<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-QSB
[X] QUARTERLY REPORT UNDER SECTION 13 or 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the quarter ended March 31, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number: 0-21645
Tellurian, Inc.
-------------------------------------------------
(Exact name of Registrant as specified in its charter)
Delaware 22-3451918
- ----------------------------- -------------
(State or other jurisdiction) (IRS Employer
Incorporation or
Organization No.)
300K Route 17 South
Mahwah, New Jersey 07430
- ---------------------------------------- -------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number,
including area code: (201) 529-0939
----------------
None
-------------------------------------------------------------------------------
Former name, former address and former fiscal year if changed since last report
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days. Yes x . No .
--- ---
The number of shares issued of the Registrant's Common Stock, as of May 13, 1997
was 3,025,000 shares of Common Stock.
<PAGE>
INDEX
Page
Number
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Balance Sheets.................................................3
March 31, 1997 (Unaudited) and
December 31, 1996
Consolidated Statements of Operations.......................................4
Three Months ended March 31, 1997
and March 31, 1996 (Unaudited)
Consolidated Statements of Cash Flows.......................................5
Three Months ended March 31, 1997
and March 31, 1996 (Unaudited)
Notes to Consolidated Financial Statements (Unaudited)......................6
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations.........................................................8
PART II. OTHER INFORMATION.................................................13
SIGNATURES.................................................................14
<PAGE>
TELLURIAN, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, 1997 December 31, 1996
(Unaudited) (a)
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash $ 519,148 $1,761,186
Marketable Securities 1,971,250 968,722
Accounts Receivable, net of allowance
for doubtful accounts of $115,000
and $115,000, respectively 67,805 19,362
Inventories 557,851 287,851
Prepaid Consulting Fees 74,625 74,625
Prepaid Expenses and Other Current Assets 23,138 13,856
---------- ----------
Total Current Assets 3,213,817 3,125,602
PROPERTY AND EQUIPMENT- at cost
less accumulated depreciation 349,510 206,176
---------- ----------
OTHER ASSETS:
Deferred Costs - 50,000
Marketable Securities - 1,006,664
Security Deposits 85,572 47,750
Prepaid Consulting Fees 43,531 62,187
---------- ----------
Total Other Assets 129,103 1,166,601
---------- ----------
Total Assets $3,342,920 $4,292,203
=========== ===========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts Payable $ 3,793 $ 49,754
Accrued Expenses 91,428 60,020
Payroll Payable - 98,399
Payroll Taxes Payable 8,096 34,494
Consulting Fees Payable 32,644 46,594
Notes Payable--Related Parties 496,736 496,736
Interest Payable--Related Parties 323,856 315,306
Deferred Revenue 56,008 80,448
---------- ----------
Total Current Liabilities 1,012,561 1,181,751
---------- ----------
EQUITY
STOCKHOLDERS' EQUITY:
Common Stock--$.01 par value
Authorized - 10,000,000 shares
Issued & Outstanding - 3,025,000 shares 30,025 30,025
Additional Paid-in Capital 6,345,387 6,345,387
Accumulated Deficit (3,695,544) (3,058,784)
---------- ----------
Total Stockholders' Equity 2,679,868 3,316,628
---------- ----------
Total Liabilities and Stockholders' Equity $3,692,429 $4,498,379
========== ==========
</TABLE>
(a) The balance sheet at December 31, 1996 has been derived from
audited financial statements at that time.
The accompanying notes are an integral part of the financial statements.
3
<PAGE>
TELLURIAN, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF OPERATIONS
(Unaudited)
Three Months Ended
March 31
1997 1996
REVENUES $ 81,285 $ 54,898
COST OF GOODS SOLD 63,662 57,704
----------- -----------
GROSS PROFIT 17,623 (2,806)
----------- -----------
OPERATING EXPENSES:
Research and Development 204,087 180,546
Selling 115,256 27,211
General and Administrative 372,837 114,538
----------- -----------
692,180 322,295
----------- -----------
LOSS FROM OPERATIONS $ (674,557) $ (325,101)
----------- -----------
OTHER INCOME AND EXPENSES:
Other Income 50,097 7,539
Interest Expense 0 (11,795)
Interest Expense--Related Parties (12,300) (14,826)
----------- -----------
37,797 (19,082)
----------- -----------
NET LOSS $ (636,760) $ (314,183)
=========== ===========
NET LOSS PER COMMON SHARE $ (0.21) $ (0.22)
=========== ===========
WEIGHTED AVERAGE NUMBER OF
COMMON SHARES OUTSTANDING 3,025,000 1,600,000
=========== ===========
The accompanying notes are an integral part of the financial statements
4
<PAGE>
TELLURIAN, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
March 31,
1997 1996
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES
Net Loss $( 636,760) $( 344,183)
Adjustments to Reconcile Net Loss to Net Cash
Used in Operating Activities:
Depreciation and Amortization 13,674 2,842
Reclassification of Marketable Securities 4,136 --
Changes in Assets and Liabilities
Accounts Receivable (48,443) --
Inventories (270,000) (31,883)
Prepaid Expenses and Other Current Assets (9,282) 7,811
Deferred Costs 50,000 (125,383)
Security Deposits (37,822) --
Prepaid Consulting Fees 18,656 --
Cash Overdraft 31,080
Accounts Payable (45,961) 21,609
Accrued Expenses 31,408 (68,276)
Payroll Payable (98,399) 73,503
Payroll Taxes Payable (26,398) (129,501)
Consulting Fees Payable (13,950) 24,600
Interest Payable--Related Parties 8,550 26,621
Deferred Revenue (24,440) --
------------ ------------
NET CASH USED IN OPERATING ACTIVITIES (1,085,031) (385,777)
------------ ------------
CASH FLOWS USED IN INVESTING ACTIVITIES
Purchases of Property and Equipment (157,007) (6,680)
------------ ------------
NET CASH USED IN INVESTING ACTIVITIES (157,007) (6,680)
------------ ------------
NET CASH FROM FINANCING ACTIVITIES:
Proceeds from issuance of warrants in connection
with private placement 28,000
Proceeds from notes payable--related parties 5,565
Repayments from notes payable--related parties (100,000)
Repayments of notes payable--other 351
Proceeds from long-term debt 528,000
Payments of deferred offering costs (108,589)
NET CASH USED IN
FINANCING ACTIVITIES -- 353,327
NET CHANGE IN CASH (1,242,038) (39,130)
CASH--Beginning 1,761,186 39,130
------------ ------------
CASH--Ending $ 519,148 $ --
============ ============
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash Paid for Interest $ 3,750 $ 6,000
Cash Paid for Income Taxes 150 --
</TABLE>
The accompanying notes are an integral part of the financial statements
5
<PAGE>
TELLURIAN, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1997
(Unaudited)
NOTE 1--Presentation Basis
The attached summarized financial information does not include all
disclosures required to be included in a complete set of financial statements
prepared in conformity with generally accepted accounting principles. Such
disclosures were included with the financial statements of the Company at
December 31, 1996, which were included in its Form 10-K filing dated April 15,
1997. Such statements should be read in conjunction with the data herein.
NOTE 2 - Formation of Subsidiary
In March 1997, the Company formed a subsidiary in the Province of
Ontario, Canada, in which the Company holds an 87.5 percent interest. No
minority interest in this corporation at March 31, 1997 has been recognized
since it has been deemed to be immaterial.
NOTE 3 - Interim Consolidated Financial Statements
The consolidated balance sheet of the Company at March 31, 1997 and the
consolidated statements of operations and cash flows for the three months ended
March 31, 1997 and 1996 are unaudited but include all adjustments which, in the
opinion of management, are necessary for the fair presentation of the Company's
financial position and results of operations for the periods then ended. All
such adjustments are of a normal recurring nature. The results of operations for
the interim periods are not necessarily indicative of the results of operations
for a full fiscal year.
NOTE 4 - Marketable Securities
At December 31, 1996, the Company had classified all of its marketable
securities as held-to-maturity. During the quarter ended March 31, 1997,
circumstances changed in that the Company now intends to sell these securities
at some point during this fiscal year in order to finance its planned business
activities. Accordingly, the securities have been reclassified as
"available-for-sale."
6
<PAGE>
TELLURIAN, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MARCH 31, 1997
(Unaudited)
NOTE 5 -- Loss Per Common Share
Net loss per common share is based on the weighted average number of
common shares outstanding during the period.
7
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS OF THE COMPANY AND
ITS SUBSIDIARY
RECENT DEVELOPMENTS
Cyberport
During the first quarter of 1997, the Company initiated the creation of
a controlled subsidiary corporation in Ontario, Canada. The Niagara subsidiary
is 87.5% owned by Tellurian and 12.5% owned by an unrelated party. It will
develop and operate a Tourist Entertainment Center ("TEC") in Niagara Falls,
Ontario, Canada (hereinafter referred to as "Cyberport"). This center will
operate from a 40,000 square foot building which the Niagara subsidiary leased
during April 1997 in what is commonly referred to as the "Casino District" (also
known as "Clifton Hill") of Niagara Falls. Cyberport, which is a TEC, differs
from the more common Location Based Entertainment Center ("LBE"), in that the
market of a TEC is intended to be the family vacationer rather than the local,
repeat customer.
The Company plans to open this facility during the latter part of the
second quarter of 1997 in order to take advantage of the significant seasonal
traffic flow in the Niagara area during the summer months. The Company believes
its ability to complete this facility and operate it successfully depends on
elements both within and outside of its control, including the success of its
products incorporated into this venture as well as the potential competition
which it will face from existing and new entrants into the tourism market in the
Niagara Falls area. Some of the potential competitors have more experience than
the Company in opening and managing tourist facilities and many have more
financial resources than the Company. There can be no assurance that the project
will open and perform successfully.
The Company expects that a significant portion of its immediate future
revenues are dependent upon the successful operation of the Cyberport facility
and the likely sales leads for EAGLE that this venture may generate.
8
<PAGE>
Voyager
In January 1996, Tellurian signed a Technology Transfer Agreement with
Voyager (a Taiwanese corporation) pursuant to which Tellurian granted Voyager an
irrevocable, exclusive, assignable, fully paid license (the "License") to be the
exclusive supplier of the EAGLE Image Generator in various Asian and Mid-East
countries. In consideration of the License and technology transfer, Voyager
agreed to pay Tellurian $1,500,000, of which Tellurian has agreed that Voyager
will pay $650,000 to two parties unrelated to Tellurian for their services in
connection with such contract resulting in a net amount of $850,000 to
Tellurian. As of September 30,1996, Tellurian had recognized revenues totaling
approximately $660,000 of the above referenced $850,000 from Voyager. In
addition, Voyager purchased certain hardware items valued at approximately
$60,000 in order to allow them to test their applications. Therefore, the total
net amount due Tellurian under this contract is approximately $910,000. As of
March 31, 1997, Tellurian received payments totaling $550,000.
Management has taken steps to enforce Tellurian's rights under its
contractual arrangements with Voyager. However, as of the filing date of this
report, Voyager has not responded to Tellurian's demand for payment. Management
is currently evaluating any options remaining open to it to enforce its rights
of collection.
Plan of Operation
The Company plans to focus its efforts on the following three areas:
(i) entering into joint ventures or revenue sharing agreements with third
parties for the purpose of owning, operating, and/or having an interest in one
or more TECs or LBEs for the sale and/or use of its virtual reality game units;
(ii) increasing revenues through marketing efforts of its new EAGLE product;
(iii) developing its virtual reality helmet and motion system and establishing a
virtual reality showplace for demonstrations of Tellurian's products.
The Company intends to pursue the development of other Cyberport
facilities once the initial location is operational. Management believes that
the Cyberport concept represents the best available means of marketing its
existing products as well as providing a dependable revenue stream from
admission fees of clients using the Cyberport facilities. The initial facility
in Niagara Falls will also serve as the demonstration center for the Company.
9
<PAGE>
Marketing of the new EAGLE image generator will be accomplished by
directing efforts towards three different customer groups: (i) the training and
simulation market where Tellurian has been selling its AT-200 unit; (ii)
pursuing the Virtual Reality ("VR") game developer market through trade show
exhibits, advertisements and newsletters; and (iii) pursuing the inter-active
thrill-ride market. The Company intends to expand its current customer list as
several manufacturers move into this new type of themed adventure. Trade shows,
marketing brochures, and personal contacts will be used to gain customers.
The Company is engaged and intends to continue to engage in ongoing
research and development efforts to expand and enhance the technical
capabilities, design features and range of uses of its products.
Tellurian intends to utilize the EAGLE technology to build its own
complete game units and use these units to establish one or more TEC's or LBE's
to be owned solely by Tellurian or jointly with others. Depending upon the cash
requirements of the entertainment center, Tellurian may finance it utilizing a
portion of the proceeds of its recently completed offering or Tellurian may
enter into joint venture or revenue sharing agreements with third parties such
as existing owners and operators of such centers. In some cases, the Company may
provide the equipment for the facility and assist in the designing, developing,
construction and theming of the center. The Company has no experience in owning,
financing, and operating such centers, and is likely to be dependent in such
areas upon third parties to assist it or participate with it in establishing
such centers. There can be no assurances that Tellurian will be successful in
establishing or entering into revenue sharing agreements for one or more such
centers and deriving operating profits from such operations.
The Company has estimated the net proceeds from its recently completed
offering together with revenues from operations will be sufficient to meet the
Company's cash requirements for a period of between 12 and 15 months following
the date hereof. However, there can be no assurance that unexpected future
developments may result in the Company requiring additional financing, and that
if required, additional financing will be available to the Company.
10
<PAGE>
Results of Operations
Three Months Ended March 31, 1997 vs. March 31, 1996
Tellurian's net sales for the three months ended March 31, 1997 were
$81,825, an increase of $26,387 or 48.1% over the comparable period of the prior
year. For the three months ended March 31, 1997, the Company's gross profit was
$17,623 as compared to a gross loss of $2,806 for the comparable period of the
prior year. Revenues derived from the sale of image generators and ancillary
software increased by $111,058 for the three months ended March 31, 1997, as
compared to the comparable period of the prior year. Such increase was primarily
due to the delivery of a large order to a maritime training and simulation
facility.
Tellurian's research and development activities for the three months
ended March 31, 1997 was $204,087, representing an increase of $23,541 over the
respective period of the prior year. The increase in research and development
activities related to Tellurian's development of the EAGLE, Tellurian's new
image generator product specifically designed for the virtual reality
entertainment market. Research and development activities include costs of the
Company's product design, quality insurance, engineering support activities and
microcode consulting.
Selling, general and administrative expenses for the three months ended
March 31, 1997 were $488,093, an increase of $346,344 or approximately 244% from
the comparable period of the prior year. The increases in selling, general and
administrative expenses were substantially due to costs incurred in connection
with the development of the Cyberport facility, increased costs of professional
services related to the requirements imposed by virtue of the Company's recently
concluded Initial Public Offering, rent, and the employee medical plan.
Selling, general and administrative expenses expressed as a percentage
of sales was approximately 600% for the three months ended March 31, 1997, an
increase of approximately 342% from the comparable period of the prior year.
For the three months ended March 31, 1997, interest expense was $12,300
as compared to $26,621 for the comparable period of the prior year. This
decrease was due to the significant repayments of debt made by following the
completion of the Company's Initial Public Offering.
Tellurian's net loss for the three months ended March 31, 1997 was
$636,760 as compared to $344,183 for the comparable period of the prior year.
The increase in the net loss was primarily due to increases in levels of
activity in the development of the EAGLE and the costs associated with the
start-up of Cyberport Niagara, Inc.
11
<PAGE>
Liquidity and Capital Resources
In December 1995 and January 1996, the Company raised approximately
$675,000 from the sale of promissory notes and 3,000,000 warrants which are
automatically convertible into 3,000,000 warrants identical to those sold in
Tellurian's public offering. In June 1996, the Company received proceeds of
approximately $149,000 from the sale of its promissory notes, $25,000 of which
automatically converted into 25,000 shares of the Company's Common Stock upon
the completion of its public offering in November 1996.
In November 1996, the Company sold 1,400,000 shares of its Common Stock
at an offering price of $5.00 per share and 2,127,500 Common Stock Purchase
Warrants at an offering price of $.25 per share. The Warrants are exercisable
over a period of five years expiring in November, 2001 at an exercise price of
$6.00 per share. The Company received net proceeds of approximately $6,200,000
from the offering. The Company believes that the proceeds of such offering
combined with cash from operations will be sufficient to meet its cash and
liquidity needs over the next twelve to fifteen months.
During the three months ended March 31, 1997 and 1996, net cash of
$1,085,031 and $385,777, respectively, was used in operating activities. During
the three months ended March 31, 1997 and 1996, net cash of $157,007 and $6,680,
respectively, was used in investing activities to purchase property and
equipment. During the three months ended March 31, 1997 and 1996, net cash was
provided by financing activities totaling $0 and $353,327, respectively.
12
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings: None
Item 2. Changes in Securities: None
Item 3. Defaults Upon Senior Securities: None
Item 4. Submission of Matters to a Vote of Security Holders: None
Item 5. Other Information: None
Item 6. Exhibits and Reports on Form 8-K:
(a) Exhibits
10.1 -Lease with Jolin Realty
10.2 -Consultant Agreement
10.3 -Employment Contract with Robert Winterford
10.4 -Purchase Agreement Option with Niacan Ltd.
10.5 -Intellectual Property Agreement with Eye Wonder
11 -Earnings per Share (See Income Statement)
27 -Financial Data Schedule
(b) No reports on Form 8-K were filed during the
quarter ended March 31, 1997.
13
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
TELLURIAN, INC.
-----------------------
(Registrant)
/s/ Stuart French
Dated: May 14, 1997 -------------------------------
Stuart French, President and
Director
/s/ Michael Hurd
-------------------------------
Michael Hurd, Vice President of
Administration and Finance
and Chief Accounting Officer
and Director
14
<PAGE>
LEASE AGREEMENT
between
JOLIN REALTY, LANDLORD
and
TELLURIAN, INC., Tenant
Dated: November 12, 1996
<PAGE>
INDEX
PARAGRAPH 1 DEFINITIONS 1
PARAGRAPH 2 DESCRIPTION OF DEMISED PREMISES 3
PARAGRAPH 3 COMMENCEMENT OF TERM 3
PARAGRAPH 4 TERM 3
PARAGRAPH 5 RENT AND OTHER CHARGES 4
PARAGRAPH 6 USE OF DEMISED PREMISES 6
PARAGRAPH 7 RIGHT TO INSPECT AND REPAIR 7
PARAGRAPH 8 REPAIRS 7
PARAGRAPH 9 UTILITIES 8
PARAGRAPH 10 ALTERATIONS 8
PARAGRAPH 11 SIGNS 9
PARAGRAPH 12 ASSIGNMENT 9
PARAGRAPH 13 COMPLIANCE AND ISRA AND OTHER
ENVIRONMENTAL LAWS 11
PARAGRAPH 14 DAMAGE BY FIRE OR OTHER CASUALTY 13
PARAGRAPH 15 EMINENT DOMAIN 14
PARAGRAPH 16 WAIVER OF LANDLORD'S LIABILITY 15
PARAGRAPH 17 INSURANCE TO BE PROVIDED BY TENANT 15
PARAGRAPH 18 WAIVER OF SUBROGATION 16
PARAGRAPH 19 INDEMNITY 16
PARAGRAPH 20 DEFAULT OF TENANT 17
PARAGRAPH 21 LANDLORD'S REMEDIES ON DEFAULT OF TENANT 18
PARAGRAPH 22 SUBORDINATION OF LEASE 20
PARAGRAPH 23 EASEMENTS 20
PARAGRAPH 24 LANDLORD'S INABILITY TO PERFORM 20
PARAGRAPH 25 NO PERSONAL LIABILITY OF LANDLORD 20
PARAGRAPH 26 SUBMISSION NOT AN OFFER TO LEASE 21
<PAGE>
PARAGRAPH 27 TENANT'S ESTOPPEL 21
PARAGRAPH 28 FINANCIAL AND OTHER INFORMATION 21
PARAGRAPH 29 LANDLORD'S RIGHT TO SHOW PREMISES 21
PARAGRAPH 30 QUIET ENJOYMENT 21
PARAGRAPH 31 NO ABATEMENT OF RENT 22
PARAGRAPH 32 ACCORD AND SATISFACTION 22
PARAGRAPH 33 EFFECT OF WAIVERS 22
PARAGRAPH 34 LEASE CONDITION 22
PARAGRAPH 35 MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE 22
PARAGRAPH 36 LANDLORD'S RESERVED RIGHT 23
PARAGRAPH 37 CORPORATE/PARTNERSHIP AUTHORITY 23
PARAGRAPH 38 RECORDING 23
PARAGRAPH 39 NUMBER AND GENDER 23
PARAGRAPH 40 COMPLIANCE WITH RULES AND REGULATIONS 23
PARAGRAPH 41 SECURITY DEPOSIT 23
PARAGRAPH 42 RIGHT TO CURE TENANT'S BREACH 24
PARAGRAPH 43 MECHANIC'S LIENS 24
PARAGRAPH 44 EXTENSION OF TERM 25
PARAGRAPH 45 PARKING SPACES 25
PARAGRAPH 46 LANDLORD'S LIABILITY FOR LOSS OF PROPERTY 25
PARAGRAPH 47 PARTIAL INVALIDITY/GOVERNING LAW 25
PARAGRAPH 48 BROKER 25
PARAGRAPH 49 COMPLETE AGREEMENT 26
PARAGRAPH 50 PARAGRAPH HEADINGS 26
PARAGRAPH 51 LANDLORD'S LIEN 26
PARAGRAPH 52 NOTICE 26
<PAGE>
PARAGRAPH 53 WAIVER OF TRIAL BY JURY 26
PARAGRAPH 54 APPLICABILITY TO HEIRS AND ASSIGNS 26
PARAGRAPH 55 EXPIRATION OF TERM - RETURN OF DEMISED
PREMISES IN GOOD CONDITION 27
PARAGRAPH 56 HOLDOVER TENANCY 27
PARAGRAPH 57 ADDITIONAL COVENANTS 27
PARAGRAPH 58 MISCELLANEOUS 29
EXHIBIT A FLOOR PLAN
EXHIBIT B COMMENCEMENT DATE CERTIFICATE
EXHIBIT C RULES AND REGULATIONS
<PAGE>
LEASE AGREEMENT
LEASE AGREEMENT, dated as of the 12th day of November 1996, between
JOLIN REALTY, whose address is 75 Portland Avenue, P.O. Box 39, Bergenfield, New
Jersey 07621 ("Landlord") and TELLURIAN, INC., a Delaware corporation whose
address is 15 Industrial Avenue, Upper Saddle River, New Jersey 07458
("Tenant").
WITNESSETH:
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Landlord and Tenant agree as follows:
1. DEFINITIONS. The following terms whenever used in this Lease shall
have only the meanings set forth in this Paragraph 1, unless such meanings are
expressly modified, limited or expanded elsewhere herein. Other terms are
defined elsewhere in this Lease.
(1) Building shall mean 300 Route 17 South, Mahwah, New
Jersey.
(2) Broker shall mean: Burns Commercial Realty, Inc. and
Provest, Inc.
(3) Commencement Date shall mean: the "Date of Completion" as
defined in Article 3 hereof
(4) Demised Premises shall mean: A portion of the building
located at 300K Route 17 South, Mahwah, New Jersey, known
as 300K Route 17 South, consisting of approximately
10,312 square feet, as more particularly shown on the
attached plan designated as Exhibit "A." The Demised
Premises are also known as the "Premises".
(5) Exhibits: The following Exhibits attached to this Lease
are incorporated herein and made a part hereof.
Exhibit A Floor Plan
Exhibit B Commencement Date Certificate
Exhibit C Rules and Regulations
(6) Basic Rent shall mean: SEVEN HUNDRED FIFTY THOUSAND AND
00/100 ($750,000.00) DOLLARS for the Term, payable as
follows:
1
<PAGE>
(A) Basic Rent: SEVENTY FIVE THOUSAND AND 00/100
($75,000.00) DOLLARS.
(B) Monthly Basic Rent: SIX THOUSAND TWO HUNDRED
FIFTY AND 00/100 ($6,250.00) DOLLARS.
(7) Force Majeure shall mean and include: Situations beyond
Landlord's control, including by way of example and not
by way of limitation, acts of God, accidents, repairs,
strikes, shortages of labor, supplies or materials
(provided that Landlord will make a good faith effort to
find substitute materials and supplies in the event of
shortages), inclement weather or, where applicable, the
passage of time while waiting for an adjustment of
insurance proceeds.
(8) Landlord shall mean: JOLIN REALTY, a New Jersey
Partnership with offices at 75 Portland Avenue, P.O. Box
39, Bergenfield, New Jersey 07621
(9) Parking Spaces shall mean: A total of thirty (30) parking
spaces.
(10) Property shall mean: the entire parcel of land and
improvements consisting of Block 137, lot 1 of which the
Demised Premises are a part.
(11) Permitted Use shall mean: Office and Light Electronic
Assembly.
(12) Rent shall mean: Basic Rent and Additional Rent.
(13) Security Deposit shall mean: Six (6) months' Basic Rent.
(14) Standard Industrial Classification ("SIC") Number of
Tenant is 3570. The SIC Numbers are described in the
Standard Industrial Classification Manual (1987) of the
Office of Management and Budget, Executive Office of the
President of the United States.
(15) Tenant shall mean: TELLURIAN, INC.
(16) Tenant's Property Expense Rent Share shall mean: 12.9% of
operating expenses of the Property to be paid by Tenant
during the term of the Lease, as more fully set forth in
Paragraph 5(B).
(17) Term shall mean: Ten (10) years from the Commencement
Date.
(18) Termination Date shall mean: The day before the tenth
anniversary of the Commencement Date.
2
<PAGE>
2. DESCRIPTION OF DEMISED PREMISES. Landlord hereby leases to Tenant,
and Tenant hereby hires from Landlord, the Demised Premises, as shown on the
plan initiated by the parties hereto marked Exhibit A annexed hereto and made
part hereof in the Building which is situated on the Property.
3. COMMENCEMENT OF TERM.
(A) Landlord agrees that, Landlord's expense, prior to
Commencement Date, it will construct and improve the Demised Premises
substantially in accordance with the plans and specifications attached hereto as
Exhibit A (hereinafter "Landlords Work"). Landlord shall have no obligations to
perform any other work in the Demised Premises, and Tenant specifically agrees
that it will accept the Demised Premises in "AS IS" condition, as modified by
the performance of Landlord's Work.
(B) Lease Commencement shall occur upon the earliest of (a) when
Landlord has substantially completed all the work to be done by Landlord in
accordance with Exhibit A, subject to "punchlist" items which do not materially
interfere with Tenant's use and enjoyment of the Demised Premises, and Landlord
has delivered to Tenant a temporary or final Certificate of Occupancy, or (b)
upon occupancy of the Demised Premises by Tenant (hereinafter "Date of
Completion"). Tenant will execute the Commencement Date Certificate attached
hereto as Exhibit B, within 15 days after Landlord's request for the purpose of
establishing the Commencement Date of the Lease.
(C) Landlord's Work shall be completed in a timely manner from the
date Landlord obtains a building permit, provided, however, that said time of
completion shall be extended by and delay occasioned by scarcity of materials,
installation of improvements requested by Tenant, approval of plans by Tenant,
strikes, labor disputes, weather conditions which inhibit construction, fire or
other casualties, governmental restrictions and regulations, delays in
transportation and any other construction delays beyond the reasonable control
of the Landlord. In the event the time for completion of Landlord's Work is
extended by reason of any of the foregoing, then the time for completion will be
extended by the period of delay caused by any of the foregoing. If Landlord
shall be unable to give possession because a Certificate of Occupancy or any
other required certificate, permit or variance has not been procured, or because
of the holding over or retention of possession of any tenant or occupant, or
because construction, repairs, improvements or decorations of the Demised
Premises or Building required to be performed by Landlord are not completed in
the manner set forth in this Lease or for any other reason, Landlord shall not
be subject to any liability for the failure to give possession. No such failure
to give possession shall in any other respect affect the validity of this Lease
or the obligations of Tenant hereunder.
4. TERM The Demised Premises are leased for the Term to commence at
12:01 a.m. on the Commencement Date and to end at 11:59 p.m. on the Termination
Date, or on such other date as the Term may expire or be terminated pursuant to
the revisions of the Lease or pursuant
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to law, at which time Tenant shall deliver up the Demised Premises in accordance
with all of the terms hereof.
5. RENT AND OTHER CHARGES.
(A) Basic Rent. Tenant shall pay to Landlord during the Term,
the Basic Rent as defined in Paragraph 1 (hereinafter called "Basic Rent"),
payable in such coin or currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts.
The Basic Rent shall accrue at the Yearly Rent as defined in Paragraph 1 and
shall be the Term as Monthly Basic Rent as defined in Paragraph 1 and shall be
payable in advance on the first day of each calendar month during the Term as
Monthly Basic Rent as defined in Paragraph 1, in accordance with the provisions
of this Lease herein set forth, except that if the Commencement Date is not the
first (1st) day of the month, Rent for the month in which the Commencement Date
occurs shall be prorated to the end of the month, the first (1st) full monthly
installment of Rent shall be due on the first day of the next month and after
the expiration of the number of years in the Term of this Lease, the Term shall
expire on the last day of the same month in which the Commencement Date of the
Term occurred, it being the intention of the parties that the Term expire on the
last day of the month. Landlord acknowledges receipt from Tenant of the first
installment of Monthly Basic Rent by check, subject to collection, for Basic
Rent for the first month of the Term.
(B) Property Expense Rent. It is expressly agreed that Tenant
will pay, in addition to the Basic Rent, an Additional Rent to cover Tenant's
share of the operating expenses of the Property as defined in Paragraph 1, for
each Calendar Year (or proportionate part thereof if the Lease was not in effect
during the entire Calendar Year), during the Term of the Lease (hereinafter
"Tenant's Property Expense Rent Share"). The term "Property Expense Rent" or
"Property Expense" shall mean all costs incurred by Landlord in connection with
the operation and maintenance of the Property, including but not limited to each
of the categories of expense enumerated as follows:
(i) Real Estate Taxes shall include but not be limited to
any tax or assessment levied, assessed or imposed anytime upon or against the
Property, or any part thereof, Landlord, or upon the Rent including but not
limited to, Real Estate, City, County, Borough, Township, school and transfer
taxes, or taxes, assessments or charges levied, imposed or assessed against the
Property by any other taxing authority, whether general or specific, ordinary or
extraordinary; foreseen or unforeseen. If, due to a future change in the method
of taxation, any franchise, income or profit tax shall be levied against
Landlord in substitution for, or in lieu of, or in addition to, any tax which
would otherwise constitute a Real Estate Tax, such franchise, income or profit
tax shall be deemed to be a Real Estate Tax for the purposes hereof.
(ii) Common Area Expenses shall include but not be limited
to all costs and expenses incurred by Landlord for operating, maintaining,
repairing, and/or replacing any and all, or any part of the common area of the
Property (or installation therein, thereon, thereunder or
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thereover) including but not limited to parking area, sidewalks, curbs, grounds,
water lines, electric lines, gas lines, sanitary sewer line, and storm water
lines, and all costs and expenses incurred by Landlord for landscaping and the
removal of snow, ice and debris.
(iii) Common Utility Expenses shall include but not be
limited to, all costs and expenses incurred by Landlord for water, including
standby sprinkler charges, sewer, gas and electricity and any other utility
charges for utilities servicing the common area of the Property.
(iv) Repair and Maintenance Expenses shall include but not
be limited to, all costs and expenses incurred by Landlord for repair and
maintenance of all or any part of the Property, including any expense attributed
to costs incurred by Landlord for any capital improvements or structural repairs
to the common area of Property required by any changes in laws, ordinances,
rules or regulations that were not in effect when the Property was constructed,
but shall specifically exclude all or any part of the Property which is the
obligation of any Tenant to repair and maintain.
(v) Insurance Expense shall include but not be limited to,
all costs and expense for insurance, including fire and extended coverage and
public liability and any rental insurance, all risk insurance or any other
insurance which Landlord may from time to time carry for Landlord's benefit. In
the event Tenant's use of the Demised Premises results in an insurance rate
higher than normally applicable rates, Tenant shall be fully responsible for the
expense differential caused by Tenant's use.
(C) Calendar Year. As used herein, Calendar Year shall mean the
twelve (12) month period commencing January 1 and ending December 31, provided,
however, Landlord may, in its sole discretion, upon ten (10) days notice to
Tenant, change the Calendar Year period.
(D) Payment of Property Expense Rent. Landlord shall upon final
determination of Property Expenses at the end of each Calendar Year, provide
tenant written notice of such final determination. Tenant shall pay its Property
Expense Rent in full no later than thirty (30) days after notice by Landlord of
the amount thereof. If requested by Landlord, Tenant shall pay its Property
Expense Rent in twelve (12) monthly installments on the first day of each month
on an estimated basis as determined by Landlord. Any amount paid by Tenant which
exceeds the actual amount due shall be credited to the next succeeding payment
due pursuant hereto. If Tenant has paid less than the actual amount due, Tenant
shall pay the difference to Landlord within thirty (30) days after receipt of
Landlord's request therefor. During the first and last years of the Term, the
amount payable by Tenant hereunder shall be prorated for the Fraction of the
Calendar Year included in the Term. In addition to any other administrative and
overhead charges which Landlord is entitled to collect from Tenant as Property
Expenses and a charge of fifteen (15%) percent of such Property Expenses and
shall be added to Tenant's Expense Rent Share to cover Landlord's administrative
overhead charges.
(E) Books and Records. Landlord shall maintain books of account
which shall be
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open to Tenant and its representatives during normal business hours so that
Tenant can determine that such Property Expenses have been paid or incurred. Any
disagreement with respect to any one or more of said charges if not
satisfactorily settled between landlord and Tenant shall be referred by either
party to an independent Certified Public Accountant to be mutually agreed upon,
and if such an accountant cannot be agreed upon, the American Arbitration
Association in Somerset, New Jersey shall, at the request of either party, be
asked to select an arbitrator, whose decision on the dispute will be final and
binding upon both parties, who shall jointly share any cost of such arbitration.
Pending resolution of said dispute, Tenant shall pay to Landlord the sum so
billed by Landlord subject to its ultimate resolution as aforesaid.
(F) Right of Review. Once Landlord has finally determined
Property Expenses at the end of a Calendar Year, then as to the particular
expense so established, Tenant shall only be entitled to dispute said expense or
review the records therefor, for a period of three (3) months after such expense
is established, and Tenant specifically waives any right to dispute any such
expense, or review the records therefor, at the expiration of said three (3)
month period.
(G) Late Charge. Tenant hereby acknowledges that late payment by
Tenant to Landlord of Basic Rent or Additional Rent or any part thereof will
cause Landlord to incur costs not contemplated by the Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges, and late charges which may be
imposed on the Landlord by the terms of any mortgage covering the Property.
Accordingly, if payment of Basic Rent or Additional Rent or any part thereof
shall not be received by Landlord within five (5) days after such amount shall
be due, the Tenant, without any requirement for notice to Tenant, shall pay to
Landlord a late charge equal to four (4%) percent of the unpaid amount due for
each and every five (5) day period which has elapsed between the day said amount
is due and the date the amount is received by Landlord. The parties hereby agree
that such late Acceptance of such late charge by Landlord shall in no event
constitute a waiver of Tenant's default with respect to such overdue amount; nor
prevent Landlord from exercising any of the other rights and remedies granted
hereunder.
(H) Additional Rent. All payments Tenant is required to make
pursuant to this Lease, other than Basic Rent, shall constitute additional rent
("Additional Rent") and, if Tenant defaults in any such payment, Landlord shall
have (in addition to any rights and remedies granted herein) all rights and
remedies provided by law for non-payment of Basic Rent.
(I) Place of Payment. Tenant shall pay Rent as hereinafter
provided, to Landlord at Landlord's above-stated address, or at such other place
as Landlord may designate in writing, without the necessity of a bill therefore
or demand of any nature whatsoever, and without counterclaim, deduction or
set-off.
6. USE OF DEMISED PREMISES. The Tenant shall use and occupy the Demised
Premises for office and light electronic assembly, as provided under the
applicable zoning ordinances of the Borough of Mahwah and for no other purpose.
It is a consideration of this
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Lease, that the use of the Demised Premises shall be limited to those uses as
otherwise hereinbefore specified, and that such uses be subject to and
consistent with any Certificate of Occupancy issued by the Township of Mahwah.
Such use does not permit the stacking of merchandise or materials against the
walls, so as to create a load or weight factor upon the walls, or to tie in,
Tenant's racking systems with such walls, not the hanging of equipment from (or
otherwise loading) the roof or structural members of the Building without the
express written consent of the Landlord. The Tenant shall not use or occupy or
permit the Demised Premises to be used or occupied, nor do or permit anything to
be done in or on the Demised Premises, in a manner which will in any way violate
the Certificate of Occupancy affecting the Demised Premises, or make void or
voidable any insurance then in force with respect thereto, or which will make it
impossible to obtain fire or other insurance required to be furnished by the
Tenant hereunder, at regular rates, or which will cause or be likely to cause
structural damage to the Building or any part thereof, or which will constitute
a public or private nuisance, or which would adversely affect the then value
thereof. Tenant shall, in the use and occupancy of the Demised Premises, comply
with all laws, orders and regulations of the federal, state and municipal
governments or of any of their departments affecting the Demised Premises. If
any repairs or improvements are made necessary in order to comply with any of
the aforesaid governmental rules and regulations, then Tenant shall, at Tenant's
cost and expense, make said repair and/or improvement subject to Tenant's
obligation to secure Tenant's Approval. Landlord represents that at the time of
the issuance of the Certificate of Occupancy the Demised Premises shall be in
compliance with any laws, orders, or regulations of the federal, state or
municipal governments or any of their departments affecting the Demised
Premises. the Tenant shall not permit or cause any odor, sound, vibration,
effluent, pollution or other condition that is either in Landlord's opinion or
by law noxious or offensive. Nothing herein contained shall be deemed or
construed to constitute a representation or guaranty by the Landlord that any
specific business may be conducted in the Demised Premises or is lawful under
the Certificate of Occupancy.
7. RIGHT TO INSPECT AND REPAIR. Landlord may enter the Demised Premises
but shall not be obligated to do so (except as required by any specific
provision of this Lease) at any reasonable time on reasonable notice to Tenant
(except that no notice need be given in case of emergency) for the purpose of
inspection or the making of such repairs, replacement or additions, in, to, on,
and about the Demised Premises or the Building, as Landlord deems necessary or
desirable. Tenant shall have no claims or cause of action against Landlord by
reason thereof. In no event shall Tenant have any claim against Landlord for
interruption to Tenant's business, however occurring, including, but not limited
to, that arising from negligence of Landlord, its agents, servants or invitees,
or from defects, errors or omissions in the construction or design of the
Demised Premises and/or the Building, including the structural and
non-structural portions thereof.
8. REPAIRS. (A) Tenant shall keep, replace and maintain in good order,
condition and repair the premises and each and every part thereof (except for
repairs specifically required of Landlord pursuant to subparagraph (C) of this
Paragraph 8) including, without limitation, any air conditioning units and
systems; heating units and systems; plumbing units and systems; sprinkler
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systems; electrical systems; equipment; facilities and fixtures. Landlord
represents to Tenant that on the Commencement Date, all systems servicing the
Demised Premises shall be in good working order. The aforesaid obligation of
Tenant shall also include, without limitation, all necessary painting and
decorating and the replacement of any glass which may be damaged or broken.
Notwithstanding the foregoing, all damage or injury to the Premises or to
appurtenances, whether requiring structural or non-structural repairs, caused by
the negligence or improper conduct of Tenant, or its employees, invitees,
licensees or agents, shall be repaired promptly by Tenant at its sole cost and
expense. If Tenant refuses or neglects to make such repairs of fails to
diligently prosecute the same to completion within 15 days after written notice
from Landlord to Tenant of the need therefor, Landlord may make such repairs at
the expense of Tenant and such expense shall be collectible as additional rent
together with a service fee, as provided in Paragraph 5 hereof, if Tenant shall
fail to make such payment promptly.
(B) Tenant shall obtain a maintenance contract for the heating,
ventilation and air conditioning systems in the building. Such contract shall
provide for semi-annual maintenance of the HVAC systems, and copies of the
maintenance agreement shall be submitted to Landlord, together with an annual
report of the maintenance company as to the condition and repairs made to the
systems. The firm or person maintaining the HVAC systems shall be a person who
is certified and licensed to service refrigerating equipment as such
certification or licenses may be required by law or any governmental agency.
(C) Landlord shall keep, replace and maintain in good order and
condition and repair common areas and the roof, roof deck, outside walls and
concrete floors, subject, however, the cost of same to the extent applicable
shall be paid by the Tenant, as the Tenant's proportionate share, pursuant ot
the provisions of Paragraph 5 hereof.
9. UTILITIES. Landlord shall not be required to provide any services to
Tenant, other than bringing the utilities to the building, and Tenant agrees to
arrange directly with the appropriate utility companies for supply of gas,
electricity, water, light, power, telephone and any other utility service and
shall pay all fees, deposits, expenses and charges therefrom to such companies.
Landlord shall not be liable to Tenant for any delay or failure in Tenant's
receipt of any such utilities, and in no event shall such delay or failure,
regardless of cause or cost, constitute a constructive eviction of Tenant or
permit Tenant any abatement of Rent or allow Tenant to terminate this Lease.
10. ALTERATIONS. The Tenant shall not change the Demised Premises or
make any additions, alterations, or improvements to the Demised Premises without
the Landlord's prior written consent. Any alterations, improvements or additions
in or about the Demised Premises that Tenant shall desire to make shall be
submitted to Landlord in written form, with proposed detailed plans. any
alterations, improvements or additions proposed by Tenant shall be further
subject to the following:
(a) Tenant shall first obtain requisite permits including, but
not limited to, a new
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Certificate of Occupancy, if necessary, and authorizations from governmental
authorities having jurisdiction;
(b) Obtain, if applicable, any fee mortgagee's or ground
lessee's prior written consent;
(c) Any alterations shall be made promptly (unavoidable delays
excepted), in a workmanlike manner in accordance with any alteration plans and
in compliance with applicable laws and governmental regulations;
(d) The cost of the alterations shall be paid by Tenant so that
the Demised Premises remains free of any liens;
(e) If requested by Landlord, post with Landlord adequate
security to assure restoration of the premises at the end of the Term;
(f) Tenant shall maintain proper insurance as required by
Landlord;
(g) No change or alterations shall, when completed, tie in or
connect the Demised Premises with any other building on adjoining property;
(h) No permitted alteration shall be undertaken until detailed
Plans and Specifications have first been submitted to and approved in writing by
Landlord, and if required, by the fee mortgagee or ground lessee. The Tenant
shall be responsible for paying any of Landlord's fees in reviewing the Plans
and Specifications. At the completion of the alteration or restoration,
"as-built" plans shall be delivered to Landlord;
(i) Any alteration made by Tenant under this Paragraph 10 hereof
shall, at Landlord's option, become Landlord's property, or, at the election of
Landlord, shall be removed by the Tenant thirty (30) days prior to the
termination of the Term and the Demised Premises shall be restored to its
condition prior to such alteration. The security deposited under Paragraph 10(e)
hereof shall be returned to the Tenant at the end of the Term if Landlord elects
to have such improvement remain, or, returned to Tenant after restoration by
Tenant if Landlord directs that said alteration be removed and the Demised
Premises restored.
11. SIGNS. The Tenant shall not install any sign on the roof or on the
exterior surface of the Building walls or grounds, or any portion of the Demised
Premises without the prior written consent of the Landlord.
12. ASSIGNMENT AND SUBLETTING. The terms of the Paragraph 12 shall
apply every time that an assignment arises by operation of law and every time
that the Tenant desires to make any of the following agreements:
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a) an assignment of all or part of this Lease;
b) a sublease of all or part of the Demised Premises;
or
c) an agreement allowing a third party to use or occupy all
or part of the Demised Premises.
If an assignment arises by operation of law, or if the Tenant desires to
make any of the above-described agreements, then the Tenant shall:
a) provide the Landlord, in writing, with an explanation of the
circumstances of the assignment by operation of law or provide the
Landlord with the complete terms of the proposed agreement;
b) arrange for the prospective assignee, sublessee, or third party
user to meet with the Landlord; and
c) provide the Landlord, in writing, with any reasonably requested
information about the assignment by operation of law, the proposed
agreement, or the proposed assignee, sublessee, or third party
use.
Within fourteen (14) days after the Tenant satisfies the above-described
three requirements, the Landlord, in its sole discretion, in accordance with the
terms of this paragraph, shall either: (a) consent, (b) withhold its consent, or
(c) terminate this Lease.
The Tenant shall not permit any assignee, sublessee, or third party user to
use or take possession of all or part of the Demised Premises, unless the
Landlord has consented in writing. In addition, before any assignment by
operation of law or any proposed agreement takes effect, the Tenant, at its own
expense, shall either comply with N.J.S.A. 13:1K et seq. ("ISRA"), if
applicable, or obtain approval of a nonapplicability application.
The Landlord shall consent to any proposed agreement to be made with any of
the following "permitted" assignees, sublessees, or third party users which do
not have a Standard Industrial Classification ("SIC") number which is covered by
ISRA and provided that such assignees, sublessees, or third party users have a
total net worth equal to or greater than the Tenant as of the date of such
assignment or sublet:
a) a parent corporation which has the power to direct the
Tenant's management and operation;
b) a subsidiary corporation whose management and operation are
controlled by the Tenant;
c) a corporation in which or with which the Tenant is merged or
consolidated in accordance with applicable law; or
d) a company which purchases substantially all of the Tenant's
assets, and which assumes in writing all of Tenant's
obligations under the Lease.
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By consenting to any assignment by operation of law or any proposed
agreement, the Landlord shall not by releasing the Tenant from any of its
obligations under the terms of this Lease. Any assignment shall include the
assignee's assumption and agreement to perform all of the Tenant's obligations
which arise during the term of the assignment. The Tenant shall promptly pay any
"profit", related to this Lease of the Demised Premises, which the Tenant
receives from any assignee, sublessee, or third party user, to the Landlord as
Additional Rent. For purposes of this clause, "profit" shall mean any
consideration received by the Tenant in excess of the Base Rent and additional
rent due under the terms of this Lease, regardless of the costs incurred by the
Tenant to effect any assignment by operation of law or any proposed agreement.
Consent to any one assignment by operation of law or any one proposed
agreement shall not be deemed to be consent to any subsequent assignment by
operation of law or any subsequent proposed agreement and shall not be deemed to
be a waiver of any of the terms of this clause.
If the Landlord exercises its right of termination under the terms of this
paragraph, and if an assignment by operation of law or a proposed agreement
applies to all of the Demised Premises, then the Landlord may terminate this
Lease for all of the Demised Premises. If, however, an assignment by operation
of law or a proposed agreement only applies to part of the Demised Premises,
then the Landlord may either: (a) terminate this Lease for that part of the
Demised Premises or (b) terminate this Lease for that part of the Demised
Premises covered by the assignment by operation of law or the proposed
agreement, in which case the amount of Basic Rent and Additional Rent shall be
prorated. Any termination shall be effective (60) days from the date on which
the Tenant receives the Landlord's notice of termination. If the Landlord
terminates this Lease for all of the Demised Premises, then the Landlord may
lease all or part of the Demised Premises and/or any other space directly to the
proposed assignee, sublessee, or third party user. If the Landlord terminates
this Lease for part of the Premises, then the Landlord may lease that part of
the Demises Premises and/or space other than the Demised Premises directly to
the proposed assignee, sublessee, or third party user.
Tenant shall reimburse Landlord for any expenses that may be incurred by
Landlord in connection with any proposed assignment or sublease, including,
without limitation, the reasonable costs of making investigations as to the
acceptability of a proposed assignee or subtenant and reasonable legal expenses
incurred in connection with the granting of any requested consent to the
assignment or sublessee.
13. COMPLIANCE WITH ISRA AND OTHER ENVIRONMENTAL LAWS.
Tenant acknowledges the existence of environmental laws, rules and
regulations, including but not limited to the provisions of ISRA, as hereinafter
defined. tenant shall comply with any and all such laws, rules and regulations.
tenant warrants to Landlord that Tenant's SIC Number will not subject the
Demised Premises to ISRA applicability. Any change by Tenant to an operation
with an SIC Number subject to ISRA shall require Landlord's written consent. Any
such proposed change shall be sent in writing to Landlord sixty (60) days prior
to the proposed change.
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Landlord, at its sole option, may deny consent.
Tenant hereby agrees to execute such documents as Landlord reasonably deems
necessary and to make such applications as Landlord reasonably requires to
assure compliance with ISRA. Tenant shall bear all costs and expenses incurred
by Landlord associated with any required ISRA compliance resulting from Tenant's
use of the Demised Premises including but not limited to legal fees, state
agency fees, engineering fees, clean-up costs, filing fees and suretyship
expenses. As used in this Lease, ISRA compliance shall include applications for
determinations of nonapplicability by the appropriate governmental authority.
The foregoing undertaking shall survive the termination or sooner expiration of
the Lease and surrender of the Demised Premises and shall also survive sale, or
lease of assignment of the Demised Premises by Landlord. the Tenant shall
immediately provide the Landlord with copies of all correspondence, reports,
notices, orders, findings, declarations and other materials pertinent to the
Tenant's compliance and the requirements of the New Jersey Department of
Environmental Protection ("NJDEP") under ISRA as they are issued or received by
Tenant.
At no time during this Lease may Tenant store, upon the premises, hazardous
substances as that term may be defined from time to time by the New Jersey
Department of Environmental Protection and Energy or, by the Federal
Environmental Protection Agency pursuant to Section 311 of the "Federal Water
Pollution Act, amendments of 1972" (33 U.S.C. Section 1321) and the list of
toxic pollutants designated by Congress of the Environmental Protection Agency
pursuant to Section 307 of that Act (33 U.S.C. Section 1317).
Tenant agrees not to generate, store, manufacture, refine, transport,
treat, dispose of, or otherwise permit to be present on or about the Demised
Premises, any Hazardous Substances. As used herein, Hazardous Substances shall
be defined as any "hazardous chemical," "hazardous substance" or similar term as
defined in the Comprehensive Environmental Responsibility Compensation and
Liability Act, as amended (42 U.S.C. 9601, et seq.), the New Jersey
Environmental Cleanup Responsibility Act, as amended, N.J.S.A. 13:1K-6 et seq.
and/or the Industrial Site Recovery Act ("ISRA"), the New Jersey Spill
Compensation and Control Act, as amended, the New Jersey Spill Compensation and
Control Act, as amended, N.J.S.A. 58:10-23.11b, et seq., any rules or
regulations promulgated thereunder, or in any other applicable federal, state or
local law, rule or regulation dealing with environmental protection. It is
understood and agreed that the provisions contained in this Section shall be
applicable notwithstanding the fact that any substance shall not be deemed to be
a Hazardous Substance at the time of its use by the Tenant but shall thereafter
be deemed to be a hazardous Substance.
In the event Tenant fails to comply with ISRA as stated in this paragraph
or any other governmental law as of the termination or sooner expiration of this
Lease and as a consequence thereof Landlord is unable to rent the Demised
Premises, then the Landlord shall treat Tenant as a holdover tenant in
possession of the Demised Premises, until such time as Tenant complies with the
foregoing. In such event, Tenant shall be responsible for the rental obligations
as a month-to-month Tenant as provided in Paragraph 56 hereof.
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Tenant agrees to indemnify and hold harmless the Landlord and each
mortgagee and ground lessee of the Demised Premises from and against any and all
liabilities, damages, claims, losses, judgments, causes of action, costs and
expenses (including the reasonable fees and expenses of counsel)which may be
incurred by the Landlord or any such mortgagee or ground lessee or threatened
against the Landlord or such mortgagee and ground lessee, relating to or arising
out of any breach by Tenant of the undertakings set forth in this paragraph,
said indemnity to survive the Lease expiration or sooner termination.
14. DAMAGE BY FIRE OR OTHER CASUALTY
(A) Substantial Damage. If the Demised Premises, Building or any
part thereof shall be damaged by fire or other casualty, Tenant shall give
prompt written notice thereof to Landlord. If as a result the Demised Premises
or Building is so damaged that substantial alterations or reconstruction of the
Demised Premises or Building shall, in Landlord's sole opinion, be required
(whether or not the Demised Premises or Building shall have been damaged) or if
any mortgagee of the Demised Premises or Building requires the proceeds payable
be used to retire the mortgage debt, Landlord may, at its option, terminate this
Lease by notifying Tenant in writing of such termination within sixty (60) days
after the date of such damage. If this Lease is so terminated, rent shall be
abated as of the date of such damage.
(B) Restoration. If Landlord does not terminate this Lease
pursuant to Subsection A of this Paragraph 14, Landlord shall, within
seventy-five (75) days after receipt by Landlord of the proceeds payable in
respect of such fire or other casualty, proceed with reasonable diligence to
restore the Demised Premises or Building (subject to Force Majeure) to
substantially the same condition in which it was immediately prior to the
occurrence of the casualty. Landlord shall not be required to rebuild, repair or
replace any part of Tenant's furniture, furnishings, fixtures or equipment. Such
work shall include the scope of the work done by the Landlord when originally
finishing the Demised Premises in accordance with the working drawings, provided
the Landlord shall not be required to spend for such work an amount in excess of
the proceeds actually received by the Landlord and allocable thereto. Landlord
shall not be liable for any inconvenience or annoyance to Tenant or injury to
the business of Tenant, resulting in any way from damage or repair thereof,
except that, subject to the provisions in the next sentence, Landlord shall
allow Tenant a fair diminution of Basic Rent and Additional Rent during the time
and to the extent the premises are unfit for occupancy. If the Demised Premises
or any portion of the Building be damaged by fire or other casualty resulting
from the fault or negligence of Tenant or any of Tenant's agents, employees or
invitees, the Basic and Additional Rent hereunder shall not be diminished during
repair of such damage.
(C) Right of Cancellation by Tenant in the Event of a Casualty. If
this Lease is not otherwise terminated as provided in Subparagraphs A and B
above, then Landlord agrees that Landlord shall within twenty (20) days of the
date of the casualty notify Tenant as to Landlord's estimate, as verified by
Landlord's architect or engineer, of the amount of time reasonably anticipated
to complete restoration after the casualty. If the estimated time of
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completion of the restoration would exceed one (1) year, then Tenant shall have
the right by written notice to Landlord to terminate this Lease, such written
notice to be given by Tenant to Landlord within ten (10) days of the date of
receipt by Tenant of Landlord's original notification of the estimated
restoration time period. Failure of Tenant to cancel and terminate this Lease
within the ten (10) day period as aforesaid shall be deemed a waiver of Tenant's
rights under this Subparagraph C.
15. EMINENT DOMAIN.
(A) The term "Total Taking" means the taking of the Fee Title or
Landlord's master Leasehold Estate to so much of the Demised Premises or a
portion of the Building in which the Demised Premises is located, by right of
Eminent Domain or other authority of law or a voluntary transfer under the
threat of the exercise of law or a voluntary transfer under the threat of the
exercise of the right of Eminent Domain or other authority. The term "Partial
Taking" means the taking of only a portion of the Demised Premises or a portion
of the Building in which the Demised Premises is located which does not
constitute a Total Taking.
(B) If a Total Taking occurs during the Term of this Lease, this
Lease will terminate as of the date of the Taking. The phrase "Date of Taking"
means the date of taking actual physical possession by the condemning authority
or such earlier date as the condemning authority gives notice that it is deemed
to have taken possession.
(C) If a Partial Taking occurs during the Term of this Lease,
Landlord may cancel this Lease by written notice given within sixty (60) days
after the date of the Taking and this Lease will terminate on the date of the
Taking. If the Lease is not so terminated, this Lease will continue in full
force and effect as to the remainder of the Demised Premises. The Basic Rent
payable by Tenant under Paragraph 5(a) for the balance of the Term will be
abated in the proportion that the leasable area of the Demised Premises
immediately prior to such taking, and Landlord will make all necessary repairs
or alterations to make the remaining Demised Premises a complete architectural
unit.
(D) If, this Lease has not been otherwise canceled as hereinabove
provided, and, if a Partial Taking occurs of more than fifty (50%) percent of
the Demised Premises during the term of this Lease, then, in such even, Tenant
may cancel this Lease by written notice given within sixty (60) days after the
date of the Taking of this Lease will terminate as of the date of the Taking.
(E) All compensation awarded for any such taking or conveyance,
whether for the whole or in part of the Demised Premises or otherwise, shall be
the property of the Landlord, whether such damages shall be awarded as
compensation for the diminution or total loss in value of the leasehold or of
the fee of the Demised Premises, and Tenant hereby assigns to Landlord all of
Tenant's rights, title and interest in and to any such compensation. Tenant
shall be entitled to separately petition the condemning authority for a separate
award for its moving expenses and trade fixtures, but only if such separate
award will not diminish the amount of proceeds payable to
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Landlord.
(F) If this Lease is terminated pursuant to the provisions of this
paragraph, then all rentals and all other charges payable by Tenant to Landlord
under this Lease will be paid up to the date of the Taking and any rentals and
other charges paid in advance and allocable to the period after the date of the
Taking will be repaid to Tenant by Landlord. Landlord and Tenant will then be
released from all further liability under this Lease, subject to Tenant's
liability for compliance with Paragraph 13.
16. WAIVER OF LANDLORD'S LIABILITY. Tenant agrees, in addition to complying
with Tenant's insurance requirements, to take such steps as it may deem
necessary and adequate for the protection of itself and its agents, employees,
invitees, and licensees, and the property of the foregoing by insurance, as a
self-insurer or otherwise. As a consideration for the making of this Lease,
Landlord shall not be liable for any injury to persons or damage to property
located in the Demised Premises resulting from any cause whatsoever, including,
without limitation, theft, fire, explosion, water, rain, snow, frost, steam,
gas, electricity, heat, cold, dampness, sewers, odors, noise, leaks from any
part of the Building or the roof, the bursting or leading of pipes, plumbing,
electrical wiring and equipment, and fixtures of all kinds, or by any act or
neglect of others, tenants or occupants of the Building. Tenant hereby waives
all right of recovery which it might have against Landlord, Landlord's agents
and employees for loss or damage to Tenant's furniture, Tenant Improvements,
inventory, furnishings, fixtures, chattels and articles of personal property
located on the Demised Premises, notwithstanding that such loss or damage may
result from the negligence or fault of Landlord.
17. INSURANCE TO PROVIDED BY TENANT. The Tenant, at its sole cost, shall
maintain:
(A) Property insurance against all risk of loss or damage to
Tenant's Improvements by fire and such other casualties as may be included in
the broadest form of all risk property insurance, specifying, among other
hazards, insurance against flood and earthquake, and against such other risks or
hazards as Landlord from time to time may designate, in an amount equal to the
full replacement costs;
(B) Comprehensive general liability insurance under a policy in
which Landlord and others designated by Landlord are named as insured, with
limits of not less than ONE MILLION ($1,000,000.00) DOLLARS for personal
injuries and death resulting therefrom, and ONE MILLION ($1,000,000.00) DOLLARS
for damage to property. The minimum limits shall be increased periodically
during the Lease term as may be required by Landlord. Tenant's liability policy
shall also afford coverage for products coverage, liquor law coverage (if
applicable) and if Tenant's business includes temporary custody of customers'
personal property, third party liability coverage;
(C) Insurance against claims of personal injury (including death)
or property damage
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arising out of or in connection with Tenant's construction activities, including
without limitation, "all-risk builder's risk," worker's compensation and other
insurance coverage as may be reasonably required by Landlord;
(D) All insurance shall be effected under policies issued by
insurers of recognized responsibility authorized to do business in the Stat of
New Jersey and shall name Landlord and Tenant and any mortagee or ground lessor
as their interest may appear, as the insured. Upon the execution of this Lease,
Tenant shall deliver to Landlord a binder evidencing the required coverage and
payment of premiums and shall deliver an original policy or certificate of
insurance within fifteen (15) days of execution and thereafter not less than ten
(10) days prior to the expiration dates of expiring policies, originals of the
policies or certificates evidencing the same bearing notations evidencing the
payment of premium shall be delivered by Tenant to Landlord except that whenever
the Demised Premises shall be mortgaged by the Landlord, such policies of
insurance shall be lodged with the holder of the mortgage lien and certified
copies shall be delivered to the Landlord. Each such policy shall not be
canceled or modified without at least ten (10) days prior to written notice to
the Landlord and to any mortgagee named therein;
(E) Upon the default of the Tenant in effecting any such insurance
or procuring or delivering the policies therefor as directed by the Landlord, or
in paying the premiums thereof and any and all charges incidental thereto when
the same become payable, or in procuring and delivering to the Landlord renewals
of expired insurance and/or pay the premiums and other charges incidental
thereto, and any and all amounts so paid by Landlord shall have all rights and
remedies including summary proceedings, with respect to the same as with respect
to Rent;
(F) Landlord makes no representation that the limits of liability
specified to be carried by Tenant or Landlord, under the terms of this Lease are
adequate to protect Tenant against loss of Tenant's business, improvements and
personal property, and in the event Tenant believes that any such insurance
coverage called for under this Lease is insufficient Tenant shall provide, at
its own expense, such additional insurance as Tenant deems adequate.
18. WAIVER OF SUBROGATION. Notwithstanding the provisions of this paragraph
of the Lease or any other provision of this Lease, in the event of any loss or
damage to the Building, the Demised Premises and/or any contents (herein
"property damage"), each party waives all claims against the other for any such
loss or damage and each party shall look only to any insurance which it has
obtained to protect against such loss (or in the case of Tenant, waives all
claims against any tenant of the Building that has similarly waived claims
against such Lessee) and each party shall obtain, for each policy of such
insurance, provisions waiving any claims against the other party (and against
any other tenant(s) in the Building that has waived subrogation against the
Lessee) for loss or damage within the scope of such insurance.
19. INDEMNITY. Tenant is and shall be in exclusive control and possession
of the Demised Premises as provided herein, and Landlord shall not in any event
whatsoever be liable for any injury or damage to any property or to any person
happening on or about the Demised
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Premises, nor for any injury or damage to the Demised Premises, nor to any
property of Tenant, or of any other person contained therein.
Tenant shall indemnify and save Landlord harmless against and from all
liabilities, claims, suits, fines, penalties, damages, losses, fees, costs, and
expenses (including reasonable attorneys' fees) which may be imposed upon,
incurred by or asserted against Landlord by reason of:
(a) Any work or thing done in, on or about the Demised Premises or
any part thereof
(b) Any use, occupation, condition, operation of the Demised
Premises or any part thereof or of any street, alley, sidewalk, curb, vault,
passageway, or space adjacent thereto by Tenant or any employees, licensees or
invitees;
(c) Any other act or omission on the part of Tenant or any
subtenant or any employees, licensees or invitees;
(d) Any accident injury (including death) or damage to any person
or property occurring in, on or about the Demised Premises; or any part thereof
or in, on or about any street, alley, sidewalk, curb, vault, passageway, or
space adjacent thereto by Tenant or any employees, licensees or invitees;
(e) Any failure on the part of Tenant to perform or comply with
any of the covenants, agreements, terms or conditions contained in this Lease.
The provision of this Paragraph 19 shall survive the expiration or earlier
termination of this Lease.
20. DEFAULT OF TENANT. Any of the following events shall be a default of
Tenant:
(A) Tenant's default in the payment of the due date of the Basic
Rent and/or Additional Rent and/or any other payment required by tenant by this
Lease, unless Tenant shall cure such default within ten (10) days after written
notice thereof that such Basic Rent and/or Additional Rent and/or other payment
required of Tenant hereunder is unpaid.
(B) Tenant's default in the performance of any of the other
covenants to Tenant or conditions of this Lease, unless Tenant wall cure such
default within thirty (30) days after written notice of such default given by
Landlord (or if any such default is of such nature that it cannot be completely
cured within such period, then unless Tenant shall commence such curing within
thirty (30) days after notice of such default given by Landlord and shall
thereafter proceed with reasonable diligence and in good faith to cure such
default).
(C) Either: (i) the appointment of a receiver to take possession
of all or substantially all of the assets of Tenant, (ii) a general assignment
by Tenant for the benefit of creditors, (iii) any action taken or suffered by
Tenant, voluntarily, under any insolvency or bankruptcy or reorganization act or
law, or (iv) any order, judgment or decree entered, without the application,
approval or consent of Tenant, by any Court of competent jurisdiction approving
a petition seeking reorganization of Tenant, or appointing a custodian,
receiver, trustee or liquidator of Tenant, or a substantial part of its assets
and such order, judgment or decree continuing unstayed and in effect for any
period of one hundred twenty (120) consecutive days or failing to have
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dismissed an involuntary petition in bankruptcy filed against it within one
hundred twenty (120) days of the filing thereof.
21. LANDLORD'S REMEDIES ON DEFAULT OF TENANT. Upon any default of Tenant as
set forth in Paragraph 20 hereof, not cured within any notice and cure period
provided, Landlord, at Landlord's sole option, may elect and enforce any one of
the remedies hereinafter provided in this Paragraph 21; provided, however, that
Landlord may, at Landlord's sole option, elect and enforce multiple remedies
from among those remedies hereinafter provided to the extent such remedies are
not inconsistent and are not legally mutually exclusive and to the extent
Landlord deems the enforcement of such multiple remedies necessary or
appropriate to indemnify and make Landlord whole from any loss or damage as a
result of the default or defaults of Tenant; and provided further that Landlord
deems necessary or appropriate to indemnify and make Landlord whole from any
loss or damage as a result of the defaults of Tenant. Landlord shall have an
affirmative duty to mitigate its damages.
(A) Termination and Tenant's Liabilities. Landlord shall have the
right to terminate this Lease forthwith, and upon notice of such termination
given by Landlord to Tenant in accordance with the notice provisions of this
Lease, Tenant's right to possession, use and enjoyment of the Demised Premises
shall cease, and Tenant shall immediately quit and surrender the Demised
Premises to Landlord, but Tenant shall remain liable to Landlord as hereinafter
provided. Upon termination of this Lease, Landlord may at any time thereafter
re-enter and resume possession of the Demised Premises by any lawful means and
remove Tenant and/or other occupants and their goods and chattels. In any case
where Landlord has recovered possession of the Demised Premises by reason of
Tenant's default, Landlord may, at Landlord's option, occupy the Demised
Premises or cause the Demised Premises to be redecorated, altered, divided,
consolidated with other adjoining premises, or otherwise changed or prepared for
reletting, and may relet the Demised Premises or any part thereof as agent of
Tenant or otherwise, for a term or terms to expire prior to, at the same time
as, or subsequent to, the original termination date of this Lease, at Landlord's
sole option, and Landlord shall receive the rent therefor. Rent so received
shall be applied first to the payment of such reasonable expenses as Landlord
may have incurred in connection with the recovery of possession, redecorating,
altering, dividing, consolidating with other adjoining premises, or otherwise
changing or preparing for reletting, and the reletting, including brokerage and
reasonable attorneys' fees, and then to the payment of damages in amounts equal
to the lost Rent (Basic and Additional) and other payments required of Tenant
hereunder and to the costs and expenses of performance of the other covenants of
Tenant as herein provided. Tenant agrees, in any such case, whether or not
Landlord has relet, to pay to Landlord damage equal to the Basic Rent and
Additional Rent and other sums herein agreed to be paid by Tenant less rentals,
if any, receded in connection with any reletting as hereinafter provided. Tenant
shall not be entitled to any surplus accruing as a result of any such reletting.
In reletting the Demised Premises as aforesaid, Landlord may grant rent
concessions, and Tenant shall not be credited with the rent so waived. Neither
Landlord's occupancy nor any such reletting shall constitute a surrender and
acceptance or be deemed evidence thereof for Basic Rent, Additioanl Rent, other
payments and damages as herein defined, or shall be construed as a release
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of Tenant's liability hereunder.
(B) Liquidated Damages. In any case where Landlord has recovered
possession of the Demised Premises by reason of Tenant's default, hereunder
landlord may at Landlord's option, and at any time thereafter, and without
notice or other action by Landlord, and without prejudice to any other rights or
remedies it might have hereunder or at law or equity, become entitled to recover
from Tenant, as damages for such default, in addition to such other sums herein
agreed to be paid by Tenant, to the date of re-entry, expiration and/or
dispossession, an amount equal to the difference between (i) the sum of the
Basic Rent and Additional Rent and other payments reserved in this Lease and
required of Tenant hereunder from the date of such default to the Termination
Date, and (ii) the then fair and reasonable rental value of the Demised Premises
for the same period. Said damages shall become due and payable to Landlord
immediately upon such breach of this Lease and without regard to whether this
Lease shall have been terminated or not; and if this Lease be terminated or not;
and if this Lease be terminated, without regard to the manner in which it is
terminated. In the computation of such damage, the difference between any
installments of Rent (Basic and Additional) thereafter becoming due and the fair
and reasonable rental value, if less than the rent due under this Lease, of the
Demised Premises for the period for which such installment was payable, shall be
discounted to the date of such default at the rate of four (4%) percent per
annum.
(C) Specific Performance of Lease. If Tenant defaults in the
observance or performance of any term to be observed or performed by Tenant
under this Lease, Landlord may immediately or at any time thereafter and without
notice to Tenant, perform the same for the account of Tenant and the expenses
incurred with respect to such performance together with attorneys' fees and
interest thereon shall be deemed Additional Rent hereunder and shall be paid by
Tenant to Landlord on demand therefor.
(D) Waiver of Right of Redemption. Tenant hereby waives all right
of redemption to which Tenant or any person under Tenant, or any successor in
interest to Tenant might be entitled by any law now or hereafter in force.
(E) Other Remedies. In the event of any breach or threatened
breach by Tenant of any of the agreements, terms, covenants or conditions
contained in this Lease, Landlord shall be entitled to enjoin such breach or
threatened breach and shall have the right to invoke any right or remedy allowed
at law or in equity or by statute or otherwise as though re-entry, summary
dispossess proceedings, and other remedies were not provided for in this Lease.
During the pendency of any proceedings brought by Landlord to recover possession
by reason of default, Tenant shall continue all money payments required to be
made to Landlord, and Landlord may accept such payments for use and occupancy of
the Demised Premises. In such event, Tenant waives its right in such proceedings
to claim as a defense that the receipt of such money payments by landlord
constitutes a waiver by Landlord of such default.
(F) Payment of Landlord's counsel Fees and Other Costs, Interest.
Tenant shall pay the Landlord as Additional Rent, upon demand, Landlord's
attorneys' fees and all other costs
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and expenses of any proceedings instituted by reason of default of Tenant,
together with any late charges which may apply for Tenant's failure to make such
payments to Landlord when due.
22. SUBORDINATION OF LEASE. This lease shall, at Landlord's option, or at
the option of any ground lessee or holder of any first mortgage or deed of trust
(the "Mortgage"), be subject and subordinate to any such ground lease and to any
such Mortgage which may now or hereafter affect the real property of which the
Demised Premises form a part, and also to all renewals, modifications,
consolidations and replacements of said ground lease(s) and said Mortgage.
Although no instrument or act on the part of Tenant shall be necessary to
effectuate such subordination, Tenant will, nevertheless, within five (5) days
of receipt of same, execute and deliver such further instruments confirming such
subordination of this Lease as may be desired by the holder of said Mortgage or
by any of the Landlords under such ground lease(s). Tenant hereby appoints
Landlord attorney-in-fact, irrevocably, to execute and deliver any such
instrument for Tenant. If any ground lease(s) to which this Lease is subject
terminates and any Mortgage superior to this Lease if foreclosed upon or
otherwise sold, Tenant shall, on timely request, attorn to the owner of the
reversion.
23. EASEMENTS. Tenant shall permit Landlord or its designees to erect, use,
maintain and repair pipes, cables, conduits, plumbing, vents and wires, in, to
and through the Demised Premises, as and to the extent that Landlord may now or
hereafter deem to be necessary or appropriate for the proper operation and
maintenance of the Building in which the Demised Premises are located or any
other portion of the Building and/or Property. All such work shall be done, so
far as practicable, in such manner as to avoid unreasonable interference with
Tenant's use of the Demised Premises.
24. LANDLORD'S INABILITY TO PERFORM. This Lease and the obligation to pay
Rent hereunder and perform all of the other terms to be performed by tenant
hereunder shall not be affected, impaired or excused because Landlord is unable
to fulfill any of its obligations under this Lease.
25. NO PERSONAL LIABILITY OF LANDLORD.
(a) Notwithstanding anything to the contrary provided in this
Lease, it is specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Landlord, its constituent
members (to include, but not be limited to, officers, directors, partners and
trustees), their respective successors, assigns or any mortgagee in possession
(for purposes of this paragraph, collectively referred to as "Landlord"), with
respect to any of the terms, covenants and conditions of this Lease, Tenant
shall look solely to the equity of Landlord in the Building for the satisfaction
of each and every remedy of Tenant in the event of any breach by Landlord of any
of the terms, covenants and conditions of this Lease to be performed by
Landlord, such exculpation of liability to be absolute and without exceptions
whatsoever.
(b) With respect to any provision of this Lease which provides
that Tenant shall
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obtain Landlord's prior consent or approval, Landlord may withhold such consent
or approval for any reason at its sole discretion, unless the provision
specifically states that the consent or approval will not be unreasonably
withheld. Should Landlord unreasonably withhold its consent, Tenant's sole
remedy shall be Tenant's right to seek specific performance and no money damages
shall be sought or allowed.
26. SUBMISSION NOT AN OFFER TO LEASE. The submission of this Lease for
examination does not constitute a reservation of, or option for, the Demised
Premises, and this Lease becomes effective only upon execution and delivery
thereof by Landlord and Tenant.
27. TENANT'S ESTOPPEL. Tenant shall from time to time, within ten (10) days
of receipt of a request from Landlord, execute, acknowledge and deliver to
Landlord, or to anyone Landlord shall designate, without charge to Landlord, a
written statement of Tenant certifying that (i) the Lease is unmodified and in
full force and effect as modified and listing the instruments of modification;
(ii) the dates to which the rents and charges have been paid; (iii) that Tenant
has not discharged or used and does not discharge or use any Hazardous
Substances or waste at the Demised Premises or Building; and (iv) whether or
not, to the best of Tenant's knowledge, Landlord is in default hereunder, and if
so, specifying the nature of the default, and as to any other matters as may
reasonably be so requested. It is intended that any such statement delivered
pursuant to this Paragraph 27 may be relied upon by a prospective purchaser of
Landlord's interest or mortgagee of Landlord's interest or of the fee or
assignee or of any mortgage of Landlord's interest.
28. FINANCIAL AND OTHER INFORMATION. Tenant has furnished the Landlord with
Profit and Loss Statements and Balance Sheets and related statements, certified
by a Certified Public Accountant. Tenant further agrees that it will, upon
request by Landlord or any present or future mortgagee of Landlord, furnish to
the Landlord an audited Profit and Loss Statement and Balance Sheet prepared by
a Certified Public Accountant for the immediately preceding fiscal year and any
other information regarding Tenant as Landlord or any present or future
mortgagee of Landlord may reasonably request.
29. LANDLORD'S RIGHT TO SHOW PREMISES. Throughout the Term of this Lease,
Landlord 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 Property, and during the last twelve (12) months of the Term for the purpose
of showing the same to prospective tenants. Landlord agrees to notify Tenant,
either by telephone or writing, of the need for entry for purposes of showing
the Demised Premises.
30. QUIET ENJOYMENT. Landlord covenants that if and so long as Tenant pays
the Basic Rent and Additional Rent and performs the covenants hereof, Tenant
shall peaceably and quietly have hold and enjoy the Demised Premises for the
term herein mentioned, subject to the provisions of this Lease and to any
mortgage underlying this Lease or other agreements to which this Lease is
subordinate.
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31. NO ABATEMENT OF RENT. Except as otherwise specifically provided in this
Lease, there shall be no abatement, diminution or reduction of Basic Rent,
Additional Rent or other charges or other compensation due to the Landlord by
Tenant or any person claiming under it under any circumstances, including, but
not limited to, any inconvenience, discomfort, interruption of business or
otherwise.
32. ACCORD AND SATISFACTION. No payment by Tenant or receipt by Landlord of
a lesser amount than any Rent payable hereunder shall be deemed to be other than
a payment on account of the stipulated Rent, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment for Rent
be deemed an accord and satisfaction, and Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance of such
Rent or pursue any other remedy provided herein or by law.
33. EFFECT OF WAIVERS. No failure by Landlord to insist upon the strict
performance of any covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof, and no acceptance
of full or partial rent during the continuance of any such breach, shall
constitute a waiver of any such breach or of such covenant, agreement, term or
condition. No consent or waiver, express or implied, by Landlord to or of any
breach of any covenant, condition or duty of Tenant shall be construed as a
consent or waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Landlord.
34. LEASE CONDITION. This Lease is expressly conditioned upon Landlord
receiving the consent and approval of Landlord's mortgagee to its terms and
provisions not later than thirty (30) days after its execution and delivery by
both parties. Should said consent not be received within the aforesaid time
period, Landlord may, at Landlord's sole option, cancel this Lease and return
the first month's Basic Rent and Security Deposit to Tenant, which Tenant has
deposited with Landlord upon execution of this Lease, and thereafter the parties
shall have no further obligations to each other with respect to this Lease.
35. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE. Tenant agrees to give any
mortgagees, by registered or certified mail, a copy of any notice of default
served upon Landlord, provided that, prior to such notice, Tenant has been
notified in writing (by way of notice of assignment of rents and leases or
otherwise) of the name and address of such mortgagees. Tenant further agrees
that, if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the mortgagees shall have an additional thirty
(30) days within which to cure such default, or if such default cannot be cured
within the time, then such additional time as may be necessary, if within such
thirty (30) days, any mortgagee has commenced and is diligently pursuing the
remedies necessary to cure such default (including, but not limited to
commencement of foreclosure proceedings if necessary to effect such a cure), in
which event this Lease shall not be terminated while such remedies are being so
diligently pursued.
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36. LANDLORD'S RESERVED RIGHT. Landlord and Tenant acknowledge that the
Demised Premises are in a Building which is not open to the general public.
Access to the Building is restricted to Landlord, Tenant, their agents,
employees, and contractors and to their invited visitors. In the event of a
labor dispute, including a strike, or picketing, informational or associational
activities directed at Tenant or any other tenant, Landlord reserves the right
unilaterally to alter Tenant's ingress and egress to the Building or make any
other change in operating conditions to restrict pedestrian, vehicular or
delivery ingress and egress to a particular location.
37. CORPORATE/PARTNERSHIP AUTHORITY.
(A) If Tenant is a corporation, Tenant represents and warrants
that this Lease, and the undersigned's execution of this Lease, has been duly
authorized and approved by the board of directors. The undersigned officers and
representatives of the corporation executing this Lease on behalf of the
corporation represent and warrant that they are officers of the corporation with
authority to execute this Lease on behalf of the corporation, and, within ten
(10) days of execution hereof, Tenant will provide Landlord with a corporate
resolution confirming the aforesaid.
(B) If Tenant is a partnership, Tenant shall deliver to Landlord,
at the time of execution of this Lease, a duly executed Consent of Partners
confirming the authority of the General Partner(s) to execute this Lease,
together with a certified copy of the filed Certificate of Partnership.
Notwithstanding the foregoing, Tenant shall not be personally liable under the
terms of this Lease and their personal assets shall not be subject to liens,
changes, attachments or collections as a result of any actual or alleged default
under the Lease.
38. RECORDING. Tenant covenants that it will not record this Lease without
the prior written consent of Landlord.
39. NUMBER AND GENDER. The terms "Landlord" and "Tenant" wherever used
herein shall be applicable to one or more persons, as the case may be, and the
singular shall include the plural and neuter shall include the masculine and/or
feminine, and if there be more than one, the obligations hereof shall be joint
and several.
40. COMPLIANCE WITH RULES AND REGULATIONS. Tenant shall, at Tenant's sole
cost and expense, observe and comply with the Rules and Regulations hereinafter
set forth in Exhibit D, annexed hereto and made a part hereof, and with such
further reasonable rules and regulations as Landlord may prescribe, or written
notice to Tenant, for the safety, care and cleanliness of the Building and of
the Park and the comfort, quiet and convenience of other occupants of the
Building.
41. SECURITY DEPOSIT. Tenant shall deposit with Landlord on the signing of
this Lease the Security Deposit, as set forth in Paragraph 1, for the full and
faithful performance of
23
<PAGE>
Tenant's obligations under this Lease, including, without limitation, the
surrender of possession of the Demised Premises to Landlord as herein provided.
If Landlord applies any part of said Security Deposit to cure any default of
Tenant, Tenant shall, on demand, deposit with Landlord the amount so applied so
that Landlord shall have the full Security Deposit on hand at all times during
the Term. Landlord, in the event that the Demised Premises are sold, shall
transfer and deliver the Security Deposit, as such, to the purchaser of the
Demised Premises and shall notify Tenant thereof, and thereupon Landlord shall
be discharged from any further liability in reference thereto. The Security
Deposit, (less any portions thereof used, applied or retained by Landlord in
accordance with the provisions of this Paragraph 41) which need not be placed in
any separate account of Landlord, shall be returned to Tenant, without interest,
within thirty (30) days after the expiration or sooner termination of this Lease
without the fault of Tenant and after delivery of the entire Demised Premises to
Landlord in accordance with the provisions of this Lease and satisfaction of an
ISRA or other environmental requirements still pending at the time of expiration
or termination of the Lease. Tenant covenants that it will not assign or
encumber or attempt to assign or encumber the Security Deposit and Landlord
shall not be bound by any such assignment, encumbrance or attempt thereof.
In the event of the insolvency of Tenant, or in the event of the entry of a
bankruptcy judgment in any court against Tenant which is not discharged within
thirty (30) days after entry, or in the event a petition is filed by or against
Tenant under any chapter of the bankruptcy laws of the State of New Jersey or
the United States of America, then in such event, Landlord may require Tenant to
deposit additional security, to be held by, Landlord pursuant to the terms of
this Lease, in an amount which in Landlord's sole judgment would be sufficient
to adequately assure Tenant's performance of all of its obligations under this
Lease including all payments subsequently accruing. Failure of Tenant to deposit
the security required by this paragraph, within ten (10) days after Landlord's
written demand, shall constitute a material breach of this Lease by Tenant.
Landlord further agrees that upon the Tenant's initial public offering and
submission to Landlord of documentation confirming such initial public offering,
the Security Deposit amount shall be reduced to three (3) months' Basic Rent.
42. RIGHT TO CURE TENANT'S BREACH. If Tenant breaches any covenant or
condition of this Lease, Landlord may (but shall not be obligated to), on
reasonable written notice to Tenant (except that no notice need be given in case
of emergency), cure such breach at the expense of Tenant and the reasonable
amount of all costs and expenses (including, without limitation, attorneys'
fees, disbursements and costs), incurred by Landlord in so doing (whether paid
by Landlord or not) shall be deemed Additional Rent payable on demand.
43. MECHANIC'S LIENS. Tenant covenants not to suffer or permit any
mechanic's or materialmen's or other liens to be filed against Landlord's fee or
leasehold interest in the Building or Demised Premises by reason of work, labor,
services or materials supplied or claimed to have been supplied to Tenant or any
contractor, subcontractor or any other party or person acting at the request of
Tenant or anyone holding the Demised Premises or any part thereof or under the
tenant, and Tenant shall, within (15) days after receiving notice of the filing
thereof, cause the same to be discharged of record by payment, deposit, bond or
Order of a Court of competent jurisdiction or otherwise.
24
<PAGE>
44. EXTENSION OF TERM. (INTENTIONALLY OMITTED)
45. PARKING SPACES. Tenant's occupancy of the Demised Premises shall
include the use of those Assigned parking spaces as enumerated in Paragraph 1.
Tenant shall, upon request, promptly furnish the Landlord the license numbers of
the cars operated by Tenant and its subtenants, licensees, invitees,
concessionaires, officers and employees. All amounts due under the provisions of
this paragraph shall be deemed to be Additional Rent. Landlord reserves the
right to substitute assigned parking spaces at any time and from time to time
during the Term as may be reasonably required by Landlord. Tenant shall not
abandon or permit to be abandoned any vehicles on the Demised Premises or in any
Common Facilities nor shall Tenant keep vehicles on the Demised Premises or in
any Common Facilities which, in the Landlord's sole opinion, create a nuisance
or hazard. Landlord shall not be responsible for any damage or theft of any
vehicle in the parking area and shall not be required to keep parking spaces
clear of unauthorized vehicles or to otherwise supervise the use of the parking
area.
46. LANDLORD'S LIABILITY FOR LOSS OF PROPERTY Landlord shall not be liable
for any loss of property from any cause whatsoever, including, but not limited
to, theft or burglary, fire and other casualty, from the Demised Premises, and
any such loss arising from the negligence of Landlord, its agents, servants or
invitees, or from defects, errors or omissions in the construction or design of
the Demised Premises and/or the Building including the structural and
non-structural portions thereof, and Tenant covenants and agrees to make no
claim for any such loss at any time.
47. PARTIAL INVALIDITY/GOVERNING LAW. If any provisions of this Lease, or
the application thereof to any person or circumstances, shall to any extent be
invalid or unenforceable, the remainder of this Lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of the Lease shall be valid and enforceable to the
fullest extent permitted by law. This Lease agreement shall be governed by and
construed in accordance with the laws of the State of New Jersey.
48. BROKER. Tenant represents and warrants to Landlord that the Brokers, as
defined in Paragraph 1, are the sole brokers with whom Tenant has negotiated in
bringing about this Lease, and Tenant agrees to indemnify and hold Landlord and
its mortgagee (s) harmless from any and all claims of other brokers and expenses
in connection therewith arising out of or in connection with the negotiation of
or the entering into this Lease by Landlord and Tenant. Landlord shall pay the
Brokers' commission pursuant to a separate agreement with Burns Commercial
Realty, Inc.; the Brokers shall not be deemed third-party beneficiaries of this
provision. In no event shall Landlord's mortgagee (s) have any obligation to any
broker involved in this transaction. In the event that no broker was involved as
aforesaid, then Tenant represents and warrant to Landlord that no broker brought
about this transaction, and Tenant agrees to indemnify and hold Landlord
harmless from any and all claims of any broker arising out of or in connection
with the negotiations of or the entering into of this Lease by Tenant and
Landlord and to that end shall indemnify Landlord for all loss, costs or damage
including reasonable attorneys'
25
<PAGE>
fees arising therefrom.
49. COMPLETE AGREEMENT. This Lease constitutes the complete agreement and
understanding between the parties hereto with respect to the matters set forth
herein, and supersedes and terminates any and all prior negotiations or
understandings between the parties hereto. No alteration, amendment or
modification of any of the terms and provisions of this Lease shall be valid
unless made pursuant to an instrument in writing signed by each of the parties
hereto. No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some future
writing signed by the party making such representation(s) or promises(s). The
parties do not intend to confer any benefit hereunder on any person, firm,
corporation or other entity, other than the parties hereto.
50. PARAGRAPH HEADINGS. The paragraph headings in this Lease and position
of its provision are intended for convenience only and shall not be taken into
consideration in any construction or interpretation of this Lease or any of its
provisions.
51. LANDLORD'S LIEN. (INTENTIONALLY OMITTED)
52. NOTICE. Any notice by either party to the other shall be in writing and
shall be deemed to have been duly given only if delivered personally or sent by
registered mail or certified mail in a postpaid envelope, if to Tenant at the
address as set forth in Paragraph 1, Attention: Manager; if to Landlord, at
Landlord's address as set forth in Paragraph 1, Attention: Jeffrey Kessel or
Steve Kessel; or to either at such address as Tenant or Landlord, respectively,
may designate by written notice in accordance with this paragraph. Notice shall
be deemed to have been duly given, if delivered personally, or delivery thereof,
and if mailed, upon the 10th day after mailing thereto.
53. WAIVER OF TRIAL BY JURY. To the extent such waiver is permitted by law,
the parties waive trial by jury in any action or proceeding brought in
connection with this Lease or the Demised Premises.
54. APPLICABILITY TO HEIRS AND ASSIGNS. The provisions of this Lease shall
apply to, bind and inure to the benefit of Landlord and Tenant and their
respective heirs, successors, legal representatives and assigns. It is
understood that the term "Landlord" as used in this Lease means only the owner,
a mortgagee in possession or a term lessee of the Building, so that in the event
of any sale of the Building or of any lease thereof or if a mortgagee shall take
possession of the Premises, Landlord named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of Landlord
hereunder accruing thereafter, and it shall be deemed without further agreement
that the purchaser, the term lessee of the Building, or the mortgagee in
possession has assumed and agreed to carry out any and all covenants and
obligations of Landlord hereunder accruing thereafter and Tenant shall, upon
receipt of notice from the owner of the reversion, attorn thereto.
26
<PAGE>
55. EXPIRATION OF TERM - RETURN OF DEMISED PREMISES IN GOOD CONDITION. On
the last day or sooner termination of this Lease, Tenant shall quit and
surrender the Demised Premises broom-clean, in good condition and repair,
reasonable wear and tear excepted, together with all alterations, additions and
improvements which may have been made in, on, or to the Demised Premises, except
movable furniture or unattached movable trade fixtures put in at the sole
expense of the Tenant (provided Tenant has not been in default under this Lease)
provided, however, that Tenant shall ascertain from Landlord at least thirty
(30) days before the end of the Term whether Landlord desires to have the
Demised Premises, or any part thereof, restored to the condition in which it was
originally delivered to Tenant prior to Landlord's Work, and if Landlord shall
so desire then Tenant, at its own cost and expense, shall restore the same
before the end of the Term. All trade fixtures, equipment, furniture,
alterations, additions and improvements not so removed will conclusively be
deemed to have been abandoned by Tenant and may be appropriated, sold, stored,
destroyed, or otherwise disposed of by Landlord without notice to Tenant or to
any other person and without obligation to account for them. Tenant will pay
Landlord all expenses incurred in connection with Landlord's disposition of such
property, including without limitation the cost of repairing any damage to the
Building or Demised Premises caused by removal of such property. Tenant agrees
upon termination of this Lease, the air conditioning, cooling systems, heating
equipment and plumbing and electrical systems shall be in good, operable
conditions, and all lighting fixtures shall be operable and, in the same
location as when delivered to Tenant by Landlord and bulbs where necessary,
replaced. Tenant shall also comply with the provision of Paragraph 14 prior to
termination of this Lease. If the Demised Premises are not surrendered as and
when aforesaid, Tenant shall indemnify Landlord against loss or liability
resulting from the delay by Tenant in so surrendering the Demised Premises
including, without limiting, any claims made by any succeeding occupant founded
on such delay. Tenant's obligations under this paragraph shall survive the
expiration or sooner termination of the Term.
56. HOLDOVER TENANCY. If Tenant holds possession of the Demised Premises
after the Term of this Lease, at the option of Landlord, Tenant shall become a
tenant from month-to-month, at a monthly basic rental equal to three (3) times
the sum of (i) the Monthly Basic Rent payable for the last month of the Term,
and (ii) one twelfth (1/12th) of Property Expense Rent. Such month-to-month
tenancy shall continue until termination of intent to terminate such
month-to-month tenancy.
57. ADDITIONAL COVENANTS. Tenant covenants and agrees that at all times
during the Term it shall not at any time without first obtaining Landlord's
prior written consent:
(A) Not Change Exterior Architecture. Change (whether by
alteration, replacement, rebuilding or otherwise) the exterior color and/or
architectural treatment of the Demised Premises or of the Building in which the
same is located, or any part thereof.
(B) Not Misuse Plumbing Facilities. Use the plumbing facilities
for any purpose other than that for which they were constructed, or dispose of
any garbage or other foreign
27
<PAGE>
substance therein, whether through the utilization of so-called "garbage
disposal" or similar units or otherwise.
(C) No Liens. Subject any fixtures, furnishings or equipment in or
on the Demised Premises which are affixed to the realty, to any mortgages,
liens, conditional sales agreements, security interests or encumbrances.
(D) Not Damage the Demised Premises. Perform any act or carry on
any practice which may damage, mar or deface the Demised Premises or any other
part of the Building.
(E) Not Exceed Electrical Load. Install, operate or maintain in
the Demised Premises, any electrical equipment which does not bear approval of
the underwriters' laboratories, or which would overload the electrical system
therein, or any part thereof, beyond its reasonable capacity for proper and safe
operation.
(F) Not Permit Odors, etc. Suffer, allow or permit any offensive
or obnoxious vibration, noise, odor or other undesirable effect to emanate from
the Demised Premises, or any machine or other installation therein, or otherwise
suffer, allow or permit the same to constitute a nuisance or otherwise
unreasonably interfere with the safety, comfort or convenience of Landlord or
any other occupants of the Building; upon notice by Landlord to Tenant that any
of the aforesaid is occurring, Tenant shall forthwith (but in all events within
five (5) days) remove or control the same.
(G) Not Interfere with Insurance, Compliance, Improper Use. Use or
occupy the Demised Premises or do or permit anything to be done thereon in any
manner which shall prevent Landlord and/or other Tenants from obtaining at
standard rates any insurance required or desired, or which would invalidate or
increase the cost to Landlord of any existing insurance, or which might cause
structural injury to the Building, or which would constitute a public or private
nuisance or which would violate any present or future laws, regulations,
ordinances or requirements (ordinary or extraordinary, foreseen or unforeseen)
of the federal, state or municipal governments, or of any department,
subdivisions, bureaus or offices thereof, or of any other governmental public or
quasi-public authorities now existing or hereafter created having jurisdiction
in the Demised Premises, or the Building of which the Demised Premises forms a
part. If, at any time, and from time to time, as a result of, or in connection
with, any failure by Tenant to comply with the foregoing or any act of omission
or commission by Tenant, its employees, agents, contractors or licensees, or as
a result of, or in connection with, the use to which the Demised) put
(notwithstanding that such use may be for purposes hereinbefore permitted, or
that such use may have been consented to by Landlord), the insurance rates
applicable to the Demised Premises or the Building in which same are located, or
to any other Demised Premises in said Building and/or to the contents in any or
all of the aforesaid properties (including rent insurance relating thereto)
shall be higher than that which would be applicable for the least hazardous type
of occupancy legally permitted therein, Tenant agrees that it will pay to
Landlord, on demand, as Additional Rent, such portion of the premiums for all
fire insurance policies (including extended coverage) in force with respect to
the aforesaid properties (including rent insurance relating
28
<PAGE>
thereto) and the contents of any occupant thereof as shall be attributable to
such higher rates.
58. MISCELLANEOUS.
(A) Tenant warrants and represents that it will, at no time,
install any underground storage tanks on the Demised Premises. A breach of this
covenant shall be deemed a default under the Lease, and Landlord shall have the
right to terminate the Lease upon the happening of such event.
(B) Tenant shall, not without Landlord's prior written consent,
install any window coverings, blinds, curtains, shades, except, as may be
otherwise consented to by Landlord. Tenant acknowledges that Landlord intends to
have all Tenants in the Building in which the Demised Premises are located use a
uniform window treatment.
(C) Tenant shall be responsible for removal of its own trash.
Tenant shall engage the services of the refuse hauler, as designated by
Landlord. Tenant acknowledges that for economies of scale, all Tenants in the
Building in which the Demised Premises are located are to use the same refuse
hauler.
(D) 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. Landlord reserves the right to prescribe the
weight and position of all safes, business machines and mechanical equipment.
Such installments shall be placed and maintained by Tenant, at Tenant's expense,
in settings sufficient, in Landlord's judgement, to absorb and prevent
vibration, noise and annoyance.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals or
caused these presents to be signed by their proper corporate officers, and their
proper corporate seal to be hereto affixed, in the day and year first above
written.
WITNESS: JOLIN REALTY
Landlord
- ------------------------------------- By: --------------------------------
ATTEST: TELLURIAN, INC.,
By: ------------------------------
29
<PAGE>
CONSULTANT AGREEMENT
THIS AGREEMENT made this 26th day of March, 1997.
B E T W E E N :
EYE WONDER STUDIOS INC.,
a Corporation with offices at
5781 Ellen Avenue, Niagara Falls,
Ontario;
Hereinafter referred to as "CONSULTANT"
- a n d -
CYBERPORT NIAGARA INC.,
a company located at Niagara Falls,
Ontario;
Hereinafter referred to as "COMPANY"
WHEREAS, COMPANY is entering the organizational and/or start-up phase
of operations of its business.
AND WHEREAS, CONSULTANT has knowledge, experience and ability with
regard to the organization, start-up, marketing and operation of businesses
involving intellectual properties and the display of or interaction with such
properties for consumers or customers and the merchandising of products derived
therefrom to consumers or customers,
AND WHEREAS, COMPANY wishes to retain the experienced services of
CONSULTANT, and CONSULTANT is willing to advise, assist, guide, direct and
counsel COMPANY with regard to its organization, start-up, marketing, operation
and merchandising,
NOW, THEREFORE, IT IS ACKNOWLEDGED AND AGREED AS FOLLOWS:
<PAGE>
2
1. COMPANY hereby retains the services of CONSULTANT as an independent
contractor, and CONSULTANT hereby agrees to act:
(a) as a consultant to COMPANY;
(b) in the capacity as an independent contractor;
2. The term of this Agreement shall be from March 1st, 1997, to May 1st, 1997.
3. CONSULTANT agrees as an independent contract to provide to COMPANY the
services of several employees of CONSULTANT as an independent contractor as set
out in Schedule "A" attached hereto and COMPANY agrees to pay to CONSULTANT the
amounts set out in Schedule "A" for the time periods set out in Schedule "A" and
CONSULTANT acknowledges that the persons listed in Schedule "A" will be the
employees of CONSULTANT until such time as the Consulting Agreement is completed
at which time the employees will become employees of the COMPANY at the
COMPANY'S discretion. CONSULTANT further agrees to deduct, pay and remit from
the employees of the CONSULTANT as listed in Schedule "A" all deductions,
required by the laws of the Province of Ontario and Canada and to provide proof
to the COMPANY that such deductions have been made as and when requested by the
COMPANY.
4. CONSULTANT will consult and assist COMPANY with site selection and
development, concept design and development, business and facility organization,
marketing, merchandising and business operations. CONSULTANT will make available
to COMPANY the benefit of its knowledge, experience and ability from and after
execution hereof until termination even without a specific request by COMPANY.
CONSULTANT will also respond to any specific request by COMPANY for assistance,
guidance or advice within the purview of its ability.
5. As an independent contractor, CONSULTANT will be solely empowered to
determine the dates, times location and methods of its service to COMPANY.
COMPANY AND CONSULTANT may mutually agree at any time or times upon scheduling,
method and location
<PAGE>
3
of service, and wherever and whenever possible, information to be supplied by
CONSULTANT to COMPANY may be so supplied by fax, mail or delivery in an effort
to minimize the cost to COMPANY.
6. To the extent that the knowledge, experience and ability of CONSULTANT
relates to intellectual properties and the display or merchandising of and/or
interaction with said properties by customers of COMPANY, all of such
information, knowledge, experience and ability shall be deemed to be
confidential and/or proprietary in nature, and all of such information,
knowledge, experience and ability provided to COMPANY by CONSULTANT shall be
guarded by COMPANY as confidential or proprietary, and no disclosure shall be
made by COMPANY, its agents, servants, employees, vendors or contractors to any
third party without advance notice to and consent from CONSULTANT.
7. COMPANY shall indemnify and hold CONSULTANT harmless from any claims, costs,
fees or losses arising out of the organization, start-up, except as to any
claims for action or inaction for which CONSULTANT shall be found to have been
grossly negligent or improper itself. COMPANY shall promptly reimburse
CONSULTANT for any expenses, fees, costs or losses sustained as a result of or
in connection with the defence of any such claim unless CONSULTANT shall have
been found to be liable therefore.
8. During the course of performance by CONSULTANT under this Agreement,
CONSULTANT may provide to COMPANY various materials, information or data which
CONSULTANT deems, in its sole discretion, to be confidential and/or proprietary,
and in those instances, CONSULTANT will notify COMPANY upon delivery or in
advance thereof of such a confidential or proprietary nature. Upon receipt,
COMPANY shall acknowledge receipt of such classified materials, information or
data and shall further acknowledge the classification thereof, as well. Upon
termination of this Agreement, COMPANY will surrender and return to CONSULTANT
all of such information, materials and data that had been delivered hereunder by
CONSULTANT to COMPANY unless, by separate agreement hereafter, CONSULTANT agrees
<PAGE>
4
to permit COMPANY to retain same.
9. In the event that COMPANY fails to make payment to CONSULTANT of any invoice
from CONSULTANT to COMPANY when required hereunder, it shall be deemed Default.
Payment after the due date shall obligate COMPANY to pay additional sums in the
form of interest which shall accrue from the original due date under such
invoice until said invoice shall have been paid in full at the rate of 2.0% per
month or 0.07% per day plus a late charge penalty equal to $100.00. Furthermore,
if such default if not cured within ten (10) days, said default shall
automatically terminate this Agreement without further notice by CONSULTANT to
COMPANY.
10. This Agreement may not be assigned or transferred in any way by COMPANY
without advance notice to and consent from CONSULTANT. Furthermore, COMPANY may
not effect any change in its ownership, beneficial ownership or control without
advance notice to and consent from CONSULTANT during the life of this Agreement.
11. In the event of any dispute between the parties hereto arising out of the
interpretation, performance or observance of their obligations under this
Agreement, the dispute shall be submitted to arbitration by the giving of notice
by either party to the other. In the event of arbitration, the arbitrator shall
be the Judge of the Supreme Court of Ontario or of any county or district court
in the Province of Ontario as the parties may agree to within thirty days of the
submission by either party to proceed to arbitration. In default of agreement
within that time, the arbitrator shall be the Judge of the Supreme Court of
Ontario or of any county or district court in the Province of Ontario selected
by a Judge of the Supreme Court of Ontario on application by either party on
five days' notice to the other. The arbitrator shall have all the powers given
by the Arbitrators Act of Ontario to arbitrators and may at any time and from
time to time proceed in the manner he thinks fit on such notice as he deems
reasonable and in the absence of either party. Each party shall pay its own
costs and shall share equally the cost of the arbitrator. The award and the
determination of the arbitrator shall be final and binding on each party and
each
<PAGE>
5
party agrees not to appeal from any award or determination.
12. This Agreement constitutes the entire agreement between the parties, and
there are no oral or other representations not contained herein.
13. The parties hereby agree that this Agreement, performance thereunder or
enforcement thereof shall be governed by and construed in accordance with the
laws of the Province of Ontario, Canada, and the parties hereto agree to submit
to the jurisdiction of the courts of said Province.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the day
and year first above written.
Witness: ) EYE WONDER STUDIOS INC.
)
)
) per: Robert Winterford
)
)
)
)
) CYBERPORT NIAGARA INC.
)
)
) per: Michael Hurd, President
)
<PAGE>
6
S C H E D U L E " A "
Consultants will be paid at the following specific rates:
1. For David Turner $5,000.00 per month beginning March 10th, 1997;
2. For Robert Winterford $5,000.00 per month beginning March 10th, 1997;
3. For David Van Velzen $3,000.00 per month beginning March 1st, 1997;
4. For Ryan Weir $3,000.00 per month beginning March 1st, 1997;
In addition, consultant will submit monthly budget for expense items
and will be reimbursed for all approved expenses.
<PAGE>
EMPLOYMENT CONTRACT
THIS AGREEMENT made this 26th day of March, 1997.
B E T W E E N :
CYBERPORT NIAGARA INC.,
a Corporation with offices at
5781 Ellen Avenue, Niagara Falls,
Ontario;
Hereinafter referred to as "EMPLOYER"
- a n d -
ROBERT WINTERFORD,
of the City of Niagara Falls,
Ontario;
Hereinafter referred to as "EMPLOYEE"
WHEREAS, EMPLOYER is entering the organizational and/or start-up phase
of operations of its business.
AND WHEREAS, EMPLOYEE has knowledge, experience and ability with regard
to the organization, start-up, marketing and operation of businesses involving
intellectual properties and the display of or interaction with such properties
for consumers or customers and the merchandising of products derived therefrom
to consumers or customers,
AND WHEREAS, EMPLOYER wishes to employ the services of EMPLOYEE, and
EMPLOYEE is willing to advise, assist, guide, direct and counsel EMPLOYER with
regard to its organization, start-up, marketing, operation and merchandising,
NOW, THEREFORE the EMPLOYER and EMPLOYEE, in consideration of the
respective mutual promises and agreements hereinafter set forth, promise and
agree each with the other as follows:
<PAGE>
2
1. During the period of his said employment, the EMPLOYEE shall devote his
entire time and best efforts to such duties as may be assigned to him by the
EMPLOYER, and will faithfully and diligently serve and endeavour to further the
interests of the EMPLOYER.
2. Any and all inventions and improvements thereon which the EMPLOYEE may
conceive or make during the period of his said employment, relating or in any
way appertaining to or connected with any of the matters which have been, are or
may become the subject of the employer's investigations, or in which the
employer has been, is or may become interested, shall be the sole and exclusive
property of the EMPLOYER, and the EMPLOYEE will, whenever requested to do so by
the EMPLOYER, execute any and all applications, assignments and other
instruments which the EMPLOYER shall deem necessary in order to apply for and
obtain Letters Patent of Canada or foreign countries for such inventions or
improvements and in order to assign and convey to the EMPLOYER the sole and
exclusive right, title and interest in and to such inventions, improvements,
applications and patents.
3. The EMPLOYEE shall not, directly or indirectly, disclose or use, at any time,
either during or subsequent to his said employment, any secret or any
confidential information concerning the EMPLOYER'S processes, methods, formulae,
apparatus specifications, materials and sources of supply thereof, customers,
their identities and requirements, discoveries, inventions, patents (including
applications and rights in either), contracts, finances, personnel, their duties
and capabilities, research, plans, policies and intentions, including matters,
though not technically trade secrets, the dissemination of a knowledge whereof
might prove prejudicial to EMPLOYER.
4. The EMPLOYER shall employ the EMPLOYEE only for the term from May 1st, 1997
to April 30th, 1998, at a yearly salary of Sixty Thousand ($60,000.00) Dollars -
Canadian Funds - to be payable twice monthly. The EMPLOYER agrees to pay other
employment benefits as EMPLOYER may designate generally as provided to its other
EMPLOYEES.
<PAGE>
3
5. The EMPLOYER shall be entitled to terminate the employment of the EMPLOYEE
upon giving the EMPLOYEE thirty (30) days written notice of such termination.
6. The EMPLOYEE'S obligations to execute the papers referred to in paragraph 2
hereof shall continue beyond the termination of his employment with respect to
any and all inventions or improvements conceived or made by him during his
employment, and such obligations shall be binding on the assigns, executors,
administrators, or other legal representatives of the EMPLOYEE.
7. The expense of applying for and obtaining the Letters Patent referred to in
paragraph 2 hereof shall be borne entirely by the EMPLOYER.
8. The masculine form herein, when appropriate, shall extend to and include the
feminine.
9. This Agreement shall be binding upon and enure to the benefit of the
EMPLOYER, its successors and assigns.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the day
and year first above written.
Witness: ) CYBERPORT NIAGARA INC.
)
)
) per: Michael Hurd, President
) ----------------------------
)
) Robert Winterford
) ----------------------------
) ROBERT WINTERFORD
)
<PAGE>
Purchase Agreement Option
Between
CyberPort Niagara Inc.
And
117459 Ontario Inc.
to be assigned to
Niacan Ltd.
The LESSEE, has the sole option, at any time during the term of this
lease to purchase the property located at 5781 Ellen Avenue, Niagara Falls,
Ontario, from 117457 Ontario Inc. to be assigned to Niacan Ltd. as LESSOR, for
Three Million Dollars Canadian ($3,000,000.00 - Canadian) Dollars and the
purchase may be completed at any time between January 1st, 1998 and July 31st,
1998, failing which this option is null and void and the LESSEE'S tenancy
continues to term.
Dated at Niagara Falls, Ontario, this day of March , 1997.
CYBERPORT NIAGARA INC.
per: Michael Hurd
- ----------------------------- -------------------------------------
Witness I have the power to bind the company.
117459 Ontario Inc.
to be assigned to
NIACAN LTD.
per: Ashak Murani
- ----------------------------- -------------------------------------
Witness I have the power to bind the company
<PAGE>
INTELLECTUAL PROPERTY AGREEMENT
THIS AGREEMENT made this 26th day of March, 1997.
B E T W E E N :
CYBERPORT INTERNATIONAL INC., a
company located in Delaware, U.S.A.,
head office in New Jersey, U.S.A.;
Hereinafter referred to as "COMPANY"
- a n d -
EYE WONDER STUDIOS INC.,
a Corporation with offices at
5781 Ellen Avenue, Niagara Falls,
Ontario;
Hereinafter referred to as "EYE WONDER"
- a n d -
ROBERT WINTERFORD, of the City
of Niagara Falls, in the Regional Municipality
of Niagara;
Hereinafter referred to as "WINTERFORD"
AND WHEREAS, EYE WONDER and WINTERFORD have been assisting the COMPANY
since January 1st, 1995,
AND WHEREAS, COMPANY, EYE WONDER and WINTERFORD wish to clarify certain
agreements amongst themselves,
<PAGE>
2
NOW THEREFORE the COMPANY and EYE WONDER and WINTERFORD in
consideration of the respective mutual promises and agreements hereinafter set
forth, promise and agree with each other as follows:
1. In return for shares in Cyberport International Inc. and
2. For Cyberport International Inc.'s participation in signing of the Final
Release which is attached hereto as Schedule "A" to this Agreement and
3. In consideration of Cyberport International Inc. encouraging Cyberport
Niagara Inc. to enter into an Employment Contract dated March 26th, 1997, and a
Consultant Agreement dated March 26th, 1997 and a Final Release dated March
26th, 1997 and in consideration of the sum of Two ($2.00) Dollars paid by the
COMPANY to EYE WONDER and WINTERFORD,
Both WINTERFORD personally and EYE WONDER as an entity agree to
transfer to COMPANY all of the intellectual rights, concepts and ideas which
have been discussed and/or documented in any manner with regard to the programs
that both WINTERFORD and EYE WONDER have been involved in with regard to
entertainment sites at 5515 Stanley Avenue and 5781 Ellen Avenue (both in
Niagara Falls, Ontario) or any other physical site evaluated in the Province of
Ontario during the time period January 1st, 1995, to and including the date
hereof.
Intellectual property, for the purposes of this Agreement include but
are not limited to:
(a) any and all drawings, correspondence, brochures, meetings, minutes
and non-privileged communication in the development of the tourist attraction
frequently referred to as Eye Wonder Studios and/or CyberPort Niagara Inc.;
(b) the fruits of any and all consultant products developed through
relationships between Winterford, Eye Wonder Studios and/or CyberPort Niagara
Inc. and
(i) Future Port Inc., Design Finance International Inc. and/or
John Spencer as an individual;
<PAGE>
3
(ii) Leah Glitman.
(c) any concepts, ideas, proposed logos or trademark items discussed
with or documented to Tellurian Inc. as part of the relationship between Eye
Wonder Studios, Winterford and Tellurian or its president, Stuart French.
(d) any other concept or work product on the stationary of or as part
of a presentation by Winterford, Eye Wonder Studios and/or CyberPort Niagara
Inc. in its efforts to attract investors, lenders or employees to participate in
projects under consideration in the City of Niagara Falls, Ontario.
8. That EYE WONDER and WINTERFORD represent that each of us has no agreement
with or obligations to others in conflict with the foregoing.
IN WITNESS WHEREOF, we have hereunto set our hands and seals on the day and year
first above written.
Witness: ) CYBERPORT INTERNATIONAL INC.
)
)
) per: Michael Hurd
) ------------------------------
)
)
)
) Robert Winterford
) ------------------------------
) ROBERT WINTERFORD
)
)
)
) EYE WONDER STUDIOS INC.
)
)
) per: Robert Winterford
) ------------------------------
)
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
REGISTRANT'S UNAUDITED BALANCE SHEET AS OF MARCH 31, 1997 AND UNAUDITED
STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 1997 AND IS
QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-31-1997
<CASH> 519,148
<SECURITIES> 1,971,250
<RECEIVABLES> 182,805
<ALLOWANCES> 115,000
<INVENTORY> 557,851
<CURRENT-ASSETS> 3,213,817
<PP&E> 433,069
<DEPRECIATION> 83,559
<TOTAL-ASSETS> 3,342,920
<CURRENT-LIABILITIES> 1,012,561
<BONDS> 0
0
0
<COMMON> 30,025
<OTHER-SE> 2,649,843
<TOTAL-LIABILITY-AND-EQUITY> 3,342,920
<SALES> 81,285
<TOTAL-REVENUES> 81,285
<CGS> 63,662
<TOTAL-COSTS> 63,662
<OTHER-EXPENSES> 372,837
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 12,300
<INCOME-PRETAX> (636,760)
<INCOME-TAX> 0
<INCOME-CONTINUING> (636,760)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (636,760)
<EPS-PRIMARY> (0.21)
<EPS-DILUTED> (0.21)
</TABLE>
