ALLENDALE ASSOCIATES TO CADAPULT GRAPHIC SYSTEMS, INC.
TABLE OF CONTENTS
CLAUSE PAGE
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Preamble 1
1. Premises 3
2. Term 3
3. Construction 3
4. Landlord's Financing 5
5. Rental 5
6. Use 6
7. Insurance 6
8. Increase of Insurance Rates 7
9. Fire and Other Casualty 8
10. Repairs and Maintenance 9
11. Covenants Against Liens 10
12. Alterations 10
13. Condemnation 12
14. Access and Right to Exhibit 12
15. Assignment and Subletting 13
16. Rules and Regulations, Compliance with Laws 14
17. Utilities 16
18. Signs 16
19. Taxes 17
20. Additional Charges 18
21. Non-Liability of Landlord 19
22. Indemnity 19
23. Right to Cure Default 19
24. Remedies Upon Default 20
25. Waiver of Redemption 22
26. Mortgage Priority 22
27. Surrender of Premises 23
28. Unavoidable Delays 23
29. Landlord Consent 24
30. Security 24
31. Certification 25
32. Waiver of Trial by Jury 26
33. Quiet Enjoyment 26
34. Landlord 26
35. Notices 26
36. Covenants, Effect of Waiver 27
37. Holding Over 27
38. Reference 27
39. Entire Agreement 27
40. Attornment 28
41. Real Estate Broker 28
42. Validity of Lease 28
43. Common Areas 28
44. Representations 29
45. Environmental Compliance 29
46. Option to Renew 30
46. Non-Binding Nature of Submittal 31
<PAGE>
AGREEMENT OF LEASE
PREAMBLE
The Landlord and Tenant agree to the leasing of the premises indicated on
the terms and conditions specified and agree that the following terms whenever
used in this Lease shall have the meanings indicated unless the terms are
otherwise expressly modified, limited or expanded herein.
(1) LANDLORD: ALLENDALE ASSOCIATES, a New Jersey General
Partnership
ADDRESS: 87 Route l7, Maywood, N.J. 07607
(2) TENANT: Cadapult Graphic Systems, Inc.(Including its wholly
owned subsidiary - Media sciences, Inc.)
ADDRESS: 110 Commerce Drive, Allendale, NJ 07401
(3) DATE OF LEASE: August , 2000
(4) LEASED PREMISES: Portion of Building as shown on Exhibits
A and B
ADDRESS: 40 Boroline Road, Allendale, NJ 07401
DESCRIPTION: As Shown on Exhibits A and B
(5) TERM: Ten (10) Years
COMMENCEMENT DATE OF TERM: January 1, 2001
TERMINATION DATE: ,December 31, 2010
(6) SIZE OF ENTIRE BUILDING: 107,776 sq. ft.
APPROXIMATE SIZE OF LEASED PREMISES: 15,400 sq. ft.
(7) BASE RENT: Years 1 - 5 $12.00/sq. ft.
Years 6 - 10 $13.60/sq. ft.
COMMENCEMENT DATE BASE RENT: January 1, 2001
TOTAL LEASE BASE RENTAL: $1,971,199.80
ANNUAL BASE RENTAL: Years 1 - 5 $184,800.00
Years 6 - 10 $209,439.96
MONTHLY BASE RENTAL: Years 1 - 5 $15,400.00
Years 6 - 10 $17,453.33
RENT DUE DATE: First of Month
(8) SECURITY DEPOSIT: $38,217.66
(9) TENANT'S ALLOCABLE PERCENTAGE: 14.29%
(10) ESTIMATED ADDITIONAL MONTHLY RENTAL CHARGE: $3,708.83
(11) PERMITTED USE: Executive, administration and sales
offices and warehouse for the servicing
and distribution of computer related
equipment and supplies, including but not
limited to solid ink for use in computer
printers, as well as the manufacturing of
solid ink for use in generic color
computer output devices.
(12) INSURANCE REQUIREMENTS:
LANDLORD: Per Paragraph 20
TENANT: Per Paragraph 7
(13) BROKER: MRH Real Estate Services, Inc. and
INSIGNIA/ESG
(14) TAX IDENTIFICATION NO.
LANDLORD: 22-2698417
TENANT: 87-0475073
(15) TENANT SIC NO: 5045 and 2893
(16) EXHIBITS: A. Site Plan
B. Building Plan
C. List of Tenant Improvements
W I T N E S S E T H:
PREMISES.
l. The Landlord hereby leases to Tenant and Tenant hereby
takes from Landlord, those certain premises, consisting of a portion of a
building constructed or to be constructed by Landlord (which building and
premises are hereinafter referred to as the "Building" and the "Premises",
respectively), located at the address stated in (4) of the Preamble and more
particularly described on Schedules "A" and "B" attached hereto and made a part
hereof, subject however, to all of the terms, covenants, provisions and
conditions herein set forth and to all present and future liens, encumbrances,
conditions, rights, easements, restrictions, rights-of-way, covenants, other
matters of records, and zoning and building laws, ordinances, regulations and
codes affecting or governing the Building or which may hereafter affect or
govern the Building, and such matters as may be disclosed by inspection or
survey, provided the same do not materially impair the use and enjoyment of the
Premises by Tenant for the purpose hereinafter stated in Paragraph 6.
TO HAVE AND TO HOLD the Premises for the term and at the rents
herein set forth.
TERM.
2. (a) The term of this lease (hereinafter referred to as
"Term") shall be for the period stated following the Commence ment Date, as
hereinafter defined, unless sooner terminated as herein expressly provided. In
the event however, that the Commencement Date is not the first day of a month,
then the Term shall end on the last day of the month in which the anniversary of
the Commencement Date shall fall.
(b) The term, and the Tenant's obligation to pay
Rental, as hereinafter defined, shall commence on the earlier of the following
dates (which date is hereinafter referred to as the "Commencement Date"): (a) On
"Delivery of Possession" (as hereinafter defined in Paragraph 3; or (b) the date
on which Tenant shall first conduct any business activities on the Premises.
(c) For purposes of this lease, a "Lease Year" shall
be deemed to be each consecutive period of twelve (12) full calendar months
during the Term hereof, except that the first Lease Year shall also include the
fractional portion of the month, if any, immediately following the Commencement
Date, and that the last Lease Year shall run only from the day following the
termination of the previous Lease Year to the termination date of the lease.
CONSTRUCTION.
3. (a) The Landlord has substantially completed construction
of the Building on Lot 14 Block 702 in accordance with plans filed with and
approved by the Construction Department of the Borough of Allendale. The
Landlord will complete the construction of the Base Building and the Tenant
Improvements listed in Exhibit C.
(b) In addition to the Tenant Improvements listed in
Exhibit C, the Landlord agrees that the interior of the Leased Premises will be
made ready for Tenant's occupancy based upon the following:
(1) The Tenant has selected Poskanzer Skott
as its Architect at its expense to prepare such drawings and specifications as
maybe necessary for bidding and constructing the offices of the Leased
Premises("Tenant's Work"). Completed drawings and any specifications associated
therewith showing all of Tenant's Work as approved by the Tenant shall be made
available to the Landlord on or before September 7, 2000 for Landlord's approval
which will not be unreasonably withheld or delayed.
(2) The Landlord through its subsidiary
general contractor, will prepare a price to do the Tenant's Work.
(3) The Tenant, if it so elects, may seek
prices from other qualified general contractors to do the Tenant's Work. If it
does so elect, all such prices shall be submitted to the Landlord on or before
September 28, 2000. In determining the lowest price to do Tenant's Work, the
Landlord shall be entitled to add five percent (5%) to each bid received from
any Tenant-selected General Contractor to monitor the progress and quality of
the construction of Tenants Work.
(4) The Landlord will provide to the Tenant the
results of the process described in Paragraphs 2 and 3 above on or before
October 4, 2000. The Tenant shall have Five (5) calendar days from the date it
receives the results of the bidding to either accept the bid of the Landlord's
general contractor or the bid of the general contractor it has chosen to bid the
work.
(5) The Landlord shall pay all costs of the
Tenants Work (including necessary building permits) up to but not exceeding Four
Hundred Thousand Dollars ($400,000.00). Landlord shall pay the contractor
selected on a monthly basis based upon the submission by the 30th day of each
month of a requisition utilizing AIA Form 702 to be approved by Landlord and
paid by the 25th of the following month. The Tenant shall either (1) pay for all
of the costs of the Tenant's Work approved to be done by Tenant in excess of
this sum in advance or (2) reduce the requirements of the drawings and
specifications so that the costs will equal the costs to be paid by the
Landlord,. If the cost of Tenant's Work is less than $400,000.00, Landlord will
credit such difference against Tenant's rental payments commencing with the
first months rent.
(6) The General Contractor so selected shall
substantially complete ("Substantial Completion Date")the Tenant's Work in a
good and workmanlike manner so as to make the Leased Premises available for
occupancy by Tenant by the Commencement Date. The Substantial Completion Date
shall be defined as the issuance of a temporary or permanent Certificate of
Occupancy by the Borough of Allendale permitting the use of the Premises by the
Tenant.
(7) All of the construction of Tenants Work as
limited to the work shown on the plans and specifications which shall
incorporate all Code compliance requirements which the contractor must perform,
shall be performed in accordance with all applicable laws, ordinances, rules and
regulations of any duly constituted governmental authority having jurisdiction
thereof.
(8) The time within which the Landlord must
perform pursuant to this paragraph 3 shall be extended for such period of time
as may be attributed to any of the following events: (a) delay in the submission
to Landlord of Tenant approved plans and specifications beyond September 7,
2000;(b) any delay caused to the Landlord in the bidding process by the
incomplete nature of the plans and/or specifications; (c) any delay occasioned
by Tenant's failure to approve the results of the cost and bidding process
described above within the period noted; (d) any delay caused by a delay in the
procurement delivery or installation of specialized equipment;(e) any delay
which may be occasioned by Tenant's change of Tenants Work during the progress
of construction; (f) any delay caused by Tenant performing any part of Tenants
Work or any other work within the Leased Premised not under the control of the
Landlord or the General Contractor; (g) any unreasonable delay in Tenant's
approval of Landlord's or General Contractor's submittals or request for
information during the progress of construction or (h) any other cause
enumerated in Paragraph 28 hereof.
(9) If the Substantial Completion Date of
Tenants Work is delayed by virtue of any action or inaction of the Tenant, then
on the Commencement Date, Tenant shall pay to Landlord, one day's Base and
Additional Rent for each day by which the Substantial Completion Date is delayed
more than five (5) days due to the action or inaction of the Tenant. If the
Substantial Completion Date is delayed by Landlord's action or inaction or that
of its subsidiary general contractor,the Commencement Date and the Tenant
obligation to pay Base Rent and Additional Rent shall be extended accordingly.
(10) Notwithstanding anything to the contrary
in this paragraph (3), the Tenant shall be responsible to pay Base and
Additional Rent commencing January 1, 2001 if the General Contractor selected to
do the Tenant's Work is not the Landlord's subsidiary.
(c) The base rent has been calculated based upon the rentable area
containing 15,400 sq. ft. when measured from the outside of all exterior walls
and the mid-line of any interior demising wall (without deduction for any
exterior recess area covered by the roof of the building) and a pro-rata share
of all utility and mechanical rooms in the building. At the time of substantial
completion of the building, the Landlord's architect shall certify to the
Landlord and Tenant the exact square footage of the building and of the rental
area defined as set forth in this sub-paragraph and there shall be an addition
or subtraction from the Base Rent as the case may be of $12.00 per sq. ft. per
year for the first year pro-rated on a monthly basis for any variance in the
square feet actually certified from 15,400 sq. ft. Any amount so calculated
shall be added to or subtracted from the next months rental payment as the case
may be.
LANDLORDS' FINANCING.
4. Not Used In This Lease.
RENTAL.
5. (a) Tenant covenants and agrees to pay to the
Landlord the following Rental:
(i) a base rent during the Term of this
lease or any extension as may be provided for herein (hereinafter called the
"Base Rent") in the sum stated in the Preamble payable by Tenant in equal
monthly installments as stated on or before the first day of each month, in
advance, to Landlord at the office of Landlord above designated or to such other
place as shall be designated by Landlord, without any prior notice or demand
therefor and without any deduction, abatement or set off for any reason
whatsoever except that the first month's rent, together with any security to be
paid pursuant to Paragraph 30 hereof, shall be paid upon the execution of the
Lease by Tenant;
(ii) All charges payable pursuant to this
lease as additional rental (hereinafter referred to as "Additional Rental");
(iii) In the event that the Commencement
Date shall be other than the first day of a month, then the Tenant shall pay, on
the earlier of the Delivery of Possession or the Commencement Date, the Base
Rent and Additional Rental for the fractional portion of the month on a per diem
basis (calculated on the basis of a thirty-day month) until the first day of the
next succeeding month.
Such Base Rent and Additional Rental are herein
referred to collectively as "Rental".
(b) It is intended that the Rental provided for in
this lease shall be an absolutely net return to Landlord throughout the Term
hereof, free of any expense, charge or other deduction whatsoever, with respect
to the Premises, the Building and/or the ownership, leasing, operation,
management, maintenance, repair, use or occupation thereof, or any portion
thereof, with respect to any interest of Landlord therein, except only as
otherwise expressly provided in this lease. Any attempt by Tenant "to escrow"
any rent due or similar self-help shall constitute a default.
(c) In the event that any payment of Rental due
hereunder shall be overdue, beyond the fifth day of each month a late charge of
5% for each dollar so overdue may be charged by the Landlord for each month or
part thereof that the same remains overdue. This charge shall be in addition to
and not in lieu of any other remedy the Landlord may have under the
circumstances and is in addition to any reasonable fees and charges of any
agents or attorneys Landlord may employ as a result of any default in the
payment of Rental hereunder, whether authorized herein or by law. Any such "late
charges" if not previously paid shall, at the option of the Landlord, be added
to and become part of the succeeding rental payment to be made hereunder and
shall be deemed to constitute additional Rental.
(d) If as a consequence of any act and/or omission
of the Tenant, its agents, employees, representatives or contrac tors or the
failure of the Tenant to promptly comply with all requests and requirements of
utility companies servicing the demised Premises the Delivery of Possession
shall be delayed despite the application by Landlord of due diligence (which
shall not include overtime or weekend work), then and in such event, the
Landlord, by written notice delivered to the Tenant, shall establish the
Commencement Date as the date on which such Date would have occurred pursuant to
the provisions of this lease, had it not been for said acts or omissions of the
Tenant, and the period of the Term shall be adjusted accordingly. It is further
acknowledged that if as a further consequence of said acts or omissions of the
Tenant, the Landlord shall suffer any damage, such as a loss of rental from
other tenants of the Building, then and in such event, the Tenant, on written
notice, shall promptly pay over to the Landlord a sum equal to the damages so
suffered by Landlord, which amount shall be deemed to constitute Additional
Rental.
USE.
6. The Premises are to be used by Tenant solely for the
Permitted Use, subject to and in accordance with all rules, regulations, laws,
ordinances and requirements of all governmental authorities, the Fire Insurance
Rating Organizations and Boards of Fire Insurance Underwriters, and any similar
bodies having jurisdiction thereof, and for no other purpose.
INSURANCE.
7. Tenant shall provide, on or before the earlier of Tenant's
entry in the Premises or the Commencement Date, and keep in force, at all times
during the Term, at its sole cost and expense, a comprehensive public liability
insurance policy, in the names of and for the mutual benefit of Landlord and any
of its designees (without any obligation to pay premium) and Tenant, insuring
the Landlord and Tenant against any claim or liability for personal injury to or
death of any persons, and/or damage to property occurring in, on or about the
Premises, or any appurten ances thereto. Such policy shall provide for limits of
liability thereunder of not less than Three Million ($3,000,000.00) Dollars in
respect to personal injury or death to any person(s) and One Million
($1,000,000) Dollars in respect to property damage. The limit of any such
insurance shall not limit the liability of the Tenant hereunder.
(b) Landlord agrees to obtain and keep in full force
and effect, at all times during the Term, at Tenant's sole cost and expense,
policies of insurance covering the Building and improvements made by the
Landlord to the Premises, against all risks to physical damage with extended
coverage, in amounts equal to the full replacement value of such improvements,
without any co- insurance; rental insurance sufficient to include both Base and
Additional Rental; and such other insurance coverages as Landlord may reasonably
be necessary or proper, all of which insurance coverages shall be in such
amounts and with such companies as Landlord may deem reasonable and proper.
Tenant's pro rata share of the cost of any such insurance shall be paid as
Additional Rental pursuant to Paragraph 20 hereof.
(c) Landlord shall not provide any insurance
covering the Tenant's possessions or business operations. Tenant agrees to
obtain, at its sole cost and expense, an insurance policy covering its contents
and a liability policy covering its business operations which shall include
contractual liability.
(d) Tenant agrees that its insurance policies to be
obtained hereunder shall provide that the insurance carriers shall waive all
rights of subrogation against Landlord and that such policies shall not be
invalidated should the insured waive in writing prior to a loss any or all right
of recovery against any party for losses covered by such policies. Tenant hereby
waives and releases any and all right of recovery which it might otherwise have
against Landlord, its agents and employees, and all liability or responsibility
of Landlord, its agents and employees, for all injury and for loss or damage to
its business, contents, furniture, furnishings, fixtures and other property of
the Tenant, notwithstanding that such injury, loss or damage may result from the
negligence or fault of Landlord, its agents, or employees.
(e) Tenant agrees to deliver to Landlord, at least
fifteen (15) days prior to the time such insurance is first required to be
carried by Tenant, and thereafter at least fifteen (15) days prior to the
expiration of any such policy, either a duplicate original or a certificate of
insurance and a true copy of all policies procured by Tenant in compliance with
its obligations hereunder, together with evidence of payment therefor. All such
policies shall provide for notice of cancellation to be provided thirty (30)
days prior to any cancellation.
INCREASE OF INSURANCE RATES.
8. Tenant agrees, at its sole cost and expense, to promptly
comply with all of the rules and regulations of the Insurance Service
Organization of New Jersey having jurisdiction, or any similar body. If, at any
time, as a result of or in connection with any failure by Tenant to comply with
the foregoing provision, or as a result of any act or omission or commission by
Tenant, its employees, agents, contractors, invitees, licensees or subtenants,
or as a result of or in connection with the use to which the Premises are put,
notwithstanding that such use may be for the purpose herein permitted or that
such use may have been consented to by Landlord, any insurance rate applicable
to the Building and/or to the contents thereof, shall be higher than that which
would be applicable for the least hazardous types of occupancy legally permitted
therein, then and in any of such events, Landlord shall have the right to
terminate this lease upon written notice delivered to the Tenant, or to require
Tenant to pay such additional premiums for all insurance policies in force with
respect to the Building. Tenant shall not use nor install any electrical
equipment that overloads the lines in the Building and Tenant, at its sole cost
and expense, shall promptly make whatever changes are necessary to prevent or
remedy such condition and to comply with all requirements of Landlord, the Board
of Fire Insurance Underwriters or any similar body and any governmental
authority having jurisdiction thereof. For the purposes of this Paragraph, any
finding or schedule of the Fire Insurance Rating Organization or any similar
organization having jurisdiction shall be deemed to be conclusively binding on
the parties hereto.
FIRE AND OTHER CASUALTY.
9. (a) In case of fire or other casualty, Tenant shall give
immediate notice to Landlord. In the event the Premises shall be partially
damaged by fire, the elements or other casualty, but shall not be so destroyed
or damaged as to require practically a rebuilding thereof, then the Landlord
shall repair the same as speedily as practicable to the extent of the scope of
Landlord's work in the original construction of the Premises, and if any portion
of the Premises shall be rendered untenantable, then the Tenant's obligation to
pay Rental hereunder shall abate in the same proportion which the square footage
of the portion rendered untenantable bears to the total square footage of the
Premises until such time as the Landlord shall have substantially repaired the
Premises. In the event that at least fifty (50%) percent of the Premises shall
be damaged, then the Landlord or Tenant shall have the right to terminate the
lease on thirty (30) days' written notice delivered to the other party, in which
event the Rental as abated, if applicable, shall be paid up to the time of such
termination and then and from thenceforth this lease shall come to an end. In
the event that less than fifty percent (50%) of the Premises is damaged,
Landlord shall have One Hundred Twenty (120) days from the date of casualty to
substantially restore the Premises to the same scope of work as Landlord had
provided Tenant at the commencement of this lease. If Landlord has not
substantially restored the Premises in the manner provided herein within such
One Hundred Twenty (120) day period, then tenant shall have the right to
terminate this Lease within thirty (30) days following the expiration of then
aforesaid One Hundred Twenty (120) day period. If at least fifty (50%) percent
of the Building (whether or not the Premises shall have been damaged)shall be
damaged, then the Landlord shall have the right to terminate the lease on thirty
(30) days' written notice delivered to the Tenant, in which event the Rental as
abated, if applicable, shall be paid up to the time of such termination and then
and from thenceforth this lease shall come to an end. In the event the Landlord
does not elect to terminate this lease, then the lease shall remain in full
force and effect, the Rental payments shall be reduced as aforesaid, and the
Landlord shall proceed diligently to rebuild the Building and/or to restore the
Premises to the extent of the scope of its work in originally constructing the
Building, and Premises, provided however, that the Landlord shall not be
required to expend a sum greater that the net proceeds of fire or other casualty
insurance received on account of the damage to the Building and Premises as a
result of such casualty. If the net proceeds of fire or other casualty insurance
shall be insufficient to restore the Premises to the extent of the original
construction of the Building due to any environmental condition which may have
arisen as a result of such casualty.
(b) However, there shall not be any abatement,
reduction or moratorium of rent if the fire or other casualty or damage shall be
the result of carelessness, negligence or improper conduct of Tenant of its
agents, employees, guests, licensees, invitees, subtenants, assignees or
successors. In any such case, Tenant's liability for the payment of the Rental
and the performance of all the covenants, conditions and terms hereof on its
part to be performed shall continue and Tenant shall be liable to Landlord for
the damage or loss suffered by Landlord. If Tenant shall have been insured
against any of the risks herein covered, then the proceeds of such insurance
shall be paid over to Landlord to the extent of Landlord's costs and expenses
and for any other damage or loss suffered by Landlord as a result of such
casualty, and such insurance carrier shall have no recourse against Landlord for
reimbursement.
(c) Landlord agrees that its fire insurance policy
shall provide that the insurance company will waive all rights of subrogation
against the Tenant to the extent of all insurance proceeds actually paid to or
for the benefit of the Landlord.
REPAIRS AND MAINTENANCE.
10. (a) Tenant, at its sole cost and expense, shall take good
care of the Premises and shall keep, repair and maintain the Premises in good
order, condition and repair, and each and every part thereof (including, without
limitation, painting and decorating, and the repair, maintenance and replacement
of any heating, ventilating and air conditioning units or systems), except only
such matters that are expressly stated herein to be within the Landlord's
obligation to maintain, and shall not cause nor permit any dirt, debris or
rubbish to be put, placed or maintained on the sidewalks, driveways, parking
lots, yards, entrances and curbs, in, on or adjacent to the Building. Tenant
further agrees not to use the Premises or permit the Premises to be used in any
manner as to cause excessive depreciation of or to the Building and
improvements, and agrees not to cause nor permit waste of or damage or nuisance
to, in, or about the Premises or the Building.
(b) Tenant shall not make any alterations, improve
ments, and/or additions to the Premises or any part thereof, nor install or
attach any heavy equipment or apparatus, without Landlord's prior consent in
accordance with the provisions of this lease.
(c) Landlord, upon reasonable notice from Tenant,
shall make necessary structural repairs to the exterior walls and shall keep in
good order, condition and repair the exterior foundations, downspouts, gutters
and roof of the Building, excluding, however, all windows, doors, plate glass,
signs and all repairs required by any casualty except as otherwise provided in
Paragraph 9 and 13 hereof. For the purpose of this lease, a structural repair
shall be defined as any structural repair to the structural steel, footings,
foundations, masonry walls, and roof of the demised Premises. Any repairs,
whether structural or otherwise, resulting from damage caused by any act,
omission or negligence of Tenant, any subtenant or concessionaire, or their
respective employees, agents, invitees, licensees or contractors shall be
performed by the Landlord at the sole cost and expense of the Tenant and shall
be deemed to constitute Additional Rental.
(d) Landlord further agrees to maintain, repair and
keep in good order and condition all public or common areas surrounding the
Building which are the property of the Landlord, except as otherwise herein
provided, and agrees to furnish all necessary utilities to such public or common
areas. The costs and expenses incurred by Landlord for maintenance, repairs,
utilities, janitorial service, refuse and snow removal and security of the
public or common areas shall be determined in the reasonable discretion of
Landlord, to ensure the proper quality and the preservation of the reputation of
the Building. Tenant shall pay its proportionate share of all costs and expenses
so incurred by Landlord, as Additional Rental, in accordance with the provisions
of Paragraph 20 hereof.
(e) All common areas are for the general use, in
common, of all tenants of the Building, their employees and guests, and at all
times, are subject to the sole and exclusive control of the Landlord. Pursuant
thereto Landlord shall have the right, from time to time, to establish, modify
and enforce rules and regula tions regarding the common areas, to alter, modify
or otherwise change the common areas, to restrict parking and close all or any
portion of any common parking area as will be legally sufficient to prevent a
dedication or the accrual of any rights to any person or to the public and to do
such other acts, in and to, all common areas as in Landlord's sole judgment,
shall be desirable or advisable to improve or maintain such areas.
(f) Tenant shall have no right of access to the roof
of the Premises or the Building and shall not install, repair, place or replace
any aerial, fan, air conditioner or other device on the roof of the Premises or
the Building without the prior written consent of Landlord. Any aerial, fan, air
conditioner or device installed without such written consent shall be subject to
removal, at Tenant's expense, without notice, at any time. Landlord shall repair
at Tenant's expense, any damage to the Building or roof resulting from the
installation, repair, use, or replacement of any such air conditioner or other
device.
COVENANTS AGAINST LIENS.
11. (a) Tenant shall not do any act, nor make any contract
which may create any lien or other encumbrance upon the Building or Premises,
nor permit nor suffer same to remain, as a result of any labor, work, services
or materials performed, supplied or furnished for or to the Tenant or the
Premises. If, because of any act or omission (or alleged act or omission) of
Tenant, any mechanic's or other lien or encumbrance shall be filed against the
Building or Premises, whether or not such lien or encumbrance is valid or
enforceable as such, Tenant, at its sole cost and expense, shall cause same to
be discharged of record or bonded, within ten (10) days after notice to Tenant
of the filing thereof; and Tenant shall indemnify and save harmless Landlord
against and from all damages, costs, liabilities, suits, penalties, claims and
demands, including reasonable counsel fees, resulting from the creation of such
lien or encumbrance. In the event Tenant fails to so comply, Landlord shall have
the option of discharging or bonding any such lien or encumbrance, and Tenant
agrees to reimburse Landlord for all costs, legal and other expenses incurred in
connection therewith, together with interest at an annual rate equal to two (2%)
percent above the annual interest rate extended by Citicorp to its most favored
borrowers, promptly upon demand, which sums shall be deemed to constitute
Additional Rental. All materialmen, contractors, artisans, mechanics, laborers
and any other persons now or hereafter contracted by Tenant for the furnishing
of any labor, services, materials, supplies or equipment, at any time from the
date hereof until the end of the Term, are hereby charged with notice that they
must look exclusively to Tenant to obtain payment for same.
(b) Nothing in this lease shall be deemed to be, or
construed in any way as constituting, the consent or request of Landlord,
expressed or implied, by inference or otherwise, to any person, firm or
corporation for the performance of any labor or the furnishing of any materials
for any construction, rebuilding, alteration, addition or repair of or to the
Premises or any part thereof, nor as giving Tenant any right, power or authority
to contract for or permit the rendering of any services or the furnishing of any
materials which might in any way give rise to the right to file any lien against
Landlord's interest in the Building. Landlord shall have the right to post and
keep posted at all reasonable times on the Premises any notice which Landlord
shall deem necessary so to post for the protection of Landlord and the Building
from any such lien.
ALTERATIONS.
12. (a) Tenant shall not make, or cause, or permit the making
of any repairs, alterations, additions, or improvements in or to the Premises
without obtaining Landlord's prior written consent thereto in each instance
provided however, that nothing contained herein shall be construed as requiring
Landlord's consent to redecorating items such as repainting or recarpeting
within the Premises or any interior, non-structural improvements where the cost
is less than $15,000. In addition, Landlord's consent to the relocation of
interior, non-structural partitions shall not be unreasonably withheld or
delayed. In the event any such work shall cost in excess of Ten Thousand
($10,000.00) Dollars, such work shall not be commenced until Tenant shall submit
to the Landlord plans and specifications relating to any such repairs,
alterations, additions or improvements, and all such work shall be performed in
accordance with the provisions of this lease. Landlord shall not unreasonably
withhold its consent to any such alteration, addition or improvement, but shall
have the right to determine if such work would reduce the value, size or general
utility of the Building or any portion thereof, or whether such work maintains
the architectural harmony of the Building. Any approval by Landlord as aforesaid
may be upon condition that Tenant furnish the Landlord such evidence of Tenant's
financial ability to assure completion thereof and payment therefor, as Landlord
may reasonably require, including the furnishing of adequate security. All such
repairs, alterations, additions or improvements, when installed or attached to
the Premises, shall belong to and become the property of the Landlord and shall
be surrendered with the Premises and as part thereof, upon the expiration or
sooner termination of this lease, without compensation to Tenant. However, if
Landlord shall so elect, Tenant, at its sole cost and expense, shall remove any
alterations, additions and improvements prior to the expiration or other
termination of this lease and repair all damage caused by such removal and
restore the Premises to the condition they were in prior to the installation of
any such alteration, addition or improvement. Nothing herein contained shall be
construed in any way to restrict Tenant's right to make any alterations,
additions or improvements in Tenant's own movable trade fixtures. The provisions
of this Paragraph are subject to the terms and conditions of any fee mortgage or
ground lease to which this lease may be subordinate, including the Tenant
obtaining the consent of such mortgagee or lessor, if required.
(b) Any work performed by Tenant, irrespective of
cost, shall be subject to the Landlord's inspection and approval after
completion to determine whether it complies with the requirements of this lease.
The approval or consent of the Landlord shall not relieve Tenant of its
obligation that all such repairs, alterations, improvements and/or additions be
constructed and performed in a first-class good and workmanlike manner and in
accordance with all applicable governmental and fire underwriting requirements,
nor constitute a waiver of any rights of Landlord if Tenant fails to perform its
obligations. Tenant, at its sole cost and expense, shall procure all necessary
governmental approvals, permits or certificates in connection with all work
performed by Tenant in, on or at the Premises and shall deliver the original of
all such approvals, permits or certificates to the Landlord, to be retained by
Landlord.
(c) During the course of any and all repairs,
alterations, additions or improvements which the Tenant shall either be required
to perform or which the Tenant shall elect to perform Tenant, at its sole cost
and expense, shall at all times obtain and maintain or cause to be obtained and
maintained, workmen's compensation insurance and any other insurance which shall
then be required by law, together with public liability insurance as set forth
in Paragraph 7 hereof, to insure against any additional hazards created in
connection with the performance of any of the aforesaid work. Prior to the
commencement of any such work, Tenant shall deliver to Landlord copies of all
policies or certificates of insurance with respect to all policies required
pursuant to this Paragraph 12(c).
CONDEMNATION.
13. (a) In the event that the whole of the Premises shall be
taken for any public or quasi-public use under any statute or by right of
eminent domain, or by private purchase in lieu thereof, then this lease shall
automatically terminate as of the date that title shall be taken. In the event
that a part of the Premises shall be so taken as to render the remainder thereof
unusable for the purpose for which the Premises are leased, then Landlord and
Tenant shall each have the right to terminate this lease on thirty (30) days'
written notice to the other, given within sixty (60) days following the date of
such taking. In the event that this lease shall terminate or be terminated, the
Rental hereunder shall be equitably adjusted as of the date of termination.
(b) In the event that a part of the Premises shall
be so taken and this lease shall not terminate or be terminated pursuant to the
provisions of subparagraph (a) above, then the Rental shall be equitably
apportioned according to the square footage of the Premises so taken and this
lease, in all other respects, shall remain in full force and effect, and
Landlord, at its own cost and expense, shall restore the remaining portion of
the Premises to the extent necessary to render it reasonably suitable for the
purpose for which the Premises were leased, provided that such work shall not
exceed the scope of the work required to be done by Landlord in originally
constructing the Premises and provided the cost thereof shall not exceed the
proceeds of its condemnation award for consequential damages.
(c) All compensation awarded or paid upon such a
total or partial taking of the Building or the Premises shall belong to and be
the property of Landlord, and without any sharing by Tenant, whether such
compensation result from diminution in value of the leasehold or to the fee
interest in the Premises. Tenant however, shall have the right to seek and
prosecute any claim directly against the condemning authority in such
condemnation proceedings for moving expenses, inventory and/or movable trade
fixtures, furniture and other personal property belonging to Tenant, so long as
such claim shall not diminish or otherwise adversely affect Landlord's award or
the award of any mortgagee.
(d) Tenant agrees to execute and deliver such
instruments as may be deemed necessary or required to expedite any condemnation
proceedings or to effectuate a proper transfer of title to such governmental or
other public authority, agency, body or public utility seeking to take or
acquire the Premises or any portion thereof. Tenant covenants and agrees to
vacate the Premises, remove all of its personal property therefrom and deliver
up peaceable possession thereof to Landlord or to such other party designated by
Landlord. Failure by Tenant to comply with any provision hereof shall subject
Tenant to such costs, expenses, damages and losses as Landlord may incur by
reason of Tenant's breach hereof.
ACCESS AND RIGHT TO EXHIBIT.
14. (a) Landlord and its designees shall have the right to
place and maintain all utility equipment of any kind, in and on the Premises as
may be necessary or desirable to serve the Building or any portion thereof.
Landlord and its designees shall have the right to enter upon the Premises at
all reasonable hours (and in emergencies at all times):
(i) to inspect the same;
(ii) to make repairs, additions or
alterations to and/or to complete initial construction of, the Premises and/or
to the Building or to prevent waste or depreciation thereof;
(iii) to post "For Sale" signs on the
Premises and to exhibit the Premises to any prospective purchaser or
mortgagee; or
(iv) for any other lawful purpose.
(v) Notwithstanding anything set forth
hereinabove to the contrary, Tenant shall have the right to impose reasonable
restrictions on Landlord's access to the Premises for the purpose of protecting
Tenant's confidential information and trade secrets.
This Paragraph shall not be deemed to be a covenant
by Landlord nor be construed to create an obligation or duty on the part of
Landlord to make such inspection, repairs, additions or alterations except as
otherwise herein provided. Any performance by Landlord hereunder shall not be
deemed a waiver of Tenant's default in failing to perform same, nor shall
Landlord be liable for any inconvenience, disturbance, loss of business, loss of
use of the Premises or any other damage suffered by Tenant, due to said
performance by Landlord, and the obligations of Tenant pursuant to this lease
shall not thereby be affected in any manner whatsoever. Landlord agrees to
exercise due care to cause the least reasonably possible interference with
Tenant's business, but Landlord shall not be required to employ labor on
weekends or on an overtime basis to avoid or reduce any such interference.
(b) For a period commencing one hundred eighty (180)
days prior to the end of the Term, Landlord and its designees shall have
reasonable access to the Premises for the purpose of exhibiting the same to
prospective tenants and to post any "To Let," or "To Lease" signs upon the
Premises.
(c) Landlord shall use its best efforts to complete
any alteration within the Premises with a minimum of interference with the
conduct of Tenant's business operations and as quickly as possible. Landlord
shall have the right to carry material in and on the Premises and to perform
work in or on the Premises pursuant to the provisions of this lease, without the
same constituting an actual or constructive eviction to Tenant, in whole or in
part, without the same permitting any rent reduction or abatement and without
the Tenant having the right to assert any claim for damages other than damage to
the Tenant's tangible property or injury or death to persons, which damage,
injury or death shall be caused directly by the negligence of the Landlord, and
provided that any such claim shall be limited to the extent of the net proceeds
received under any policies of insurance then in effect insuring against such
claim. In no event shall the Landlord be liable for any inconvenience,
disturbance, loss of business, loss of use of the Premises or any consequential
damages which Tenant may suffer.
ASSIGNMENT AND SUBLETTING.
15. Tenant shall not either voluntarily, or by operation of
law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or
any interest therein, and shall not sublet the Premises or any part thereof, or
any right or privilege appurtenant thereto, or allow any other person (the
employees, agents, servants and invitees of Tenant excepted) to occupy or use
their Premises, or any portion thereof, without first obtaining the written
consent of Landlord. When Tenant requests Landlord's consent to such assignment
or subletting, it shall notify Landlord in writing of the name and address of
the proposed assignee or subtenant and the nature and character of the business
of the proposed assignee or subtenant and shall provide financial statements for
the proposed assignee or subtenant. Landlord shall have the option (to be
exercised within thirty (30) days from the submission of Tenant's request) to
cancel this Lease as of the commencement date stated in the proposed sublease or
assignment. If Landlord shall not exercise its option within the time set forth
above, its consent to any proposed assignment or subletting shall not be
unreasonably withheld or delayed. If Landlord approves an assignment or
subletting as herein provided, Tenant shall pay to Landlord, as Additional Rent,
the difference, if any between the Rent plus Additional Rent allocable to that
part of the Premises affected by such assignment or sublease pursuant to the
provisions of this Lease, and the Rent and Additional Rent payable by the
assignee or sublessee to Tenant. A consent to one assignment, subletting,
occupation or use shall not be deemed to be a consent to any other or subsequent
assignment, subletting, occupation or use and consent to any assignment or
subletting shall in no way relieve Tenant of any liability under this Lease. Any
assignment or subletting without Landlord's consent shall be void, and shall, at
the option of the Landlord, constitute a default under this Lease. In the event
that Landlord shall consent to a sublease or assignment hereunder, Tenant shall
pay any brokerage fees related to the subletting or assignment of the Premises
to any broker retained by Tenant or its assignee or sublettee who has earned
said fee as a consequence of his or her efforts in securing the assignee or
sublettee, and forfeit all rights to any renewal options contained herein.
RULES AND REGULATIONS, COMPLIANCE WITH LAWS.
16. (a) Tenant agrees, at all times during the Term
hereof, and at its sole cost and expense:
(i) not to take or permit any action which
would violate Landlord's union contracts, if any, affecting the Building or the
Premises, or which would create any work stoppage, picketing, labor disruption
or dispute, or which would damage, delay or interfere with any work performed or
to be performed by Landlord or by any other persons in or about the Building, or
which hinder the activities or operations of the Landlord in bringing about the
cessation of any work stoppage, picketing or other labor disruption or dispute
affecting the Building or any work being performed or to be performed in or
about the Building;
(ii) to pay promptly and when due, all
taxes, licenses, fees, assessments or other charges levied or imposed upon the
business of Tenant or upon any fixtures, furnishings or equipment in, on or at
the Premises;
(iii) not to commit any waste or nuisance,
nor use the plumbing facilities for any purpose injurious to same or dispose of
any garbage or any other foreign substance therein, nor place a load on any
floor in the Premises exceeding the floor load per square foot which such floor
was designed to carry, nor install, operate and/or maintain in the Premises any
heavy equipment except in a location approved by Landlord, nor install, operate
and/or maintain in the Premises any electrical equipment which will overload the
electrical system therein, or any part thereof, beyond its capacity for proper
and safe operation as determined by Landlord or which does not have
Underwriter's approval.
(iv) to keep the Premises in a neat, clean,
orderly and sanitary condition, free of all insects, rodents,
vermin and pests of every type and kind;
(v) not to use the Premises for any purpose
of business which is illegal, noxious, offensive because of the emission of
noise, smoke, dust or odors or which could damage the Building or be a nuisance
or menace to or interfere with, any other tenants or the public;
(vi) to comply with all requirements of all
suppliers of public utility services to the Building and not to suffer or permit
any act or omission the consequence of which could be to cause the interruption,
curtailment, limitation or cessation of any utility service to the Building;
(vii) to retain trash, rubbish and garbage
created by the Tenant, its representatives, guests, licensees, or invitees
within the demised Premises until removed from the site at Tenant's expense.
(b) Tenant further agrees, at its sole cost and
expense, to promptly comply, or cause compliance, with all laws, ordinances,
orders, rules, regulations and requirements of all federal, state, county and
municipal governments, and appropriate departments, commissions, boards and
offices thereof, foreseen or unforseen, ordinary as well as extraordinary, and
whether or not the same shall presently be within the contemplation of the
parties hereto or shall involve any change of governmental policy or require
extraordinary or structural repairs (other than those which Landlord is required
to make under Paragraph 10 (c) and (d), unless the same are due to the use or
occupancy of the Tenant), alterations, equipment or additions or any work of any
kind or irrespective of the costs thereof, which may be applicable to the
Premises, or the purposes to which the Premises are put, or manner of use of the
Premises at the commencement of or during the Term. The provisions of Paragraph
12 shall apply to all work to be performed by Tenant pursuant to this Paragraph.
Notwithstanding the foregoing, Landlord shall cure any violations arising from
Landlord's original failure to comply with laws, ordinances, orders, rules,
regulations and requirements presently applicable to the construction of the
Building.
(c) No abatement, diminution or reduction of the
Rental or other charges required to be paid by Tenant pursuant to the terms of
this lease, shall be claimed by or allowed to, the Tenant for any inconvenience,
interruption, cessation or loss of business or otherwise caused directly or
indirectly by any present or future laws, rules, requirements, orders,
directions, ordinances or regulations of the federal, state, county or municipal
government, or of any other governmental or lawful authority whatsoever, or as a
result of any diminution of the amount of space used by Tenant caused by legally
required changes in the construction, equipment, operation or use of the
Premises.
(d) Tenant, following notice to Landlord, shall have
the right to contest by appropriate legal proceedings, at its sole cost and
expense, the validity of any law, ordinance, order, rule, regulation or
requirement of the nature herein referred to, provided, however, that:
(i) any noncompliance shall not constitute a
crime on the part of the Landlord or otherwise adversely affect,
jeopardize or threaten the interest of Landlord;
(ii) Tenant shall diligently prosecute any
such contest to a final determination by a court, department or governmental
authority having final jurisdiction and to keep Landlord advised in writing as
to all changes in status and determinations in connection with any such
proceedings; and
(iii) Tenant shall indemnify and save
harmless Landlord against any and all losses, costs, expenses, claims,
penalties, actions, demands, liabilities, judgments or other damages which
Landlord may sustain by reason of such contest or as a result of Tenant's
failure or delay in compliance. It is agreed however that Landlord has the right
to demand that the Tenant furnish adequate security to ensure its ability to
perform its indemnity obligations hereunder, which security if so requested,
shall be furnished to Landlord prior to the Tenant commencing or continuing with
such contest, as the case may be. In no event, however, shall Tenant defer
compliance if such deferment would constitute a violation of any of the
provisions of any mortgage or ground lease to which this lease is or shall be
subordinate. Landlord agrees to cooperate reasonably with Tenant, and to execute
any documents or pleadings reasonably required for the purpose of any such
contest, provided that the same shall be without cost or expense to Landlord.
Landlord shall have the right, but not the obligation to contest by appropriate
legal proceedings, at Landlord's expense, any such law, ordinance, rule,
regulation or requirement.
UTILITIES.
17. Tenant agrees to pay as and when the same become due and
payable, all water rents, rates and charges, all sewer rents and all similar
charges assessed or charged to the Premises during the Term, if any, all charges
for electricity, gas, heat, steam, hot water, and other utilities supplied to
the Premises during the Term, together with cost of repair, maintenance,
replacement and reading of all meters measuring Tenant's use or consumption
thereof, whether supplied by Landlord or by a public or private utility company.
In the event that Landlord shall supply any or all of the aforesaid services,
the charges therefor shall be deemed Additional Rental and be collectible as
such on the first day of the following month. In the event that any or all of
the aforesaid services shall be supplied by others and are not paid as the same
become due and payable, Landlord shall have the right, but not the obligation to
make such payments, in which event, a sum equal to any such payments shall be
paid on the first day of the following month, as Additional Rental, and shall be
collectible as such, together with interest at an annual rate equal to two (2%)
percent above the annual interest rate extended by Citicorp to its most favored
borrowers as of the date of payment, and which interest shall commence to run
from the date of payment. In no event shall Landlord be responsible or liable
for the failure to supply Tenant or for the failure of the Tenant to receive,
any utility service, nor shall Tenant be entitled to any cessation, abatement,
reduction or other offset of Rental in the event of any failure to receive any
utility service.
SIGNS.
18. Tenant may not provide, install or maintain any exterior
signs on the roof or in the windows; nor shall the Tenant provide, install or
maintain any exterior signs on the facade or walls of the Building or on any
grounds adjacent thereto, unless:
(i) such installation be made in such
manner as will not affect any guarantee which shall then be in force and
effect;
(ii) all such signs shall have been
approved by Landlord in writing before installation which consent shall not be
unreasonably withheld or delayed ; and
(iii) all such signs must at all times
conform to all applicable rules, regulations, codes and ordinances of any
governmental agencies having jurisdiction there over, and must comply with
Landlord's rules & regulations governing such signs. All such signs shall be
provided, installed, maintained and removed at the termination of the lease, at
Tenant's sole cost and expense. Tenant further agrees that it will not place any
advertisements or other type of structure or obstruction on the roof facade or
walls of the Building and that it shall not operate any loudspeaker or other
device which can be heard outside of the Premises. In the event that Landlord or
its agents deem it necessary to remove any such signs in order to paint or make
any repairs, alterations or improvements in or upon the Building or any part
thereof, they may be so removed, but shall be replaced at Landlord's expense
when the said repairs, alterations or improvements shall have been completed.
Nothing contained in this Paragraph shall create any obligation on the part of
the Landlord to make any repairs, alterations or improvements.
TAXES.
19. (a) Tenant covenants and agrees that it shall pay to
Landlord, as Additional Rental, its proportionate share of all real estate
taxes, assessments, added assessments and other governmental charges or
substitutes therefor levied, imposed, assessed or fixed on or against the
Building and land constituting the entire tax lot on which the Building is
constructed or arising from the use, occupancy or possession thereof, during the
Term hereof (hereinafter collectively referred to as the "Taxes"). The
proportionate share of Taxes to be paid by Tenant is set forth in Paragraph 20
of this lease.
(b) Landlord shall have the right to contest in good
faith any such tax, assessment or added assessment and all costs and expenses,
including, but not limited to, all legal fees, shall be deemed to constitute
additional charges for which Tenant shall pay its proportionate share, as set
forth in Paragraph 20 hereof. Tenant shall pay its share of all such costs and
expenses, as Additional Rental, on the first day of the month following demand
therefor. Provided that the Tenant shall have paid its proportionate share of
all costs and expenses in accordance with the provisions of this Paragraph
19(b), Tenant shall be entitled to the same proportionate share of the net
proceeds of any refund received by the Landlord as a result of such contest.
Landlord agrees to notify Tenant of the filing of any tax appeal or contest, not
later than July 15 of any calendar year for which an appeal is to be taken.
(c) In the event that Landlord shall fail to so
notify Tenant, then and in such event, Tenant shall have the right to contest in
good faith any such tax, assessment or added assessment, at its own cost and
expense, provided, however, that notwithstanding such contest, Tenant at all
times: shall when due, pay its proportionate share thereof; shall comply with
all applicable laws, rules and regulations regarding the payment of taxes; shall
not take any action which would adversely affect, threaten or jeopardize the
interest of the Landlord in the Building or land; shall promptly pay, indemnify
and save Landlord harmless from, all penalties and interest which may be charged
or imposed as a result of or during the pendency of, any such contest. In the
event of any such contest by the Tenant, Landlord agrees to reasonably cooperate
and to execute any necessary papers, provided however, that the same shall be
without any cost or expense to the Landlord. However, nothing herein shall
require the Landlord to withhold the payment of any tax, interest or penalty
otherwise due and owing to, or charged by, the taxing authority.
(d) It is further agreed that for the first and last
Lease Years of the Term hereof, the portion of all Taxes, other than such as
result from added assessments, to be paid by the Tenant shall be pro rated,
depending on the proportion which each such Lease Year shall bear to the tax
year in which it falls. The portion of Taxes resulting from added assessments to
be paid by Tenant during the first and last Lease Years of the Term shall be pro
rated depending on the proportion which such Lease Year shall bear to the
portion of the tax year for which the added assessment is charged.
(e) If at any time during the Term hereof, pursuant
to the laws of the Municipality, the County of Bergen, the State of New Jersey
or the United States of America, a tax or excise on rents or other tax, however
described, is levied or assessed by any Municipality, County, State or Country
or any political subdivision thereof, against the Landlord or the Rental
reserved hereunder, or any part thereof, as a substitute, in whole or in part,
for any revenues derived from any tax assessed or imposed by any such political
entity on land and buildings, the Tenant covenants to pay to Landlord, such sum
as shall be necessary to pay and discharge such tax or excise on rents or other
tax, which sum shall be paid to Landlord in the manner herein set forth for
Taxes, provided, however, that the parties shall have the right to contest said
levy in the same manner as provided herein for Taxes.
(f) Except as otherwise provided herein, Tenant
shall not be obligated or required hereunder to pay any franchise, excise,
corporate, estate, inheritance, succession, capital levy or transfer tax of
Landlord, or any income, profit or revenue tax upon the income or receipts of
Landlord.
(g) Tenant shall be responsible for and shall pay
prior to the time when such payment shall be deemed delinquent, all taxes
assessed during the Term against any leasehold interest, or any improvements,
alterations, additions, fixtures or personal property of any nature placed in,
on or about the Premises by the Tenant, whether such tax shall have been levied
or assessed against the Landlord or the Tenant.
ADDITIONAL CHARGES.
20. (a) In addition to all other rental charges provided
for in this lease, the Tenant agrees to pay as "Additional Rental,"
its proportionate share of:
(i) all insurance premium costs incurred by
Landlord, if any in connection with its obtaining and maintaining of fire,
extended coverage and all risk insurance; rental insurance sufficient to include
both Base Rent and Additional Rental; sprinkler damage insurance; and public
liability insurance, all of which insurance coverages, if maintained, shall be
in such amounts and with such companies as Landlord may deem reasonable or
proper;
(ii) all costs and expenses incurred by
Landlord in connection with the Landlord's maintenance and structural and
non-structural repair of the entire premises of which the Leased Premises are a
part, in accordance with the provisions of this lease, including, but not
limited to, the building grounds, parking area, utilities, janitorial service,
if the same shall be furnished by the Landlord, as well as all other costs, fees
and expenses incurred by the Landlord in performing its obligations hereunder;
and
(iii) management fees for the operation
of the Building, at an annual sum equal to four (4%) percent of the total annual
Base Rent for the building.
(b) It is acknowledged that the total annual
Additional Rental to be paid by the Tenant, pursuant to the provisions of
Paragraph 19 and 20 of this lease, cannot be determined except on an annual
basis. It is therefore agreed that, in addition to the payments of Additional
Rental as may be provided for elsewhere in this lease, the Tenant shall pay the
estimated monthly sum set forth in (10) of the Preamble on account of its
Additional Rental obligations pursuant to the provisions of Paragraphs 19 and 20
of this lease. Said estimated payments shall be paid in advance, on the first
day of each month, and shall be based on an annual period from January l through
December 31 during each year of the Term hereof, and shall be adjusted annually
within ninety (90) days following the conclusion of each such annual period by
written notice delivered by Landlord to Tenant. Said notice shall set forth the
total amount of the costs and expenses incurred by the Landlord for such annual
period, the sum which represents the proportion to be paid by the Tenant, the
sum actually paid by Tenant for such period, and the amount of any required
adjustment. Said notice shall also set forth the estimated monthly payment to be
paid by Tenant for the following annual period.
(c) For the first and last Lease Years of the Term
hereof, the portion of Additional Rental to be paid by the Tenant, other than
for real estate taxes, shall be pro rated depending on the proportion which each
such Lease Year shall bear to the aforesaid annual period in which it falls.
NON-LIABILITY OF LANDLORD.
21. (a) Landlord shall not be liable for any damage or injury
which may be sustained by Tenant or by any other person, as a consequence of the
failure, breakage, leakage or obstruction of the street or sub-surface; or of
the water, plumbing, steam, sewer, waste or soil pipes; or of the roof, walls,
drains, leaders, gutters, valleys, downspouts or the like; or of the electrical,
gas, power, conveyor, refrigeration, sprinkler, air conditioning or heating
systems; or of the elevators or hoisting equipment; or of any other structural
failure; or by reason of the elements; or resulting from theft or pilferage; or
resulting from fire, explosion or other casualty; or resulting from the
carelessness, negligence or improper conduct on the part of the Tenant, any
other tenant, or of Landlord, their agents, employees, guests, licensees,
invitees, subtenants, assignees or successors; or attributable to any
interference with, interruption of or failure, beyond the control of Landlord,
of any services to be furnished or supplied by Landlord. All property kept,
maintained or stored in, on or at the Premises shall be so kept, maintained or
stored at the sole risk of the Tenant.
(b) Landlord shall not be liable to Tenant or to any
person or entity claiming through the Tenant, nor shall Tenant be excused from
the performance of any obligation hereunder, due to any breach or violation by
Landlord, by any other tenant or by any other person or entity, of:
(i) any rule or regulation established by
Landlord; or
(ii) any provision, covenant, term or
condition of any other agreement affecting the Building and lands or any portion
thereof. Further, Landlord shall not be liable, nor shall Tenant be excused from
the performance of any obligation hereunder, due to the Landlord enforcing any
right or remedy against the Tenant and/or against other tenants of the Building,
but not against all tenants of the Building.
INDEMNITY.
22. Landlord and Tenant agrees, at its sole cost and expense,
to indemnify and save each other harmless from and against any and all claims,
actions, demands and suits, of third parties for, in connection with, or
resulting from, any accident, injury or damage whatsoever caused to any person
or property arising, directly or indirectly, in whole or in part, out of the
business conducted in or the use of the Premises, or occurring in, on or about
the Premises or any part thereof, or arising, directly or indirectly, in whole
or in part, from any act or omission of the party to be charged or any of their
concessionaire or subtenant or their respective licensees, servants, agents,
employees or contractors, or arising out of the breach or default of the party
to be charged of any term, provision, covenant or condition herein contained,
and from and against any and all losses, costs, expenses, judgments and
liabilities incurred in connection with any claim, action, demand, suit or other
proceeding brought thereon. Said indemnity shall include defending or resisting
any proceeding by attorneys reasonably satisfactory to the party being
indemnified. It is agreed that attorneys designated by insurance carrier of the
indemnifying party shall be deemed to be satisfactory.
RIGHT TO CURE DEFAULT.
23. In the event Tenant shall fail to comply fully with any of
its obligations hereunder, then Landlord shall have the right, at its option to
cure such breach, at Tenant's expense, upon ten (10) days' prior written notice
to Tenant, except in cases of emergency (in which event no notice need be
given), and if Tenant shall fail to cure said default within such period,
provided however, that if said default cannot be cured within said period, then
Tenant shall have commenced in good faith to cure such default within said ten
(10) day period and shall continue the curing thereof diligently thereafter.
Tenant agrees to reimburse Landlord promptly (as Additional Rental) for all
costs and expenses incurred as a result thereof or in connection therewith,
together with interest at an annual rate equal to two (2%) percent above the
annual interest rate extended by Citicorp to its most favored borrowers as of
the date on which the Landlord made such payment and which interest shall
commence to run from the date on which Landlord made any such payment. Any
action so taken by Landlord pursuant to this lease shall not serve to waive or
release Tenant from its performance of any obligation hereunder.
REMEDIES UPON DEFAULT.
24. (a) In the event Tenant shall:
(i) default in the payment of the Rental
reserved herein or in making any other payment herein provided; or
(ii) default in the observance of any of the
other terms, covenants and conditions of this lease, which default continues for
ten (10) days following the delivery of written notice thereof, as hereinafter
required; or
(iii) abandon, desert or vacate the
Premises; or
(iv) assign, sublet or permit the Premises
to be occupied by someone other than Tenant, except as herein
provided; or
(v) make any assignment for the benefit of
creditors, file a voluntary petition in bankruptcy, be by any court adjudicated
a bankrupt, take the benefit of any insolvency act or be dissolved or
liquidated, voluntarily or involuntarily, or if a receiver or trustee of Tenant
and/or its property shall be appointed in any proceedings or if any Guarantor
hereunder shall cause or suffer any of such events to occur with respect to
itself; or
(vi) record or attempt to record this
lease; or
(vii) suffer or permit any execution,
attachment or other similar process to issue against Tenant or a substantial
portion of its property or assets, or suffer or permit the Premises to be taken
and/or occupied or attempted to be taken and/or occupied by one other than the
Tenant; or
(viii) remove or attempt to remove, or in
the judgment of Landlord, manifest an intention to remove its goods or property
from the Premises, other than in the ordinary course of its business; then, upon
the happening of any of the events set forth in this Paragraph, Landlord shall
have the right to terminate this lease and the Term hereof upon not less than
ten (10) days' written notice to Tenant, with the same force and effect as
though the date so specified were the date hereinabove first set forth as the
date of the expiration of the Term (but Tenant shall remain liable to Landlord
as hereinafter provided), and at the expiration of the period provided in said
notice, the Term hereof and all of the Tenant's right, title and interest
hereunder shall cease and terminate, and Landlord without further notice, may
reenter the Premises, remove the Tenant and its property therefrom, and have
possession and enjoyment of the same, and/or may recover possession thereof as
prescribed by law relating to summary proceedings or otherwise, without any
liability for damages or prosecution therefrom, it being understood that no
demand for the Rental, no reentry for condition broken and no notice to quit or
other notice prescribed by law shall be necessary to enable Landlord to recover
such possession, but that all rights to any such demand, reentry, notice or
other prerequisites are hereby expressly waived by Tenant.
(b) In the event of any such default, reentry,
expiration and/or dispossess:
(i) the Rental shall become due and be paid
up to the time of such reentry, dispossess and/or expiration, together with such
costs and expenses as Landlord may reasonably incur in reacquiring possession of
the Premises, for reasonable legal expenses, reasonable attorneys and reasonable
brokerage fees, putting or restoring the Premises in or to good order and
altering or preparing the same for re-rental;
(ii) Landlord shall use its best efforts to
relet the Premises or any part or parts thereof, either in the name of Landlord
or otherwise, for a term or terms which may, at Landlord's option be less than
or exceed the period which would otherwise have constituted the balance of the
Term, for such rental and on such terms as Landlord shall deem reasonable;
(iii) Tenant, or the legal representatives
of Tenant, shall pay Landlord any deficiency between the Rental hereby
covenanted to be paid and the net amount, if any, of the rents collected on
account of any reletting of the Premises for each month of the period which
would otherwise have constituted the balance of the Term. In computing such sum,
there shall be added to the Rental hereby covenanted to be paid, such expenses
of Landlord as are referred to in subparagraph (b)(i) of this Paragraph. Any
such deficiency shall be paid in monthly install ments by Tenant on the first
day of each month, in advance, and any suit brought to collect the amount of the
deficiency for any month shall not prejudice in any way the rights of Landlord
to collect the deficiency for any subsequent month by a similar proceeding or by
joining, consolidating or otherwise including in one action, any and all claims
for subsequent periods;
(iv) notwithstanding any other provisions of
this lease, Landlord shall be entitled, at its option, in addition and without
prejudice to any other rights and remedies it may have hereunder or at law or in
equity, to recover from Tenant as damages, in addition to any Rental unpaid or
accrued to the date of such reentry, expiration and/or dispossess, together with
all of the additional costs and expenses incurred by Landlord, an amount equal
to the difference between the Rental covenanted to be paid hereunder for what
would otherwise have been the unexpired portion of the Term had such reentry,
expiration and/or dispossess not occurred, and the then fair and reasonable
rental value of the Premises for such unexpired portion of the Term, both
discounted at the rate of four (4%) percent per annum to present worth. Landlord
shall be entitled to recover and receive the full amount of such damages at
whatever time after such reentry, expiration and/or dispossess it seeks to
recover the same, without limiting or prejudicing the right of Landlord to seek
as damages an amount equal to the maximum amount allowed by applicable law at
the time when such damages are sought. In determining the then fair and
reasonable rental value of the Premises, the rental realization upon any
reletting, if such reletting shall be accomplished within a reasonable time
after such reentry, expiration and/or dispossess, shall be deemed prima facie to
be such fair and reasonable rental value. Landlord shall be entitled, in
addition to the amount of such difference, to also recover such expenses as are
referred to in subparagraph (b)(i) of this Paragraph;
(c) Landlord may make such alterations, repairs,
replacements and/or decorations in or on the Premises as it, in its reasonable
judgment, considers advisable or necessary for the purpose of reletting the
Premises; and the making of such alterations, repairs, replacements and/or
decorations shall not operate or be construed to relieve Tenant from its
liability hereunder. Landlord shall in no event be liable in any way whatever
for any failure to relet the Premises, or in the event that the Premises are
relet, for the reasonableness of the rental or for the failure to collect any
rent under such reletting.
(d) In the event of a breach or threatened breach or
violation by Tenant of any of the covenants, conditions, terms or provisions of
this lease, Landlord shall have the right to obtain an injunction or to invoke
any remedy allowed at law or in equity, without limitation and in addition to,
all rights and remedies herein provided for.
(e) No receipt of Rental by Landlord from Tenant
after the due date thereof or the termination in any manner of this lease, or
the performance by Tenant of any obligation hereunder after the period stated in
any notice given pursuant to this lease, shall reinstate, continue or extend the
lease or the Term thereof, affect any such notice or cure any default
theretofore arising hereunder. No receipt of Rental after the commencement of
suit, or after final judgment for possession of the Premises, shall reinstate,
cure, continue or extend the lease or the Term thereof or affect said suit or
said judgment.
(f) The rights and remedies of Landlord specified in
this lease, as well as the rights and remedies to which the Landlord is entitled
by law or in equity, are cumulative and are not intended to be exclusive of or
preclude the exercise of any other rights or remedies which may be available to
the Landlord in the event of a breach by Tenant of any provision of this lease.
(g) In no event shall the Tenant be entitled to
receive all or any portion of any net surplus monies obtained or received by
Landlord either in connection with any reletting or as a result of the exercise
of any other right or remedy to which Landlord may be entitled.
WAIVER OF REDEMPTION.
25. Upon the expiration or sooner termination of this lease or
in the event of entry of judgment for the recovery of the possession of the
Premises in any action or proceeding, or if Landlord shall enter the Premises by
process of law or otherwise, Tenant, for itself and all persons claiming through
or under Tenant, including, but not limited to, its creditors hereby waives and
surrenders any right or privileges of redemption provided or permitted by any
statute, law or decision now or hereafter in force, to the extent legally
authorized and does hereby waive and surrender up all rights or privileges which
it may or might have under any by reason of any present or future law or
decision, to redeem the Premises or for a continuation of this lease after
having been dispossessed or ejected therefrom by process of law, or otherwise.
MORTGAGE PRIORITY.
26. This lease shall be and hereby is made subject and
subordinate at all times to the lien of all ground and underlying leases and to
all mortgages and all advances made thereon which may now or hereafter affect
the Building, and to all increases, renewals, modifications, consolidations,
participations, replace ments and extensions thereof, irrespective of the time
of recording such lien, without the necessity of any further instrument of
subordination. In the event, however, that Landlord or any lessor or mortgagee
desires confirmation of such subordination, Tenant shall promptly execute and
deliver any certificate or instrument that may be requested. Tenant hereby
constitutes and irrevocably appoints Landlord as its attorney-in-fact to execute
any such certificates for and on its behalf. Tenant shall not have the right to
place any lien or encumbrance of any kind against the Premises, or any of its
fixtures, furniture, equipment or improvements, other than a chattel mortgage on
its movable trade fixtures.
SURRENDER OF PREMISES.
27. On the expiration date or sooner termination of the Term,
Tenant shall quit and surrender the Premises to Landlord, in broom-clean good
condition and repair, reasonable wear and tear excepted, as well as all keys to
the Premises, together with all alterations, additions and improvements which
may have been made in, on or to the Premises, except for movable furniture and
equipment, or unattached movable trade fixtures put in at the sole expense of
Tenant; provided, however, that Tenant shall ascertain from Landlord, at least
thirty (30) days prior to the end of the Term, whether Landlord desires to have
the Premises or any part thereof restored to the condition in which it was
originally delivered to Tenant, reasonable wear and tear excepted. In the event
Landlord shall so desire, then Tenant, prior to the end of the Term, at its sole
cost and expense, shall so restore the Premises, remove therefrom all of its
property together with such alterations, additions and improvements as may be
requested by Landlord, and fix and repair any and all damage or defacement to
the Building and/or lands caused by the installation and/or removal of
alterations, additions, improvements, furniture, equipment, trade fixtures or
any other property excepting improvements made by Landlord and Tenant at the
beginning of the Term pursuant to the Work Letter annexed hereto as Exhibit C.
Any or all of such property, alterations, additions or improvements not so
removed, at Landlord's option, shall become the exclusive property of Landlord
or be disposed of by Landlord at Tenant's cost and expense, without further
notice or demand. If the Premises be not surrendered as and when aforesaid,
Tenant shall indemnify Landlord against any damages, loss or liability resulting
therefrom, including, without limitation, any claims made by any succeeding
occupant founded on such delay. Tenant's obligation under this Paragraph shall
survive the expiration or sooner termination of the Term.
UNAVOIDABLE DELAYS.
28. (a) If, as a result of strikes, lockouts, labor disputes,
inability to obtain labor, materials or reasonable substitutes therefor, acts of
God, governmental restrictions, regulations or controls, enemy or hostile
governmental action, civil commotion, insurrection, revolution, sabotage, fire
or other casualty, acts or failure to act by Tenant or any other tenant or other
conditions beyond the control of Landlord, whether prior to or during the Term,
Landlord shall fail punctually to perform any lease obligation, then and in any
of such events, such obligation shall be punctually performed as soon as
practicable after such condition shall abate. In the event that Landlord, as a
result of any such condition, shall be unable to exercise any right or option
within any time limit provided in this lease, such time limit shall be deemed
extended for a period equal to the duration of such condition. The failure of
Landlord to perform any lease obligation for the reasons set forth herein shall
not affect, curtail, impair or excuse this lease or the obligations of Tenant
hereunder.
(b) No diminution or abatement of rent, or other
compensation, shall be claimed or allowed for inconvenience or discomfort
arising from the making of repairs or improvements to the Building or to its
appliances, or arising from the construction of or repairs or improvements to,
other buildings, structures, lands or appliances, whether or not the same shall
be owned by Landlord. In respect to the various "services", if any, to be
furnished by the Landlord to the Tenant, it is agreed that there shall be no
diminution or abatement of the rent, or any other compensation, for interruption
or curtailment of such "service", when such interruption or curtailment shall be
due to accident, alterations or repairs necessary to be made or to inability or
difficulty in securing supplies or labor for the maintenance of such "service"
or to some other cause, not gross negligence on the part of the Landlord. No
such interruption or curtailment of any such "service" nor any non-performance
by Landlord pursuant to subparagraph (a) of this Paragraph, shall be deemed a
constructive eviction, nor shall there be any abatement or diminution of rent
because of making of repairs, improvements or decorations to the Premises after
the date above fixed for the commencement of the Term, it being understood that
the Rental shall in any event, commence to run at such date so above fixed.
LANDLORD CONSENT.
29. With respect to any provision hereof which provides for
the consent or approval of Landlord, said consent or approval shall be in
writing and shall not be unreasonably withheld or delayed. Tenant in no event,
shall be entitled to make any claim, and Tenant hereby waives any claim for
money damages, whether by way of set off, counterclaim, defense or otherwise,
based upon any claim or assertion by Tenant that Landlord has unreasonably
withheld or delayed any consent or approval. Tenant's sole remedies shall be an
action or proceeding to enforce any such provision, or for any injunction or
declaratory judgment. All expenses reasonably incurred by Landlord in reviewing
and acting upon any request for consent hereunder, including but not limited to,
attorneys' and architects' fees, shall be reimbursed by Tenant to Landlord,
shall be deemed to constitute Additional Rental and shall be paid over to
Landlord on the first day of the month following demand therefor.
SECURITY.
30. (a) Tenant, simultaneously herewith, has deposited with
Landlord the sum set forth in (8) of the Preamble to be held by Landlord as
security for the faithful performance by Tenant of all of the terms, covenants,
provisions and conditions of this lease to be performed by Tenant. In the event
Tenant defaults with respect to any of the terms, covenants, provisions or
conditions of this lease, including, but not limited to, the payment of Rental,
then without notice to Tenant, and in addition to any other remedies to which
Landlord may be entitled by virtue of the provisions of this lease, or pursuant
to law or equity, Landlord shall have the right to use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any Rental or any other sum as to which Tenant is in default or any
sum which Landlord may expend or may be required to expend by reason of Tenant's
default, including, but not limited to, damages or deficiencies resulting from
the reletting of the Premises, whether such damages or deficiencies accrued
before or after summary proceedings or other reentry by Landlord.
(b) In the event the entire security or any portion
thereof is appropriated or applied by Landlord for the payment of Rental or any
other sums due and payable to Landlord by Tenant hereunder, or for the payment
or reimbursement of any cost or expense incurred by Landlord as a result of any
default or failure of performance by Tenant hereunder, then Tenant, upon the
written demand of Landlord, shall forthwith remit to Landlord a sufficient
amount in cash to restore said security to the original amount in cash to
restore said security to the original sum deposited, which sum is hereby deemed
to be Additional Rental, and Tenant's failure to do so within five (5) days
after the forwarding of such demand shall constitute a breach of this lease.
(c) In the event that Tenant shall fully and
faithfully comply with all the terms, provisions, covenants and conditions of
this lease, then the security shall be returned to the Tenant on the expiration
of the Term hereof.
(d) Tenant shall not be entitled to any interest on
the aforesaid deposit of security. Tenant further covenants that it will not
assign or encumber or attempt to assign or encumber the security deposited
herein except as permitted under the provisions of Paragraph 15 hereof, and that
neither Landlord nor its successors or assigns shall be bound by any such
assignment, encumbrance, attempted assignment or attempted encumbrance.
(e) In the event of a sale or ground leasing of the
Premises, Landlord shall have the right to transfer the security to the
purchaser of lessee, shall furnish Tenant with written notice thereof and
thereupon shall be released by tenant from all liability for the return of such
security, and Tenant agrees to look to the transferee solely for the application
of said security. It is agreed that the provisions hereof shall apply to every
transfer or assignment made of the security to a new transferee.
(f) It is expressly understood and agreed that the
exercise of any remedy by Landlord for any default on the part of Tenant shall
not be deemed such a termination of this lease as to entitle Tenant to the
recovery of the said security, and said security shall be retained and remain in
the possession of Landlord as hereinbefore stated.
CERTIFICATION.
31. Tenant agrees, without charge and at any time, within ten
(10) days after written request of Landlord, to certify by a written instrument
duly executed, acknowledged and delivered to Landlord or any other person, firm
or corporation specified in such request:
(a) as to whether this lease has been modified or
amended, and if so the substance and manner of such modification or
amendment;
(b) as to the validity and force and effect of this
lease;
(c) as to the existence of any default thereunder;
(d) as to the existence of any offsets, counter
claims or defenses thereto on the part of Tenant;
(e) as to the commencement and expiration dates of
the Term;
(f) as to the dates to which Rental payments have
been made;
(g) as to any other matters as may reasonably be so
requested.
Any such certificate may be relied upon by Landlord and any
other person, firm or corporation to whom the same may be exhibited or
delivered, and the Tenant shall be bound by the contents of such certificate.
The Tenant hereby constitutes and irrevocably appoints Landlord as its
attorney-in-fact to execute any such instrument or other writing for and on
behalf of the Tenant if Tenant shall fail or refuse to execute the instrument
within the aforesaid ten (10) day period.
Tenant further agrees to furnish to Landlord at any time, but
not more frequently than once per year, within ten (10) days after written
request of Landlord, a copy of its financial statement for its last full fiscal
year, certified by a corporate officer and prepared by independent Certified
Public Accountants, including, but not limited to, a profit and loss statement.
WAIVER OF TRIAL BY JURY.
32. It is further agreed by and between the parties hereto
that they shall and do hereby waive trial by jury in any action, proceeding or
counterclaim brought by either of the parties hereto against the other on any
matters whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises,
and/or any claim or injury or damage.
QUIET ENJOYMENT.
33. Landlord covenants and agrees with Tenant that upon
Tenant's paying the Rental and observing and performing all of the terms,
provisions, covenants and conditions on its part to be observed and performed,
Tenant may peaceably and quietly enjoy the Premises during the Term hereof,
subject however, to all of the terms, conditions, covenants and provisions of
this lease and to any mortgage or ground lease to which this lease is subject.
In the event of any breach by Landlord of this covenant, provided the same would
in law or equity entitle Tenant to cancel, Tenant may, by not less than thirty
(30) days' written notice given to Landlord, cancel this lease, unless within
such thirty (30) day period, Landlord shall have commenced appropriate action to
cure such breach and shall thereafter proceed diligently to cure such breach.
Upon such cancellation, all rights of either party against the other shall cease
and the term shall expire with the same force and effect as if the date of such
cancellation were the date originally fixed herein for the expiration of the
Term. Such right of cancellation shall be Tenant's sole remedy hereunder for a
breach by Landlord of the covenants herein set forth.
LANDLORD.
34. (a) The term "Landlord" as used in this lease means only
the owner, the holder of a lease or the mortgage in possession for the time
being of the Premises, so that in the event of any sale of the land and Building
of an assignment of this lease or any underlying lease, Landlord herein shall be
and hereby is entirely freed and relieved of all obligations of Landlord
hereunder without the necessity of further agreement between the parties and
such purchaser, assignee or lessee that the purchaser, assignee or lessee has
assumed and agreed to observe and perform all obligations of Landlord hereunder.
(b) Notwithstanding anything herein contained to the
contrary, it is specifically understood and agreed that there shall be no
personal liability on the part of the Landlord, its successors or assigns, with
respect to any of the terms, provisi ons, covenants and conditions of this
lease, and that Tenant shall look solely to the estate, property and equity of
Landlord or such successor in interest in the Building and subject to the prior
rights of any mortgagee or ground lessee, for the satisfaction of each and every
remedy of Tenant in the event of any breach by Landlord or by such successor in
interest of any of the terms, provisions, covenants and conditions of this lease
to be performed by Landlord, which exculpation of personal liability shall be
absolute and without exception.
NOTICES.
35. All notices, demands or requests required under the terms
of this lease shall be given in writing by either party to the other and shall
be complete by personal delivery or by mailing such notices by certified or
registered mail, return receipt requested, to the Landlord at the address set
forth hereinabove, and to the Tenant at the Premises, or to such other address
as either party may designate in writing, which notice of change of address
shall be given in the same manner.
COVENANTS, EFFECT OF WAIVER.
36. (a) Every term, condition, agreement or provision
set forth in this lease shall be deemed to also constitute a
covenant.
(b) The waiver of any term, provisions, covenant or
condition by Landlord shall not be construed as a waiver of a subsequent breach
of the same or any other term, provision, covenant or condition, and the consent
or approval by Landlord to or of any act by Tenant requiring Landlord's consent
or approval shall not be construed to waiver or render unnecessary Landlord's
consent or approval to or of any subsequent similar act by Tenant. The failure
of Landlord to insist in any one or more instances upon the strict performance
of any term, condition, provision, covenant or agreement or to exercise any
option or any right hereunder, shall not be construed as a waiver or
relinquishment of the same for the future. The receipt by Landlord of any Rental
payment or the acceptance by Landlord of the performance of anything required to
be performed by this lease, with knowledge of a breach of any term, condition,
provision or covenant of this lease shall not be deemed a waiver of such breach.
No term, condition, provision or covenant of this lease shall be deemed to have
been waived unless such waiver is in writing and signed by Landlord. No payment
by Tenant or receipt and/or acceptance by Landlord of a lesser sum than the
agreed upon Rental shall operate or be deemed or construed to be other than on
account of the earliest Rental then unpaid, nor shall any endorsement or
statement on any check or any letter or writing accompanying any check nor the
acceptance of any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to its right to
recover the balance of any Rental or to pursue any other remedy to which it may
be entitled.
HOLDING OVER.
37. Any holding over or continued occupancy by Tenant after
the expiration of the Term of this lease shall not operate to extend or renew
this lease or to imply or create a new lease. In such event, Landlord shall have
the right to immediately terminate the Tenant's occupancy, or to treat the
Tenant's occupancy as a month-to-month tenancy, in which event Tenant shall
continue to pay one and one half the Base Rental charges and shall perform all
obligations as shall be in effect immediately prior to the termination of the
Term hereof. In no event however, shall Tenant be relieved of any liability to
Landlord for damages resulting from such holding over.
REFERENCE.
38. Wherever herein the singular number is used, the same
shall include the plural, and the masculine gender shall include the feminine
and neuter genders, if applicable. The paragraph headings and captions used
herein are for reference and convenience only. the words "reenter" and "reentry"
as used herein are not restricted to their technical legal meaning.
ENTIRE AGREEMENT.
39. This lease contains the entire agreement between the
parties. No oral statement or prior written matter shall have any force or
effect nor shall the waiver of any provision of this agreement be effective
unless in writing, signed by the waiving party. Tenant agrees that it is not
relying on any representations or agreements other than those contained in this
lease. This agreement shall not be modified except by a writing executed by both
parties, nor may this lease be canceled by Tenant except with the written
consent of Landlord, unless otherwise specifically provided herein. The
covenants, provisions, terms, conditions and agreements contained in this lease
shall bind the Landlord and Tenant and their respective successors and assigns
and shall inure to the benefit of the Landlord, the Tenant, their respective
successors, the assigns of Landlord and the assigns of Tenant who shall have
obtained an assignment of lease in accordance with the provisions of this lease.
ATTORNMENT.
40. At the option of the Landlord, a purchaser of the
Building, or the holder of any mortgage or ground lease affecting the Premises,
Tenant agrees that neither the cancellation nor the termination of any ground or
underlying lease to which this lease is now or may become subject or
subordinate, nor the sale of the Building, nor the foreclosure of any mortgage
affecting the Premises, nor the institution of any suit, action, summary or
other proceeding by Landlord or any mortgagee shall, by operation of law or
otherwise, result in the cancellation or termination of this lease or the
obligations of Tenant hereunder, and Tenant covenants and agrees in such event
to attorn to Landlord or to the holder of such mortgage or ground or underlying
lease or to the purchaser of the Building, whether by foreclosure or otherwise.
REAL ESTATE BROKER.
41. Landlord and Tenant each represent to the other that it
has dealt with no real estate broker in connection with this lease unless so
stated in the Preamble. Tenant agrees that if any claims should be made for
commissions by any other broker by reason of any acts of Tenant or its
representatives, Tenant will indemnify and save harmless the Landlord from any
and all claims, demands, losses, liabilities, judgments, costs, expenses,
attorneys' fees or other damages resulting from, arising out of, or in
connection therewith. Landlord agrees to pay all brokerage commissions due in
connection with this lease including to the brokers set forth in Paragraph (13)
of the Preamble, if any, to the broker named in the Preamble in accordance with
the terms and conditions of a separate agreement entered into or to be entered
into between the Landlord and said broker.
VALIDITY OF LEASE.
42. The terms, conditions, covenants and provisions of this
lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, the same shall be
deemed to be severable and shall not affect the validity of any other clause or
provision herein, but such other clauses or provisions shall remain in full
force and effect, unless such provisions shall relate to any payment of Rental
hereunder. In such event, Landlord, on not less than thirty (30) days written
notice to Tenant, shall have the right to terminate this lease on the date
specified in such notice, whereupon all Rental charges shall be apportioned as
of the date of termination and with the same force and effect as if the lease
terminated on the maturity date set forth herein.
COMMON AREAS.
43. Notwithstanding anything herein contained to the contrary,
all common areas and facilities which Tenant is allowed or permitted to use, are
to be used by virtue of a revocable license and if such license shall be revoked
or if the common areas shall be diminished or the locations changed, none of
such events shall subject Landlord to any liability nor permit any adjustment or
abatement of any Rental payments nor be deemed to constitute an actual or
constructive eviction.
REPRESENTATIONS.
44. Tenant represents that it is a corporation in good
standing of the State of Delaware, that there are no judgments, and that it does
not owe any taxes, that Michael W. Levin and Frances Bianco are its President
and Secretary respectively, and that they are empowered and authorized to enter
into this lease for and on behalf of the corporation. Tenant agrees to deliver
to Landlord simultaneously with the execution hereof, a certified copy of a
resolution of its Board of Directors authorizing the execution of this lease.
ENVIRONMENTAL COMPLIANCE.
45. (a) Tenant shall at Tenant's sole expense, comply with the
New Jersey Industrial Site Recovery Act and the regulations promulgated
thereunder (referred to as "ISRA") as same relate to Tenant's occupancy of the
Demised Premises, as well as any other environmental law, rule, or regulation
affecting or affected by Tenant's use and occupancy of the Demised Premises.
Tenant shall, at Tenant's own expense, make all submissions to, provide all
information to, and comply with all requirements of, the Bureau of Industrial
Site Evaluation (the "Bureau") of the New Jersey Department of Environmental
Protection ("NJDEP") which arise due to Tenant's acts or omissions. Should the
Bureau or any other division of NJDEP, pursuant to any other environmental law,
rule, or regulation, determine that a cleanup plan be prepared and that a
cleanup be undertaken because of any spills or discharge of hazardous substances
or wastes at the Demised Premises which occur during the term of this Lease and
were caused by Tenant or its servants, agents, employees or contractors, then
Tenant shall at Tenant's own expenses prepare and submit the required plans and
financial assurances, and carry out the approved plans. In the event that
Landlord shall have to comply with ISRA by reason of Landlord's actions, Tenant
shall promptly provide all information requested by Landlord for preparation of
non-applicability affidavits or a Negative Declaration and shall promptly sign
such affidavits when requested by Landlord. Tenant shall indemnify, defend, and
save harmless Landlord from all fines, suits, procedures, claims, and actions of
any kind arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes at the Demised Premises which occur during the
term of this Lease and were caused by Tenant or its servants, agents, employees,
or contractors, and from all fines, suits, procedures, claims, and actions of
any kind arising out of Tenant's failure to provide all information, make all
submissions and take all actions required by the Bureau or any other division of
NJDEP which arise due to Tenant's acts or omissions. Tenant's obligations and
liabilities under this paragraph shall continue so long as Landlord remains
responsible for or must remedy any spills or discharges of hazardous substances
or wastes at the Demised Premises which were caused by Tenant or it servants,
agents, employees or contractors. Tenant's failure to abide by the terms of this
paragraph shall be restrainable by injunction. Tenant shall have no
responsibility to obtain a "Negative Declaration" or "Letter of
Non-Applicability" from the NJDEP if the sole reason for obtaining same is in
connection with a sale or other disposition of the real estate by Landlord but
Tenant agrees to cooperate with Landlord in Landlord's effort to obtain same and
shall perform at Tenant's sole expense any cleanup required by reason of
Tenant's use and occupancy of the Demised Premises.
(b) Notwithstanding anything herein contained which
may be to the contrary, it is expressly understood and agreed that Tenant shall
have no responsibility or liability for the remediation of any violation of
environmental laws which existed at the Land or Building prior to the
Commencement Date, unless the condition giving rise to such violation was
actually caused by Tenant, its agents, contractors, employees or servants.
(c) Landlord represents to Tenant that (i) it has
no knowledge of the existence of any unlawful hazardous substances or materials
located at the Demised Premises or upon or under the Land, or the existence of
any conditions thereat which would give rise to a violation of any applicable
environmental law or regulation and (ii) it has not been served with any
notices, summonses, orders or directives with respect to the Premises or Land,
nor are any such proceedings pending or, to the knowledge of Landlord,
threatened.
(d) Landlord shall hold Tenant harmless from all
fines, suits, procedures, claims, and actions of any kind arising out of or in
any way connected with any spills or discharges of hazardous substances or
wastes at the Demised Premises which occur or occurred during or prior to the
term of this Lease and were caused by Landlord or its servants, agents,
employees or contractors, and from all fines, suits, procedures, claims, and
actions of any kind arising out of Landlord's failure to provide all
information, make all submissions and take all actions required by the Bureau or
any other division of NJDEP which arise due to Landlord's acts or omissions.
Landlord's obligations and liabilities under this paragraph shall continue so
long as Tenant remains responsible for or must remedy any spills or discharges
of hazardous substances or wastes at the Demised Premises which were caused by
Landlord or it servants, agents, employees or contractors.
(e) The Tenant hereby covenants and agrees to
indemnify and hold the Landlord harmless from any and all losses of whatever
nature including lost rentals, claims, costs, and reasonable attorneys fees that
Landlord may sustain as a result of the Tenant's failure to comply in a timely
fashion with the provisions of this paragraph.
(f) The provisions of this paragraph shall
survive expiration or earlier termination of this Lease, regardless of the
reason for such termination, it being agreed and acknowledged that Landlord
would not have entered into this Lease but for the provisions of this
Paragraph 45 and the survival thereof.
OPTION TO RENEW.
46. The Tenant shall have an option to renew this Lease for
two five (5) year terms, by giving the Landlord written notice of its intent to
exercise its option to renew this Lease for such five (5) year term no later
than twelve (12) months prior to the expiration of the original term or the
first renewal term, as the case may be. However, this option shall be available
to Tenant if and only if the Tenant is not in breach of any condition or term of
this Lease after notice and expiration of the applicable period to cure such
breach. The terms and conditions of the Lease shall remain the same except for
the payment of Base Rent which shall increase according to the following formula
for the renewal period:
(a) Upon receipt of the notice of the exercise of the option,
Landlord and Tenant shall commence negotiations to determine the fair market
value of the Leased Premises for the renewal term of the lease (the "FMV"). If
the parties have not agreed upon the FMV as so defined within sixty (60) days,
Landlord and Tenant shall each appoint a real estate appraiser within thirty
(30) days of the end of the sixty (60)day period to determine the FMV. Each
appraiser shall be a designated MAI appraiser. If either party fails to timely
appoint its appraiser, the appraisal of the more timely appointed appraiser
shall determine the FMV.
(b) As soon as practical after appointment, but within thirty
(30) days, each appraiser shall submit an appraisal of the FMV to Landlord and
Tenant. Each shall deliver a copy of the appraisal to the other within three (3)
days of receipt, with a copy to the other appraiser. If the appraisals submitted
are within ten (10%) percent of each other, the average of the two appraisals
shall be the FMV. If the appraisals submitted are not within ten (10%) percent
of each other, within ten (10) days after the submission of the original
appraisals, both appraisers shall jointly select a third appraiser qualified as
stated above, whose appraisal shall be restricted to a determination of the FMV
in an amount neither greater than the higher of the two other appraisals, nor
less than the lower of the two other appraisals. If the two appraisers do not
timely select the third appraiser, Tenant and/or Landlord may seek an order of
the court of competent jurisdiction for the appointment of a third appraiser.
The third appraiser's appraisal shall be averaged with the results of the other
two appraisals, and such average shall be the FMV. The FMV so determined shall
be converted to an Annual Base Rent. For each year of the first five (5) year
option period, the rent to be paid will be one hundred percent (100%) of the FMV
but in no event will the Annual Base Rent be less than the Annual Base Rent paid
for each year of the preceding year. For the second five (5) year option period
the Annual Base Rent shall be one hundred percent (100%) of the FMV but not less
than the Annual Base Rent for the last year of the first renewal term. The new
Annual Base Rent shall be paid in twelve (12) installments on the first day of
each month commencing on the first day of the first month of the renewal term.
If the foregoing appraisal procedure shall not result in a determination of the
FMV within 90 days after the end of the first 30-day period referred to above,
either party may seek a determination by a court of competent jurisdiction as to
the FMV.
NON-BINDING NATURE OF SUBMITTAL.
47. It is understood by the Tenant that the submission of this
Lease to the Tenant for execution in no way binds the Landlord to any of the
terms or contents therein unless or until this Lease has been executed by a duly
authorized Partner of the Landlord.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals or caused these presents to be signed and sealed by their proper
corporate officers the day and year first above written.
ATTEST: DATE: ALLENDALE ASSOCIATES,
A New Jersey Partnership
_____________________ ___________ By:____________________________
Anthony M. Laino
A General Partner
ATTEST: DATE: CADAPULT GRAPHIC SYSTEMS
_____________________ ____________ By:__________________________
