancy Percentage shall be adjusted on the
basis of the number of square feet retained by Tenant in proportion to the
number of square feet originally demised under this Lease, and this Lease, as so
amended, shall continue thereafter in full force and effect. If the Lease shall
be cancelled pursuant to Section 48.2 hereof with respect to all or any part of
the Demised Premises, then, Tenant shall be released from paying all Adjusted
Minimum Rent, Minimum Rent and additional rent (i) that relate solely to the
space required to be surrendered pursuant to Section 48.2 hereof and (ii) which
accrues after the date on which Tenant quits, surrenders and delivers to
Landlord actual and exclusive possession of the space required to be surrendered
pursuant to Section 48.2 hereof in an empty, vacant, broom clean condition, in
good order and free of all (a) occupants, (b) tenants, (c) liens and (d)
property required to be removed under the Lease by the Termination Date.
48.4 In addition to the foregoing requirements: (a) no sublease shall
violate any law or result in an occupancy of the Demised Premises by more than
three (3) tenants, including the Tenant hereunder, (b) no sublease shall be for
a term of less than two years, unless the unexpired term of this Lease shall be
less than two years at the commencement of the sublease, (c) no assignee
9
or sublessee shall be an existing tenant of or any party then negotiating for
space in the Building, or any other building in the office park of which the
Building is a part (i) owned by Landlord, Bellemead Development Corporation
("Bellemead") or any partnership in which Bellemead or an affiliate of Bellemead
is a partner or (ii) managed by Bellemead or an affiliate of Bellemead
("Affiliated Building"), (d) no sublease shall result in the occupancy of less
than 1000 square feet of space, (e) Tenant shall not be in default under any of
the terms and conditions of this Lease at the time of any notice or request for
consent under the terms of this Article or at the effective date of such
assignment or subletting, (f) no subletting or assignment shall be for a face
rental rate less than that currently being charged by Landlord for comparable
space in the Building or any Affiliated Building. Furthermore, anything to the
contrary in Section 48.2 notwithstanding, Landlord shall not consent to any
sublease or assignment unless Tenant agrees at the time of the proposed sublease
or assignment and in the Tenant's notice required in Section 48.2 to pay over to
Landlord fifty (50%) percent of all consideration (of whatever nature) that
would be payable by the prospective sublessee or assignee to Tenant over the
term of the sublease or assignment pursuant to such sublease or assignment which
exceeds the prorata share of the Minimum Rent allocable to the Demised Premises,
or any part thereof, as the case may be, payable by Tenant hereunder and (g)
Tenant shall pay when due all brokerage or similar commissions arising from any
assignment or sublease.
48.5 Any sublease must provide (a) that it shall be subject and
subordinate to all of the terms and conditions of this Lease, (b) that
notwithstanding Article 2 hereof, the use of the Demised Premises thereunder
shall be restricted exclusively to executive and administrative office use, (c)
that the term thereof shall not extend beyond a date which is one day prior to
the expiration date of the Term hereof, (d) no sublessee or its heirs,
distributees, executors, administrators, legal representatives, successors or
assigns, without the prior consent of Landlord in each instance, which consent
Landlord may withhold for any reason or no reason, shall (i) assign, whether by
merger, consolidation or otherwise, mortgage or encumber its interest in any
sublease, in whole or in part, or (ii) sublet, or permit the subletting of, that
part of the Demised Premises affected by such subletting or any part thereof, or
(iii) permit such part of the Demised Premises affected by such subletting or
any part thereof to be occupied or used for desk space, mailing privileges or
otherwise, by any person other than such sublessee. The sale, pledge, transfer
or other alienation of (y) any of the issued and outstanding capital stock of
any corporate sublessee (unless such stock is publicly traded on any recognized
security exchange or over-the-counter market) or (z) any transfer of interest in
any partnership or joint venture sublessee, however accomplished, and whether in
a single transaction or in a series of related or unrelated transactions, shall
be deemed, for the purposes of this Section, an assignment of such sublease
which shall require the prior consent of Landlord in each instance, and (e) in
the event of cancellation or termination of this Lease for any reason whatsoever
or of the surrender of this Lease whether voluntary, involuntary or by operation
of law, prior to the expiration date of such sublease, including extensions and
renewals granted thereunder, that, at Landlord's option, the subtenant shall
vacate the Demised Premises or shall make full and complete attornment to
Landlord for the balance of the term of the sublease, which attornment shall be
evidenced by an agreement in form and substance satisfactory to Landlord which
the subtenant shall execute and deliver at any time within five days after
request by Landlord, its successors and assigns. The subtenant shall waive the
provisions of any law now or hereafter in effect which may give the subtenant
any right of election to terminate the sublease or to surrender possession of
the Demised Premises in the event any proceeding is brought by Landlord to
terminate this Lease. No assignee or sublessee shall receive any credit from
Landlord whatsoever for security deposits, rent or any other monies paid to
Tenant unless same shall have been actually received by Landlord.
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48.6 Each of the following events shall be deemed to constitute an
assignment of this Lease and shall require the prior written consent of
Landlord in each instance:
(a) Any assignment or transfer of this Lease by operation of law;
(b) Any hypothecation, pledge or collateral assignment of this Lease;
and
(c) Any involuntary assignment or transfer of this Lease in connection
with bankruptcy, insolvency, receivership or otherwise.
48.7 Tenant, its sublessees, and their respective successors and
assigns acknowledge and agree that the restriction that Landlord's consent under
certain circumstances to a proposed assignment of this Lease or to a subletting
shall not be unreasonably withheld and shall not be intended or construed as an
agreement or covenant on the part of Landlord, but rather as a qualification on
Tenant's covenant not to assign this Lease or sublet, and they further agree
that Landlord shall not be liable in damages or subject to liability of any
other kind or nature whatever by reason of Landlord's failure or refusal to
grant its consent to any proposed assignment of this Lease or subletting of the
Demised Premises, the sole and exclusive recourse being a declaratory judgment
on the question of Landlord's reasonableness.
48.8 It is a condition to the effectiveness of any permitted
assignment or sublease otherwise complying with Article 11 and this Article 48
that the assignee execute, acknowledge and deliver to Landlord an agreement in
form and substance satisfactory to Landlord whereby the assignee assumes all
obligations of Tenant under this Lease, and agrees that the provisions of
Article 11 and this Article 48 shall continue to be binding upon it in respect
of all future assignments of this Lease. No assignment of this Lease shall
release the assignor from its continuing obligations to Landlord under this
Lease or any renewals or extensions thereof, except as expressly herein
provided, and Tenant and any subsequent assignor shall continue to remain
jointly and severally liable (as primary obligor) for all of Tenant's
obligations hereunder.
48.9 Tenant covenants to obtain all permits and approvals required by
any governmental or quasi-governmental agency for any work or otherwise required
in connection with any assignment of this Lease or any sublease, and Tenant
shall deliver copies of the same to Landlord prior to the commencement of work
if work is to be done. Tenant is furthermore responsible for and is required to
reimburse Landlord for all costs including, but not limited to, architectural,
engineering and legal fees which Landlord incurs in reviewing any proposed
assignment of this Lease or any sublease and any permits, approvals and
applications for the construction within the Demised Premises. Tenant's failure
to obtain any of the above-mentioned permits and approvals or to submit same and
a duplicate original counterpart of the assignment or sublease to Landlord
within five days of the date of issuance or execution of such item(s) shall
constitute a default under this Lease.
48.10 If Landlord reasonably withholds its consent of any proposed
assignment or sublease, or if Landlord exercises its recapture option under
Section 48.2, Tenant shall indemnify, defend and hold harmless Landlord against
and from all loss, liability, damage, cost and expense (including reasonable
attorneys' fees and disbursements) resulting from any claims that may be made
against Landlord by the proposed assignee or sublessee or by any brokers or
other persons claiming a commission or similar compensation in connection with
the proposed assignment or sublease.
48.11 If Landlord consents to any proposed assignment or sublease and
Tenant fails to consummate the assignment or sublease to which Landlord
consented within 45 days after the giving of such consent, Tenant shall be
required again to comply with all of the
11
provisions and conditions of this Article 48 before assigning this Lease or
subletting all or part of the Demised Premises.
48.12 The joint and several liability of the named Tenant and any
immediate or remote successor in interest of the named Tenant for the due
performance and observance of all covenants and conditions to be performed and
observed by Tenant shall not be impaired by any agreement of Landlord extending
the time for such performance or observance or by Landlord's waiving or failing
to enforce any provisions of this Lease.
48.13 The listing of any name other than that of Tenant on any door of
the Demised Premises or on any directory or in any elevator in the Building or
otherwise, shall not operate to vest in the person so named any right or
interest in this Lease or in the Demised Premises or the Building, or be deemed
to constitute, or serve as a substitute for any prior consent required under
this Article, and it is understood that any such listing shall constitute a
privilege extended by Landlord which shall be revocable at Landlord's will by
notice to Tenant.
48.14 Any provisions of Article 11 and Article 48 to the contrary
notwithstanding, but subject to the other terms, conditions and provisions
contained in said Articles:
(a) Any corporate Tenant shall have the right, without the
consent of Landlord, to assign this Lease or sublet all or any part of
the Demised Premises to any corporation controlling, controlled by or
under common control with Tenant (through a public offering, private
placement or otherwise) provided that no such assignee shall further
assign this Lease and no such sublessee shall assign or encumber its
sublease or further sublet all or any part of the Demised Premises, and
provided, further, that any event resulting in such assignee or
sublessee ceasing to be a corporation controlling, controlled by or
under common control with Tenant shall be deemed to be an assignment or
sublease requiring the prior consent of Landlord and Tenant shall
thereupon be required to comply with all provisions of Article 11 and
this Article 48 applicable thereto. For purposes of this Section,
"control" means ownership of at least fifty-one percent (51%) of the
issued and outstanding voting stock of such corporation.
(b) Any corporate Tenant shall also have the right, without
the consent of Landlord, to assign this Lease to any corporation
succeeding to Tenant by merger or consolidation in accordance with
applicable statutory provisions for merger or consolidation of
corporations or by purchase of all or substantially all of Tenant's
assets, provided that immediately after such merger, consolidation or
purchase, the shareholders' equity (capital stock, additional paid-in
capital and retained earnings) of the successor corporation or the
purchasing corporation, as the case may be, shall be at least equal to
the shareholders' equity of Tenant immediately prior to such merger,
consolidation or purchase and the foregoing shall be so certified by
the chief financial officer of the assignee.
It is Landlord's intent to permit assignment of the Lease and
subletting pursuant to this Section 48.14 exclusively as an accommodation to the
bona fide and legitimate business needs of Tenant, and notwithstanding the
provisions hereof, no assignment of this Lease or sublease of the Demised
Premises without Landlord's consent hereunder shall be permitted where the sole
or primary purpose of such assignment or subletting is to permit occupancy of
the Demised Premises by a third party in avoidance of Landlord's consent, or in
the case of a corporation's purchasing all or substantially all of Tenant's
assets where this Lease constitutes all or a substantial portion of such assets.
Tenant shall promptly give Landlord prior written notice of any assignment of
this Lease or subletting permitted under this Section 48.14 accompanied by all
documentation required by Landlord to establish compliance with the requirements
of subsections (a) and (b) above and Tenant shall also promptly provide Landlord
with a copy of any executed instrument of
12
merger, consolidation or assignment or the executed sublease, as
the case may be.
49. TENANT'S COOPERATION; REASONABLE
MODIFICATIONS; ESTOPPEL CERTIFICATE
49.1 If, in connection with obtaining financing for the Building
and/or the Real Estate, or otherwise upon the interest of the Landlord, as
lessee, under any ground or underlying lease, any lending institution shall
request reasonable modifications of this Lease as a condition of such
financing, Tenant covenants not unreasonably to withhold or delay its agreement
to such modification, upon Landlord's request, provided that such modification
does not materially or adversely affect the rights of Tenant under this Lease.
49.2 Tenant agrees at any time and from time to time, upon not less
than ten days' prior written request, that Tenant shall execute, acknowledge and
deliver to Landlord, or its designee, a statement in writing certifying: that
this Lease is unmodified and is in full force and effect (or if there have been
modifications, the specifics thereof and that the Lease is in full force and
effect as modified); the dates to which the Minimum Rent (or Adjusted Minimum
Rent) and additional rent have been paid; the amount of all rents paid in
advance, if any; and any other information that Landlord shall reasonably
request. Tenant further agrees to furnish Landlord upon demand at any time such
information and assurances as Landlord may request that Tenant has not breached
the provisions of this Lease. It is intended hereby that any such statement
delivered pursuant to this Article may be relied upon by a prospective purchaser
of the Landlord's interest or a mortgagee of Landlord's interest, or any
assignee of any mortgage upon Landlord's interests in the Real Estate. The
foregoing obligation shall be deemed a substantial obligation of the tenancy,
the breach of which shall give Landlord those remedies herein provided for an
event of default. Tenant's failure to timely deliver such statement shall be
conclusive upon Tenant: (a) that this Lease is in full force and effect, without
modification except as may be represented by Landlord; (b) that there are no
uncured defaults in Landlord's performance and Tenant has no right of offset,
counterclaim, defenses or deduction against the Minimum Rent, Adjusted Minimum
Rent, additional rent or against Landlord; and (c) that no more than one month's
installment of Minimum Rent has been paid in advance.
49.3 Tenant agrees that in connection with any financing or
refinancing of the Building and/or the Real Estate, upon not less than ten (10)
days' prior written request, that Tenant shall demonstrate to Landlord Tenant's
financial status and that of any occupant of the Demised Premises by submitting
to Landlord all reasonable information as Landlord may request, including but
not limited to a balance sheet as of a date within ninety (90) days of
Landlord's request therefor and statements of income or profit and loss. The
foregoing obligation shall be deemed a substantial obligation of the tenancy,
the breach of which shall give Landlord those remedies herein provided for an
event of default.
50. LIMITATION OF LIABILITY;
DEFINITION OF "LANDLORD"
50.1 Notwithstanding anything to the contrary herein provided, each
and every term, covenant, condition and provision of this Lease, is hereby made
specifically subject to the provisions of this Article 50. The term "Owner" or
"Landlord" as used in this Lease means only the owners or lessors for the time
being of the Real Estate, so that in the event of any conveyance of such
interest and the transfer to the transferee of any funds then being held under
this Lease by such owner, Landlord shall be and hereby is entirely freed and
relieved of any and all obligations of Landlord hereunder thereafter accruing,
and it shall be deemed without further agreement between the parties and such
grantee(s) that the grantee has assumed and agreed to observe and perform all
obligations of Landlord hereunder. It is specifically understood and agreed that
notwithstanding anything to the contrary herein
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provided or otherwise provided at law or in equity, there shall be absolutely no
personal liability in excess of its interest in the Real Estate to the Landlord
or any successor in interest thereto (whether the same be an individual, joint
venture, tenancy in common, firm or partnership, general, limited or otherwise)
or on the part of the members of any firm, partnership or joint venture or other
unincorporated Landlord with respect to any of the terms, covenants and/or
conditions of this Lease; in the event of a breach or default by Landlord, or
any successor in interest thereof, of any of its obligations under this Lease,
Tenant shall look solely to the then Landlord for the satisfaction of each and
every remedy of Tenant, such exculpation of personal and additional liability
which is in excess of such interest in the Real Estate to be absolute and
without any exception whatsoever.
51. STATUTORY WAIVER; NOTICE BY TENANT
51.1 Tenant waives the benefit of N.J.S.A. 46:8-6 and 46:8-7, as same
may be amended. Tenant further waives its right under N.J.S.A. 2A:18-60, as same
may be amended. Tenant agrees that it will not be relieved of the obligations to
pay the Minimum Rent; Adjusted Minimum Rent or any additional rent in case of
damage to or destruction of the Building, except as provided in Article 9 of the
Printed Portion of this Lease.
51.2 Tenant shall give Landlord immediate notice in case of fire or
accident within the Demised Premises, or, upon the Real Estate if involving
Tenant, its servants, agents, guests, employees, invitees or licensees.
52. CORPORATE AUTHORITY
52.1 Tenant represents that the officer executing and delivering this
Lease has been duly authorized to enter into this Lease and that the execution
and delivery of this Lease by Tenant do not and shall not violate any provision
of any by-law, agreement, order, judgment, governmental regulation or any other
obligation to which Tenant is a party or is subject.
52.2 Upon execution hereof, Tenant shall deliver an appropriate
certification by its secretary or assistant secretary to the above effect.
53. PERSONAL TAXES
53.1 Tenant agrees to pay all taxes imposed upon Tenant or on the
personal property of Tenant in connection with its use and occupancy of the
Demised Premises including, but not limited to, personal property, income,
withholding and unemployment compensation, and to hold Landlord harmless from
collection thereof out of monies due and owing Landlord.
54. BUILDING CHANGES
54.1 This Lease shall not be affected or impaired by any change to
any lawns, sidewalk, driveways, parking areas or streets adjacent to or around
the Building, except as provided in the provisions of this Lease dealing with
condemnation.
55. HOLDING OVER
55.1 Tenant shall pay Landlord one and one half (1 1/2) times the
fair market rental value of the Demised Premises, as determined by Landlord (but
in no event less than one and one half (1 1/2) times the total of Adjusted
Minimum Rent plus additional rent then applicable under the Lease) for each
month or partial month during which Tenant retains possession of the Demised
Premises, or any part thereof, after the expiration or termination of the Lease.
Notwithstanding the preceding sentence, the parties hereto agree that Tenant
shall only be responsible for paying the Adjusted Minimum Rent stated in the
Lease for the initial sixty (60) day period following the expiration or
termination of the Lease and the holdover rent penalty of one and one-half
(1 1/2) times the fair market rental value of the Demised Premises shall
commence on the
14
sixty first (61st) day following the termination of the Lease. Tenant
understands that on the last day of the term of this Lease, all or a part of the
Demised Premises may be subject to certain rights of occupancy held by other
parties and that any retention of possession by Tenant after the last day of the
term of this Lease may cause significant hardship on Landlord and on parties to
whom certain rights of occupancy for all or any part of the Demised Premises
have been granted. In connection with the foregoing, Tenant shall defend,
indemnify and hold Landlord harmless against all liabilities and damages
sustained by reason of any such retention of possession. If Tenant retains
possession of the Demised Premises, or any part thereof, for thirty (30) days or
longer after the expiration or termination of this Lease, then Landlord, at
Landlord's election expressed in a written notice to Tenant but not otherwise,
may, in addition to all other rights and remedies available to Landlord under
this Lease and by law, constitute such holding over as a renewal of this Lease
for a period of one (1) year on the same terms as are set forth in this Lease,
except that the Minimum Rent shall be equal to the then fair rental value of the
Demised Premises, as determined by Landlord (but in no event less than the
Minimum Rent then payable by Tenant under this Lease). Nothing contained in this
Lease shall be construed as a consent by Landlord to the occupancy or possession
by Tenant of the Demised Premises beyond the Termination Date or prior
expiration of the term hereof, and Landlord, upon the Termination Date or prior
expiration of the term hereof, shall also be entitled to consequential damages
and to the benefit of all legal remedies that now may be in force or may be
hereafter enacted for summary possession of the Demised Premises.
56. RESTRICTIVE COVENANT - FOOD SERVICE
56.1 Tenant hereby covenants and agrees (anything to the contrary
contained in this Lease, notwithstanding) that it shall not use the Demised
Premises or any portion thereof, for the service of food to anyone other than
Tenant's employees, nor shall it maintain any facilities for the sale or
consumption of food to and by anyone other than Tenant's employees without, in
each case, obtaining the prior written consent of the Landlord. The consent of
the Landlord required hereunder may be withheld for any reason or no reason.
56.2 Landlord represents to Tenant, and Tenant acknowledges, that
pursuant to agreements made or to be made by and between the Landlord and third
parties for the operation of a restaurant, cafeteria, coffee-cart and similar
food services for this Building and/or other buildings in the office park in
which this Building is located, no tenant of this Building, including Tenant,
shall prepare, contract for, serve or otherwise make available a food service
facility in competition with such third parties. Any breach of this restriction
by the Tenant shall be deemed a material event of default under the terms of
this Lease, and Landlord may, in its discretion, exercise such remedies as it
may deem appropriate to terminate this Lease, prevent a violation of this
covenant, and recover any damages to which it may be exposed by virtue of a
breach by the Tenant.
56.3 Tenant shall not permit the consumption of food or drink in the
common areas of the Building.
57. NOTICES
57.1 All notices, demands and requests which may or are required to be
given by either party hereunder to the other, shall be in writing. All notices,
demands and requests by Landlord to Tenant shall be deemed to have been properly
given if sent by Landlord or its managing agent and mailed by registered or
certified mail, return receipt requested, postage prepaid, addressed to Tenant
at the Demised Premises Attention: Xxxxxxx X. Xxxxx, President or to such other
address as Tenant may from time to time designate by written notice to Landlord.
All notices, demands and requests by Tenant to Landlord shall be
deemed duly given or served if, and shall not be deemed
15
duly given or served unless, sent by registered or certified mail, return
receipt requested, postage prepaid, addressed to Landlord at:
LANDLORD: 5 XXXXXX ASSOCIATES
c/o Bellemead Management Co., Inc.
280 Corporate Center
0 Xxxxxx Xxxx Xxxx
Xxxxx Xxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Attention: Legal Department
or to such other address as Landlord may from time to time designate by written
notice to Tenant.
All notices referred to hereunder shall be deemed given and received
two days after the date said notice is mailed by United States registered or
certified mail as aforesaid, in any post office or branch post office regularly
maintained by the United State Government, unless said notice was personally
served upon, an officer of Landlord or Tenant, in which case such notice shall
be deemed given when delivered.
58. INTERPRETATION
58.1 If any term or provisions of this Lease or the application
thereof to any party or circumstance shall to any extent be invalid or
unenforceable, the remainder of this Lease or the application of such term or
provision to parties or circumstances other than to those with respect to which
it is held invalid or enforceable, shall not be affected thereby, and each term
and provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
58.2 In any and all cases where Landlord's consent or approval is
required under this Lease, Tenant shall upon Landlord's demand reimburse
Landlord, as additional rent, for all costs and expenses, including but not
limited to architectural, engineering and legal fees, which Landlord incurs in
determining whether to grant its consent or approval.
58.3 This Lease shall be governed by and construed in accordance with
the laws of and enforced only in the courts of New Jersey. Tenant hereby
irrevocably submits itself to the jurisdiction of the courts of the State of New
Jersey and to the jurisdiction of the United States District Court for the
District of New Jersey for the purposes of any suit, action or other proceeding
brought by Landlord arising out of or based upon this Lease. Tenant hereby
waives and agrees not to assert, by way of motion, as a defense, or otherwise,
in any such suit, action or proceeding, any claim that it is not subject
personally to the jurisdiction of the above-named courts, that its property is
exempt or immune from attachment or execution, that the suit, action or
proceeding is brought in an inconvenient forum, that the venue of the suit,
action or proceeding is improper or that this Lease may not be enforced in or by
such court.
58.4 This Lease shall be construed without regard to any presumption
or other rule requiring construction against the party causing this Lease to be
drafted. Text deleted from a prior draft of this Lease shall not be admissible
in an action or proceeding relating to the Lease for the purpose of altering or
limiting the meaning or effect of the Lease.
58.5 Tenant acknowledges and agrees that it has had the assistance of
counsel in the review, negotiation and execution of this Lease or has waived its
right to counsel.
59. NO OFFER OR AGREEMENT
59.1 No broker or agent of any broker has authority to make or agree
to make a lease or any other agreement or undertaking in connection herewith,
including, but not limited to the modification, amendment of or cancellation of
a lease. The mailing
16
or delivery of this document or any draft hereof by the Landlord or its agent
to Tenant, its agent or attorney shall not be deemed an offer by the Landlord to
lease the Demised Premises on the terms herein. This Lease shall not be
effective, nor shall Tenant have any rights with respect thereto unless and
until Landlord shall accept this Lease and execute and deliver the same to
Tenant.
60. DAMAGES
60.1 Notwithstanding anything to the contrary contained in Article
18 hereof, if Landlord shall re-enter the Demised Premises under the provisions
of Article 18, or in the event of the termination of this Lease, or of
re-entry, by or under any summary dispossess or other proceeding or action of
any provision of law by reason of default hereunder on the part of Tenant,
Tenant shall pay to Landlord as damages, (i) a sum which at the time of such
termination of this Lease or at the time of any such re-entry by Landlord, as
the case may be, equals the aggregate Adjusted Minimum Rent payable hereunder
which would have been payable by Tenant (conclusively presuming that additional
rent on account of increases in Taxes and Building Operating Costs shall
increase at the average of the rates of increase thereof previously experienced
by Landlord during the period not to exceed 3 years prior to such termination)
for the period commencing with such earlier termination of this Lease or the
date of such re-entry, as the case may be, and ending with the Termination
Date, had this Lease not so terminated or had Landlord not so re-entered the
Demised Premises plus (ii) the expenses of re-letting, including altering and
preparing the Demised Premises for new tenants, brokers, commissions,
attorney's fees and all other expenses properly chargeable against the Demised
Premises and the rental thereof. Any such re-letting may be for a period
shorter or longer than the remaining term of this Lease; but in no event shall
Tenant be entitled to receive any excess of such net rents over the sums
payable by Tenant to Landlord hereunder, or shall Tenant be entitled in any
suit for the collection of damages pursuant to this subsection to a credit in
respect of any net rents from a reletting. If the Demised Premises or any part
thereof should be re-let in combination with the other space, then proper
apportionment on a square foot basis shall be made of the rent received from
such re-letting and of the expenses of re-letting.
60.2 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated or had Landlord not re-entered the Demised
Premises. Nothing herein contained shall be construed to limit or preclude
recovery by Landlord against Tenant of any sums or damages to which, in
addition to the damages particularly provided above, Landlord may lawfully be
entitled by reason of any default hereunder on the part of Tenant. Any
indemnity of Tenant shall survive the expiration or earlier termination of this
Lease. Nothing herein contained shall be construed to limit or prejudice the
right of Landlord to prove for and obtain as liquidated damages by reason of
the termination of this Lease or re-entry of the Demised Premises for the
default of Tenant under this Lease, an amount equal to the maximum allowed by
any statute or rule of law governing the proceedings in which such damages are
to be proved whether or not such amount be greater, equal to, or less than any
of the sums referred to in Section 60.1.
61. BANKRUPTCY
61.1 If, as a matter of law, Landlord has no right on the bankruptcy
of Tenant to terminate this Lease, then, if Tenant, as debtor, or its trustee
wishes to assume or assign this Lease, in addition to curing or adequately
assuring the cure of all defaults existing under this Lease on Tenant's part on
the date of filing of the proceeding (such assurances being defined below),
Tenant, as debtor, or the trustee or assignee, must also furnish adequate
assurances of future performance under this Lease (as defined below). Adequate
assurance of curing defaults means the posting
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with Landlord of a sum in cash sufficient to defray the cost of such a cure.
Adequate assurance of future performance under this Lease means posting a
deposit equal to three (3) months' rent, including all other charges payable by
Tenant hereunder, such as the amounts payable pursuant to Article 36 hereof,
and, in the case of an assignee, assuring Landlord that the assignee is
financially capable of assuming this Lease, and that its use of the Demised
Premises will not be detrimental to the other tenants in the Building or
Landlord. In a reorganization under Chapter 11 of the Bankruptcy Code, the
debtor or trustee must assume this Lease or assign it within one hundred twenty
(120) days from the filing of the proceeding, or he shall be deemed to have
rejected and terminated this Lease.
61.2 If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et seq. (the
"Bankruptcy Code"), any and all monies or other considerations to be delivered
in connection with the assignment shall be delivered to Landlord, shall be and
remain the exclusive property of Landlord and shall not constitute property of
Tenant or of the estate of Tenant within the meaning of the Bankruptcy Code. Any
person or entity to which this Lease is assigned pursuant to the provisions of
the Bankruptcy Code shall be deemed to have assumed all of the obligations
arising under this Lease on and after the date of the assignment, and shall upon
demand execute and deliver to Landlord an instrument confirming that assumption.
62. SECURITY
62.1 In the event Landlord applies or retains any portion or all of
the security deposited, Tenant shall forthwith restore the amount so applied or
retained so that at all times the amount deposited with Landlord shall be not
less than $14,620.94.
62.2 Tenant, in lieu of cash, may deliver to Landlord, as security, an
irrevocable negotiable letter of credit ("Letter of Credit") by and drawn on a
bank or trust company approved by Landlord, in form and content acceptable to
Landlord for its account in the amount of $14,620.94. The Letter of Credit shall
have an expiration date of not less than one (1) year from the date hereof and
shall be renewed by Tenant each and every year during the term of this Lease so
that the Letter of Credit may be drawn down through and including the sixtieth
(60th) day after the Termination Date. Each renewal shall be delivered to
Landlord not less than sixty (60) days before the expiration date of the then
current Letter of Credit. Failure to deliver such renewal on or before said date
shall be a material breach of this Lease and Landlord shall have the right,
among other remedies provided hereunder, to present the existing Letter of
Credit for payment, draw thereon and apply or retain the proceeds thereof in
accordance with Articles 34 and 62. Upon Landlord's demand, Tenant shall revise
the Letter of Credit by changing the beneficiary thereunder to whomever Landlord
may designate from time to time. Tenant shall deliver the revised Letter of
Credit naming the new beneficiary within thirty (30) days after Landlord
requests delivery of same. Failure to deliver such revised Letter of Credit
within the aforementioned thirty (30) day period shall be a material breach of
this Lease and Landlord shall have the right, among other remedies provided
hereunder, to present the existing Letter of Credit for payment, draw thereon
and apply or retain the proceeds thereof in accordance with Articles 34 and 62.
63. PARTNERSHIP TENANT
63.1 If Tenant is a partnership, joint venture or unincorporated
association (or is comprised of two (2) or more persons, individually and as
co-partners of a partnership) or if Tenant's interest in this Lease shall be
assigned to a partnership, joint venture or unincorporated association (or to
two (2) or more persons, individually and as co-partners of a partnership)
pursuant to Articles 11 and 48 (any such partnership and such persons are
referred to in this Section as "Partnership Tenant"), the following
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provisions of this Section shall apply to such Partnership Tenant; (i) the
liability of each of the persons comprising Partnership Tenant shall be joint
and several, individually and as a partner, and (ii) each of the persons
comprising Partnership Tenant, whether or not such person shall be one of the
persons comprising Tenant at the time in question, hereby consents in advance
to, and agrees to be bound by, any written instrument which may hereafter be
executed, changing, modifying or discharging this Lease, in whole or in part, or
surrendering all or any part of the Demised Premises to Landlord, and by any
notices, demands, requests or other communications which may hereafter be given,
by Partnership Tenant or by any of the persons comprising Partnership Tenant and
(iii) any bills, statements, notices, demands, requests or other communications
given or rendered to Partnership Tenant or to any of the persons comprising
Partnership Tenant shall be deemed given or rendered to Partnership Tenant and
to all such persons and shall be binding upon Partnership Tenant and all such
persons, and (iv) if Partnership Tenant shall admit new partners, all of such
new partners shall, by their admission to Partnership Tenant, be deemed to have
assumed performance of all of the terms, covenants and conditions of this Lease
on Tenant's part to be observed and performed, and shall be liable for such
performance, together with all other partners, jointly or severally,
individually and as a partner, and (v) Partnership Tenant shall give prompt
notice to Landlord of the admission of any such new partners, and upon demand of
Landlord, shall cause each such new partner to execute and deliver to Landlord
an agreement in form satisfactory to Landlord, wherein each such new partner
shall so assume performance of all of the terms, covenants and conditions of
this Lease on Tenant's part to be observed and performed (but neither Landlord's
failure to request any such agreement nor the failure of any such new partner to
execute or deliver any such agreement to Landlord shall vitiate the provisions
of subdivision (iv) of this Section).
64. LANDLORD'S WORK: LANDLORD'S WORK LETTER
64.1 Annexed hereto as Exhibit "B" and made a part hereof is
Landlord's work letter (the "Work Letter") . Tenant agrees that it shall either
approve Landlord's drawings or provide to Landlord on or before February 1,
1993, such drawings and specifications required by Landlord for Tenant's layout,
partitioning, electrical, reflecting ceiling and other installations for the
approval and acceptance of Landlord. At a cost to Tenant of $73,750.00
("Construction Charge"), Landlord shall furnish and install the Work Letter
items described in Exhibit B. To the extent Tenant's drawings require work, the
cost of which is not contemplated by the Work Letter, such work shall be reduced
to an "Extra" or "Change Order" to be executed by both Landlord and Tenant,
which shall indicate the work required, the cost thereof to be paid by Tenant
upon demand, and the additional time required, if any, for completion. The
Construction Charge shall be payable by Tenant to Landlord within thirty (30)
days after the term of the Lease has commenced. Tenant shall be responsible for
any delays in completing the Demised Premises by reason of Tenant's failure to
cooperate with Landlord, Tenant's delays in submitting any drawings or
specifications, or in supplying information, or in approving drawings,
specifications or estimates, or in giving authorizations, or by reason of any
"Extra" or "Change Order" designated by Tenant, or by reason of any changes by
Tenant in any designations previously made by Tenant, or by reason of any
similar acts or omissions of Tenant or by reason of any cause or factor beyond
Landlord's reasonable control, including but not limited to strikes or other
labor disputes, accidents, orders or regulations of any federal, state, county
or municipal authority, delays due to adjustment of insurance claims, lack of
availability of materials, parts or services, acts of God, fire, earthquake,
floods, explosion, action of the elements, war, hostilities, invasion,
insurrection, riot, mob violence, sabotage or by reason of any other cause,
whether similar or not to the foregoing, that is beyond the reasonable control
of Landlord. If the Commencement Date does not occur on or before the Estimated
Commencement Date by virtue of any of the reasons set forth in the immediately
preceding sentence, then the Commencement Date shall be
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deemed, notwithstanding anything contained to the contrary in Article 37, to
have occurred on the Estimated Commencement Date.
65., ECRA COMPLIANCE
65.1 Tenant shall, at Tenant's own expense, comply with the
Environmental Cleanup Responsibility Act, (N.J.S.A. 13:1K-6 et seq.), the
Comprehensive Environmental Response, Compensation & Liability Act (42 U.S.C.
9601 et seq.) and the Spill Compensation and Control Act (N.J.S.A. 58:10-23.11
et seq.) and any and all amendments thereto and the regulations and orders
promulgated thereunder. Tenant shall, at Tenant's own expense, make all
submissions to, provide all information to, and comply with all requirements of,
the Bureau of Industrial Site Evaluation ("the Bureau") of the New Jersey
Department of Environmental Protection and Energy ("NJDEPE"). Should the
Bureau or any other division of NJDEPE determine that a cleanup plan be prepared
and that a cleanup be undertaken because of any spills or discharges of
hazardous substances or wastes in or about the Real Estate caused by Tenant
which occur during the term of this Lease, then Tenant shall, at Tenant's own
expense, prepare and submit the required plans and financial assurances, and
carry out the approved plans. Tenant's obligations under this Article shall
arise if there is any closing, terminating or transferring of operations of an
industrial establishment utilizing the Demised Premises or a transfer of the
Real Estate or any portion thereof which falls under the purview of the statutes
hereinbefore referred.
65.2 At no expense to Landlord, Tenant shall promptly provide all
information requested by Landlord for preparation of non-applicability
affidavits and shall promptly sign such affidavits when requested by Landlord.
Tenant shall indemnify, defend and save harmless Landlord from all fines, suits,
procedures, claims and actions of any kind arising out of or in any way
connected with any spills or discharges of hazardous substances or wastes in or
about the Real Estate caused by Tenant which occur during the term of this
Lease; and from all fines, suits, procedures, claims and actions of any kind
arising out of Tenant's failure to provide all information, make all submissions
and take all actions required by the Bureau or any other division of NJDEPE.
Tenant's obligations and liabilities under this Article shall continue so long
as Landlord remains responsible for any spills or discharges of hazardous
substances or wastes in or about the Real Estate caused by Tenant which occur
during the term of this Lease. Tenant's failure to abide by the terms of this
Article shall be restrainable by injunction.
66. RENEWAL OPTIONS
66.1 Subject to the provisions of section 65.2 below, Tenant shall
have the option to renew this Lease for two (2) additional terms of five (5)
years each (individually, a "Renewal Term", and collectively, the "Renewal
Terms"), which initial Renewal Term shall commence upon the expiration of the
term described in Article 37 of this Lease (the "Initial Term"). The terms,
covenants and conditions during the Initial Term, including but not limited to
the definitions of the First Tax Year and First Operating Year as set forth in
Article 36 hereof, shall be projected and carried over into each Renewal Term,
except as specifically set forth hereinafter.
(a) The Minimum Rent during the initial Renewal Term shall be the
greater of (i) Market Rent (as defined in clause (b) below) or (ii) the Adjusted
Minimum Rent as of the last day of the Initial Term. The Minimum Rent during the
second Renewal Term shall be the greater of (i) Market Rent (as defined in
clause (b) below) or (ii) the Adjusted Minimum Rent as of the last day of the
initial Renewal Term.
(b) "Market Rent" shall mean the fair market rent for the Demised
Premises, as of the commencement date of the applicable Renewal Term (the
"Determination Date"), based upon the rents generally in effect for comparable
office space in the area in which the Real Estate is located. Market Rent (for
the purposes of
20
determining the Minimum Rent only during each Renewal Term) shall be determined
on what is commonly known as "gross" basis; that is, in computing Market Rent,
it shall be assumed that all real estate taxes and expenses for customary
services are included in such Market Rent and are not passed through to the
Tenant as separate additional charges. Notwithstanding the foregoing, the
minimum Rent for each Renewal Term shall be thereafter increased from time to
time as provided in this Lease and the First Tax Year and First Operating Year
for each Renewal Term shall be defined as provided in Article 36 hereof.
(c) Landlord shall notify Tenant ("Landlord's Determination Notice")
of Landlord's determination of the Market Rent within sixty (60) days of the
Determination Date. If Tenant disagrees with Landlord's determination, Tenant
shall notify Landlord ("Tenant's Notice of Disagreement") within fifteen (15)
days of receipt of Landlord's Determination Notice. Time shall be of the essence
with respect to Tenant's Notice of Disagreement, and the failure of Tenant to
give such notice within the time period set forth above shall conclusively be
deemed an acceptance by Tenant of the Market Rent as determined by Landlord and
a waiver by Tenant of any right to dispute such Market Rent. If Tenant timely
gives its Tenant's Notice of Disagreement, then the Market Rent shall be
determined as follows: Landlord and Tenant shall, within thirty (30) days of the
date on which Tenant's Notice of Disagreement was given, each appoint an
Appraiser (hereinafter defined) for the purpose of determining the Market Rent.
An Appraiser shall mean a duly qualified impartial real estate appraiser having
at least ten (10) years' experience in the area in which the Demised Premises
are located. In the event that the two (2) Appraisers so appointed fail to agree
as to the Market Rent within a period of thirty (30) days after the appointment
of the second Appraiser, such two (2) Appraisers shall forthwith appoint a third
Appraiser who shall make a determination within thirty (30) days thereafter. If
such two Appraisers fail to agree upon such third Appraiser within ten (10) days
following the last thirty (30) day period, such third Appraiser shall be
appointed by a presiding Judge of the Superior Court of the State of New Jersey
for the County in which the Real Estate is located. Such two (2) Appraisers or
three (3) Appraisers, as the case may be, shall proceed with all reasonable
dispatch to determine the Market Rent. The decision of such Appraisers shall be
final; such decision shall be in writing and a copy shall be delivered
simultaneously to Landlord and to Tenant. If such Appraisers fail to deliver
their decision as set forth above prior to the commencement of the applicable
Renewal Term, Tenant shall pay Landlord the Adjusted Minimum Rent at the rate as
of the last day of the Initial Term or the initial Renewal Term, as applicable,
until such decision is so delivered. If the Market Rent as determined above is
in excess of the actual rent paid, then Tenant, upon demand, shall pay to
Landlord the difference between the actual rent paid and the Market Rent from
the commencement of the applicable Renewal Term. Landlord and Tenant shall each
be responsible for and shall pay the fee of the Appraiser appointed by them
respectively, and Landlord and Tenant shall share equally the fee of the third
Appraiser. Promptly upon determination of the Market Rent, Tenant shall execute
and deliver a Lease amendment prepared by Landlord setting forth the terms of
the applicable Renewal Term.
66.2 Tenant's option to renew, as provided in Section 65.1 above,
shall be strictly conditioned upon and subject to each of the following:
(a) Tenant shall notify Landlord in writing of Tenant's exercise of
its initial option to renew at least six (6) months, but not more than twelve
(12) months, prior to the expiration of the Initial Term and Tenant shall notify
Landlord in writing of Tenant's exercise of its second option to renew at least
six (6) months, but not more than twelve (12) months prior to the expiration of
the initial Renewal Term;
(b) At the time Landlord receives Tenant's notice as provided in (a)
above, and at the expiration of the Initial Term
21
and the initial Renewal Term, Tenant shall not have been in default under the
terms or provisions of this Lease and the Tenant named on the first and last
page of this Lease shall be in occupancy of the entire Demised Premises;
(c) Tenant shall have no further renewal option other than the
option to extend for the two Renewal Terms as set forth in Section 65.1 above;
(d) This option to renew shall be deemed personal to the Tenant named
on the first and last page of this Lease and may not be assigned;
(e) Landlord shall have no obligation to do any work or perform any
services for the Renewal Terms with respect to the Demised Premises or the
Building which Tenant agrees to accept in their then "as is" condition; and
(f) No later than ten (10) days prior to the commencement of the
applicable Renewal Term, Tenant shall deposit with Landlord such additional sums
as may be required to increase any security deposit then held by Landlord
proportionate to the increase in the Minimum Rent.
67. RIGHT OF FIRST OFFER
67.1 There currently exists 4,507 square feet of space adjacent to
the Demised Premises which is described on Exhibit F attached hereto and made a
part hereof (the "Option Space"). Landlord agrees that if all or any portion of
the Option Space shall become available during the term of this Lease, subject
to the rights of existing tenants, then in such case, before offering the
available Option Space to any other party, Landlord will first offer to Tenant
the right to include the Option Space within the Demised Premises on the
Inclusion Date (hereinafter defined) upon all of the terms and conditions of
this Lease, as if the Option Space had been part of the Demised Premises on the
Commencement Date, except as specifically set forth hereinafter. The Inclusion
Date shall be the date on which Tenant exercises its option pursuant to the
terms of this Article.
(a) The Minimum Rent payable with respect to the Option Space shall
commence on the Inclusion Date and shall be (i) the Market Rent (as defined in
clause (b) below) which shall in no event be less than (ii) the product of (1)
the Adjusted Minimum Rent per square foot with respect to the Demised Premises
on the date Landlord's offer is made and (2) the rentable square foot area of
the Option Space.
(b) "Market Rent" shall mean the fair market rent for the Option
Space as of the Inclusion Date based upon the rents generally in effect for
comparable office space in the area in which the Building is located. Market
Rent (for the purposes of determining the Minimum Rent for the Option Space
only) shall be determined on what is commonly known as "gross" basis; that is,
in computing Market Rent it shall be assumed that all real estate taxes and
customary services are included in such additional charges. Notwithstanding the
foregoing, the Minimum Rent for the Option Space shall be thereafter increased
from time to time as provided in this Lease.
(C) Landlord shall notify Tenant ("Landlord's Determination Notice")
of Landlord's determination of the Market Rent on or before the Inclusion Date.
If Tenant disagrees with Landlord's determination, Tenant shall notify Landlord
("Tenant's Notice of Disagreement") within fifteen (15) days after receipt of
Landlord's Determination Notice. Time shall be of the essence with respect to
Tenant's Notice of Disagreement, and the failure of Tenant to give such notice
within the time period set forth above shall conclusively be deemed an
acceptance by Tenant of the Market Rent as determined by Landlord and a waiver
by Tenant of any right to dispute such Market Rent. If Tenant timely gives its
Tenant's Notice of Disagreement, then the Market Rent shall be determined as
follows: Landlord and Tenant shall, within thirty (30) days after
22
the date on which Tenant's Notice of Disagreement was given, each appoint an
Appraiser (hereinafter defined) for the purpose of determining the Market Rent.
An Appraiser shall mean a duly qualified impartial real estate appraiser having
at least ten (10) years experience in the area in which the Building is located.
In the event that the two (2) Appraisers so appointed fail to agree as to the
Market Rent within a period of thirty (30) days after the appointment of the
second Appraiser, such two (2) Appraisers shall forthwith appoint a third
Appraiser who shall make a determination within thirty (30) days thereafter. If
such two (2) Appraisers so appointed fail to agree upon such third Appraiser
within ten (10) days following the last thirty (30) day period, such third
Appraiser shall be appointed by a presiding Judge of the Superior Court of the
State of New Jersey for the County in which the Building is located. Such two
(2) Appraisers or three (3) Appraisers, as the case may be, shall proceed with
all reasonable dispatch to determine the Market Rent. The decision of such
Appraisers shall be final; such decision shall be in writing and a copy shall be
delivered simultaneously to Landlord and to Tenant. Tenant shall pay Landlord
Adjusted Minimum Rent on the Option Space at the rate set forth in Section
66.1(a) (ii) hereof until such decision is so delivered. If the Market Rent as
determined above is in excess of actual rent paid, then Tenant, upon demand,
shall pay to Landlord the difference between the actual rent paid and the Market
Rent from the Inclusion Date. Landlord and Tenant shall each be responsible for
and shall pay the fee of the Appraiser appointed by them respectively, and
Landlord and Tenant shall share equally the fee of the third Appraiser. Promptly
upon determination of the Market Rent, Tenant shall execute and deliver a Lease
amendment in a form satisfactory to Landlord reflecting the inclusion of the
Option Space within the Demised Premises on the Inclusion Date.
67.2 Landlord shall make the foregoing offer in writing, and Tenant
shall have the right to exercise such option with respect to the Option Space if
Tenant shall not have breached any term or provision of the Lease and the Tenant
named on the first and last page of the Lease is in occupancy of the entire
Demised Premises. Tenant may only exercise such option by written notice
received by Landlord within ten (10) days after Landlord makes such offer to
Tenant. Tenant shall accept the Option Space in its "as is" physical condition
as of the Inclusion Date and agrees that Landlord will not be required to do
any work or perform any services therein. If Tenant does not accept the offer
made by Landlord pursuant to the provisions of this Article 66 with respect to
the Option Space, Landlord shall be under no further obligation to Tenant with
respect to the Option Space or any part thereof and Tenant shall have forever
waived and relinquished its right to the Option Space and any part thereof and
Landlord shall at any and all times thereafter be entitled to lease such space
in whole or in part, or in whole or in parts in conjunction with any other
space, to others at such rental and upon such terms and conditions as Landlord,
in its sole discretion may desire whether such rental terms, provisions and
conditions are the same as those offered to Tenant or more or less favorable.
Tenant agrees not to acquire the Option Space pursuant to this Article 66 for
the primary purpose of subletting or otherwise disposing of the same or any part
thereof to others.
67.3 If the Option space shall not be available for Tenant's
occupancy on the Inclusion Date for any reason including the holding over of the
prior tenant, then Landlord and Tenant agree that the failure to have such
Option Space available for occupancy by Tenant shall in no way affect the
validity of this Lease or the inclusion of the Option Space within the Demised
Premises as of the Inclusion Date or the obligations of Landlord and Tenant
hereunder, nor shall the same be construed in any way to extend the term of this
Lease. Within ten (10) days after Tenant's exercise of this option for the
Option Space, Tenant shall deposit with Landlord such additional sums as may be
required by Landlord to increase the security deposit, if any, then held by
Landlord proportionate to the increase in Minimum Rent. Tenant's rights under
this Article shall be deemed personal to the Tenant named on the first and last
page of this Lease and may not be assigned.
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68. EAGLE ROCK MEMBERSHIP
68.1 Provided Tenant has not (a) breached any term of this Lease, (b)
assigned the Lease or (c) sublet all or any part of the Demised Premises,
Landlord shall reimburse Tenant for the documented and out-of-pocket costs
Tenant incurs for any initial membership dues to the Eagle Rock Club located at
0 Xxxxxx Xxxx Xxxx, Xxxxxxxx, Xxx Xxxxxx for four (4) people covering a period
not exceeding the Initial Term. If the Lease expires or is terminated prior to
the expiration of the Initial Term, Landlord, not Tenant, shall be entitled to
any prorated refund of membership dues paid for any period beyond the early
expiration or termination of the Lease.
IN WITNESS WHEREOF, Landlord has signed this Lease and this Rider, and
Tenant by its proper corporate officers has signed this Lease and this Rider
this 2nd day of April, 1993.
LANDLORD:
ATTESTED BY: 5 XXXXXX ASSOCIATES
By: 5 Xxxxxx Farm Corp.,
General Partner
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------- ---------------------------
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Assistant Secretary Vice President
APPLY CORPORATE SEAL HERE
AGENT FOR LANDLORD
ATTESTED BY: BELLEMEAD MANAGEMENT CO., INC.
/s/ Xxxxxx X. Xxxxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------- ---------------------------
Xxxxxx X. Xxxxxxx Xxxxx X. Xxxxxxxx
Assistant Secretary Vice President
APPLY CORPORATE SEAL HERE
TENANT:
ATTESTED BY: NEW JERSEY MORTGAGE AND INVESTMENT
CORP.
/s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
---------------------------- ------------------------------------
Name: Xxxx Xxxxx
-----------------------
(Please Print) Name: Xxxx Xxxxx
--------------------------
Title: Corporate (Assistant) (Please Print)
Secretary
Title: President
-------------------------
(Please Print)
APPLY CORPORATE SEAL HERE
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