Exhibit 10.9
------------
LEASE AGREEMENT
Between
▇▇ ▇▇▇▇ ▇▇▇▇▇ LLC
and
Windsortech, Inc.
TABLE OF CONTENTS
ARTICLE 1 - Definitions....................................................1-3
ARTICLE 2 - Demised Premises, Term, And Delivery of Demised Premises.........4
ARTICLE 3 - Rent...........................................................4-5
ARTICLE 4 - Use of Demised Premises........................................5-6
ARTICLE 5 - Preparation of Demised Premises................................6-7
ARTICLE 6 - Utilities And Services...........................................7
ARTICLE 7 - Compliance With Laws...........................................7-9
ARTICLE 8 - Events of Default; Remedies...................................9-12
ARTICLE 9 - Cumulative, Remedies; Waiver.................................12-13
ARTICLE 10 - Surrender of Demised Premises..................................13
ARTICLE 11- Subordination And Non-Disturbance............................14-15
ARTICLE 12 - Quiet Enjoyment................................................15
ARTICLE 13 - Assignment or Subletting.......................................15
ARTICLE 14 - Insurance; Waiver of Subrogation; Release...................15-19
ARTICLE 15 - Alterations.................................................19-21
ARTICLE 16 - Maintenance And Repairs; Covenant Against Waste;
Right of Inspection.........................................21-23
ARTICLE 17 - Electric Energy.............................................23-24
ARTICLE 18 - Water Service .................................................24
ARTICLE 19 - Access ........................................................25
ARTICLE 20 - Construction Liens.............................................25
ARTICLE 21 - Indemnification................................................26
ARTICLE 22 - Condemnation................................................26-28
ARTICLE 23 - Limitation of Liability.....................................28-29
ARTICLE 24 - Damage or Destruction.......................................29-30
ARTICLE 25 - Self-Help...................................................30-31
ARTICLE 26 - Broker.........................................................31
ARTICLE 27 - Notices.....................................................31-32
ARTICLE 28 - Estoppel Certificate...........................................32
ARTICLE 29 - Security Deposit............................................32-33
ARTICLE 30 - Option to Extend Term.......................................33-34
ARTICLE 31 - Signs.......................................................34-35
ARTICLE 32 - Modifications Requested by Mortgagee........................35-36
ARTICLE 33 - Parking........................................................36
ARTICLE 34 - Short Form Lease...............................................36
ARTICLE 35 - Captions.......................................................36
ARTICLE 36 - Applicability to successors and assigns........................36
ARTICLE 37 - Holdover.......................................................37
ARTICLE 38 - Miscellaneous...............................................37-39
EXHIBITS (*)
EXHIBIT A LEGAL DESCRIPTION OF LAND
EXHIBIT B LANDLORD'S WORK
EXHIBIT C OPERATING EXPENSES
EXHIBIT D COMMENCEMENT DATE AGREEMENT
* - Exhibits are not attached but will be provided to the Commission upon
request.
LEASE AGREEMENT
This LEASE AGREEMENT ("Lease"), is dated as of October 1, 2001 between
▇▇ ▇▇▇▇ ▇▇▇▇▇ LLC, a New Jersey limited liability company having an address c/o
Simon Developments LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, #▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
("Landlord"), and Windsortech, Inc., a New Jersey corporation, having an address
at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("Tenant").
WHEREAS, Landlord desires to lease to Tenant and Tenant desires to
lease from Landlord, certain premises located in East Windsor Township, New
Jersey as more particularly described therein; and
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions set forth in this Lease, the parties hereto hereby agree as follows:
ARTICLE 1 - DEFINITIONS
1.01 As used in this Lease (including all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
1. Additional Rent: All amounts, if any, that are expressly payable
by Tenant to Landlord under this Lease other than the Fixed Rent.
2. Building: The building located on the Land, and commonly known
as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇.
3. Commencement Date: The date this Lease Agreement is executed and
delivered by Landlord and Tenant and a certificate of occupancy (which may be a
temporary certificate) for the Building is delivered to Tenant.
4. Demised Premises: The Building consisting of 35,964 rentable
square feet ("RSF") together with the property known as ▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ and known as ▇▇▇ ▇▇▇, ▇▇▇▇▇ 20.06.
5. Expiration Date: Five (5) years after the Commencement Date.
6. Fixed Rent: Tenant shall pay during the Term Fixed Rent:
Lease Year Monthly Fixed
Annual Fixed Rent Rent
1
$152,847.00 $12,737.25
(@$4.25/RSF)
2 $158,241.60
(@$4.40/RSF) $13,186.80
3 $161,838.00
(@$4.50/RSF) $13,486.50
4 $165,434.00
(@$4.60/RSF) $13,786.20
5 $170,828.00
(@$4.75/RSF) $14,235.75
------------------------------------ ------------------
7. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
8. Land: The land specific to and upon which the Building is
located, which is described on Exhibit A, in East Windsor Township, New Jersey.
9. Landlord: ▇▇ ▇▇▇▇ ▇▇▇▇▇ LLC; however, the term "Landlord" shall
only refer to the holder or holders of the fee title to the Demised Premises, so
that upon any transfer of title to the Demised Premises, the term shall refer
only to the party holding title, and no prior holder of title shall have any
further liability or obligation with respect to the performance of any
obligation on the part of the Landlord to be performed under this Lease after
such transfer.
10. Landlord's Work: The materials and work to be furnished,
installed and performed by Landlord at its expense as more particularly shown on
Exhibit B.
11. Legal Requirements: Applicable laws and ordinances of all
federal, state, city, town, county, borough and village governments, and rules,
regulations, orders and directives of all departments, subdivisions, bureaus,
agencies or offices thereof, and of any other governmental, public or
quasi-public authorities having jurisdiction over the Land and Building, whether
now or hereafter in force, including, but not limited to, those pertaining to
environmental matters.
12. Lease Year: A consecutive twelve (12) month period with the
first Lease Year commencing on the Commencement Date.
13. Mortgagee: A holder of a mortgage or a fiduciary under or the
beneficiaries of a deed of trust.
14. Operating Expenses: As are defined in Exhibit C.
15. Permitted Uses: General Office/warehouse, equipment showroom;
and sale, repair, assembly and disassembly of computers and other office
equipment in conjunction therewith; provided, however, in no event shall Tenant
utilize the Demised Premises for a purpose which would render the Demised
Premises an "Industrial Establishment" as defined in the New Jersey Industrial
Site Recovery Act; and further provided that Landlord makes no representation or
warranty as to whether the zoning ordinances permit the use of the Demised
Premises for the Permitted Uses.
16. Person: A natural person or persons, a partnership, a
corporation, a limited liability company, or any other form of business or legal
association or entity.
17. Real Estate Taxes: As defined in Exhibit C.
18. Rent: The Fixed Rent and the Additional Rent.
19. Security Deposit: $38,211.75.
20. Successor Landlord: As defined in Section 11.03.
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21. Tenant: Windsortech, Inc.
22. Tenant's Property: Tenant's equipment and improvements
constructed as part of the Tenant Work or as changes to the Landlord Work
requested by Tenant.
23. Tenant Work: The facilities, materials and work which may be
undertaken for the account of Tenant (other than the Landlord's Work) to equip,
decorate and furnish the Demised Premises for Tenant's occupancy in accordance
with the provisions of Section 5.01 (a).
24. Term: The period commencing on the Commencement Date and ending
at 11:59 p.m. of the Expiration Date, but in any event the Term shall end on the
date when this Lease may be earlier terminated as provided elsewhere herein.
25. Unavoidable Delays: A delay (whether affecting Landlord,
Tenant, their respective contractors or subcontractors) arising from or as a
result of a strike, lockout, or labor difficulty, explosion, sabotage, accident,
riot or civil commotion, acts of God, act of war, fire or other catastrophe,
acts of any governmental body or agency (including delay in acting with respect
to any application for any necessary permits or approvals) Legal Requirement,
administrative proceedings or litigation which results in delay in commencing or
completing construction, delay in receipt of ordered equipment, acts beyond a
party's control and without its fault or negligence, or an act of the other
party and any cause beyond the reasonable control of that party, provided that
the party asserting such Unavoidable Delay has exercised its best efforts to
minimize such delay. Notwithstanding anything contained in this Lease to the
contrary, Unavoidable Delays shall not excuse or delay any of Tenant's or
Landlord's monetary obligations hereunder.
ARTICLE 2 - DEMISED PREMISES, TERM, AND DELIVERY OF DEMISED PREMISES
2.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. On the Commencement Date, the
parties hereto shall enter into an agreement setting forth the Commencement Date
and the Expiration Date, in the form attached hereto as Exhibit D.
2.02 The premises hereby leased to Tenant is the Demised Premises.
2.03 The Term of this Lease shall be five (5) years from the
Commencement Date and shall end on the Expiration Date, or such later date as
provided in Article 30, or such earlier date upon which said Term may expire or
be canceled or terminated pursuant to any of the conditions or covenants of this
Lease or pursuant to law.
2.04 Tenant's inability or failure to take possession of the Demised
Premises when delivered by Landlord shall not delay the Commencement Date, the
Completion Date, or Tenant's obligation to pay Rent, or comply with any of its
obligations hereunder.
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ARTICLE 3 - RENT
3.01 Beginning on the Commencement Date, Tenant shall pay the annual
Fixed Rent in equal monthly installments in advance on the first (1st) calendar
day of each and every calendar month. If the Commencement Date occurs on a day
other than the first day of a calendar month, the Fixed Rent for the partial
calendar month shall be prorated. Notwithstanding the foregoing, Tenant will not
be required to pay Fixed Rent for the first three (3) months of the Term, so
that the annual Fixed Rent for the first Lease Year will be $114,635.25.
3.02 The Fixed Rent shall be paid in lawful money of the United States
to Landlord at its office, or such other place, or to such place as Landlord may
designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as provided in Sections 22.03 and 24.03. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
made payable to Landlord and Landlord shall not be required to accept the check
of any other Person, and any check received by Landlord shall be deemed received
subject to collection. If any check is mailed by Tenant, Tenant shall post such
check in sufficient time prior to the date when payment is due so that such
check will be received by Landlord on or before the date when payment is due. No
lateness or failure of the mails will excuse Tenant from its obligation to have
made the payment in question when required under this Lease. All payments of
Rent shall first be applied to Fixed Rent then due and payable, next to
Additional Rent then due and payable.
3.03 Without implying that Tenant shall have the right to pay a lesser
amount than the correct Rent, no payment by Tenant or receipt or acceptance of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account.
3.04 Any payment due Landlord under this Lease which is not paid on or
before the tenth day following the date such payment is due shall, from the due
date, until such payment is received by Landlord, bear interest at the rate of
eight (8%) percent per annum.
3.05 Tenant shall pay to Landlord, as Additional Rent, the Operating
Expenses, in accordance with and as more particularly described in Exhibit C,
and the parties stipulate and agree that this Lease is intended, and shall be
deemed to be, a "net-net-net" Lease wherein the Landlord shall receive all Fixed
Rent payments hereunder to be made by Tenant free from any changes, assessments,
impositions, and expenses of any kind or nature whatsoever.
3.06 Tenant shall also be responsible to pay all charges for electrical
power service and all other utilities to the Demised Premises, all of which are
to be in the name of, and billed directly to, Tenant.
3.07 In addition to any other remedies provided for herein, in the
event that any installment of Fixed Rent or payment of additional rent is more
than ten (10) calendar days overdue then a "late charge" of 3% of the amount(s)
so overdue may be charged by Landlord for each month or part thereof that the
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same remains overdue. This charge will be deemed compensation to Landlord for
the inconvenience and expenses of policing and processing late payment(s) and
will be in addition to and not in lieu of any other remedy Landlord may have
under the circumstances and in addition to any reasonable fees and charges of
any agents or attorneys Landlord may employ in the event of any default
hereunder, whether authorized herein or by law. At the option of Landlord, any
such late charge, if not previously paid, will be added to and become part of
the next succeeding payment of Fixed Rent to be made hereunder.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01 (a) Tenant shall only use and occupy the Demised Premises for the
Permitted Uses, and Tenant shall not use or permit or suffer the use of the
Demised Premises or any part thereof for any other purposes.
(1) Landlord will deliver to Tenant copies of any environmental
reports affecting the Demised Premises that are in Landlord's possession
provided, however, Landlord makes no representation or warranty as to the
accuracy or completeness of such reports.
(2) Landlord will deliver to Tenant any ISRA letters of
non-applicability in Landlord's possession affecting the Demised Premises.
(3) Landlord will deliver a certificate of occupancy (which may be
temporary)
4.02 If any governmental license or permit, other than a Certificate of
Occupancy (which may be a temporary certificate) for the Building and Landlord's
Work prior to any Tenant Work, shall be required for the proper and lawful
conduct of Tenant's business in the Demised Premises or any part thereof, Tenant
shall duly procure and thereafter maintain such license or permit and submit the
same to Landlord upon request. Tenant shall at all times comply with the terms
and conditions of each such license or permit. Tenant shall not at any time use
or occupy, or suffer or permit anyone to use or occupy the Demised Premises, or
do or permit anything to be done in the Demised Premises, in any manner which
(a) violates the Certificate of Occupancy for the Demised Premises or for the
Building; (b) causes or is liable to cause injury to the Building or any
equipment, facilities or systems attached thereto; (c) constitutes a violation
of the Legal Requirements or Insurance Requirements; (d) impairs the character,
reputation or appearance of the Demised Premises and/or the Building; (e)
impairs the maintenance, operation and repair of the Demised Premises and/or its
equipment, facilities or systems or (f) would make the New Jersey Industrial
Site Recovery Act ("ISRA") applicable to the Demised Premises or the Building.
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01 (a) Within thirty (30) days after the Commencement Date, Landlord
will perform the work to the Demised Premises in accordance with Exhibit B and
in so performing such work, will use reasonable efforts not to unreasonably
interfere with Tenant's use of the Demised Premises.
(b) Any additional work over and above that set forth in Exhibit B,
necessary to suit the premises for Tenant's occupancy is the responsibility of
5
Tenant (the "Tenant Work"), which will be performed by Tenant at Tenant's own
cost and expense.
(3) In the event that Landlord does not complete the work described
in Exhibit B within thirty (30) days of the Commencement Date, and such delay is
not caused by the actions of Tenant, its employees, contractors, agents or
representatives then, at Tenant's option and upon written notice to Landlord,
(i) until such time as such work is completed, Tenant shall remain and continue
liable for the payment of the Fixed Rent, Operating Expenses, Additional Rent,
and all other charges required hereunder to be paid by Tenant but such rent,
charges and impositions shall be abated in such proportion as the square footage
of the Demised Premises which is untenantable bears to the total square footage
of the Demised Premises, and (ii) Tenant can cause such work to be performed and
the cost thereof shall be paid by Landlord to Tenant upon demand.
5.02 Except for the performance by Landlord of the work described in
Exhibit B, Tenant agrees to accept the Demised Premises in "As Is, Where Is"
condition; provided, however, the plumbing, heating and air-conditioning will be
in good working order as of the Commencement Date.
ARTICLE 6 - UTILITIES AND SERVICES
6.01 Landlord shall not be under any obligation to supply any services
or utilities to the Demised Premises and Tenant shall arrange for and contract
directly with the utility and other companies and suppliers for the furnishing
of any utilities, supplies and services that it desires, all at Tenant's sole
cost and expense. Tenant will comply with any applicable energy or water
conservation measures, voluntary or mandatory, which may be imposed by any
federal, state, county or municipal governmental agency, including, without
limitation, limits on permitted HVAC temperature settings, requirements limiting
volume of consumption or curtailment of Building Hours. The effect of such
compliance will not be deemed an eviction, actual or constructive, or a breach
of the provisions of this Lease which will be suspended, as necessary, for the
period(s) during which such conservation measures are in effect.
6.02 Tenant is responsible for bringing telephone service to the
Demised Premises and for any in-premises setup of telephone service. Tenant will
arrange for and pay for its telephone service directly to the telephone company.
ARTICLE 7 - COMPLIANCE WITH LAWS
7.01 Tenant will, at its expense, promptly observe and comply or cause
compliance with all laws and ordinances, orders, rules, regulations and
requirements of all federal, state, county or municipal governments, and
appropriate departments, agencies, commissions, boards and offices thereof,
including but not limited to those governing indoor air quality or pollution
standards and the Americans with Disabilities Act ("ADA"), and of the Board of
Fire Underwriters and/or of any other body exercising similar functions, and of
all insurance companies writing policies covering the Building and/or Demised
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Premises, or any part thereof, foreseen or unforeseen, ordinary as well as
extraordinary, which relate or pertain to the Demised Premises, including the
conduct of Tenant's business therein, and whether or not the same (a) involve
any change of governmental policy, (b) are now in force or are hereafter passed,
enacted or directed, or (c) require extraordinary repairs, alterations,
equipment or additions or any work (or changes to such work or any other
requirements incidental thereto) of any kind which may be applicable to, or in
and about, the Demised Premises, including, without limitation, the fixtures and
equipment thereof, or the purposes to which the Demised Premises are put, or
manner of use of the Demised Premises at the commencement or during the Term of
this Lease. Tenant will provide copies to Landlord of any notices with regard to
violations of the ADA.
7.02 Tenant's obligations as set forth in Article 7 will include, but
not be limited to, compliance with any and all laws, orders, rules, regulations
and requirements relating to life safety and environmental control, conservation
or protection, including, without limitation, the Occupational Safety and Health
Act ("OSHA"), the Spill Compensation and Control Act and the Industrial Site
Recovery Act ("ISRA"), with respect to the use of and operations at the Demised
Premises. Without limitation of the foregoing, if during the Term the operations
of Tenant now or hereafter become subject to the requirements of ISRA, then upon
any event which, if applicable to Tenant, would "trigger" the applicability of
ISRA, Tenant will, at its own expense, take or cause such occupant to take such
action as is required by ISRA. Notwithstanding the foregoing, in the event
Landlord takes any action which would trigger the applicability of ISRA, Tenant
agrees to cooperate with Landlord in obtaining ISRA approval, including without
limitation, (i) promptly executing and delivering any affidavits, applications
or other filings required by the New Jersey Department of Environmental
Protection ("NJDEP"), (ii) allowing inspections and testing of the Demised
Premises and (iii) performing any requirement reasonably requested by Landlord
and necessary for the receipt of the ISRA approval.
7.03 In the event that Tenant is not obligated to comply with Section
7.02 for any reason including, without limitation, the inapplicability of ISRA
to Tenant or any other occupant of the Demised Premises, then prior to any
assignment or subletting of any portion of the Demised Premises and prior to the
expiration or sooner termination of this Lease or any sublease, Tenant, at its
sole expense, will obtain from the NJDEP and deliver to Landlord a "letter of
non-applicability". Tenant will also provide Landlord with a duplicate original
of the affidavit and any and all other information submitted to the NJDEP in
connection with the request of such letter. Any representation or certification
made by Tenant or such occupant in connection with any request for a letter of
non-applicability shall constitute a representation and warranty by Tenant in
favor of Landlord.
7.04 In the event of Tenant's failure to comply fully with this Article
7 Landlord may, but will not be required to, perform any or all of Tenant's
obligations as aforesaid.
7.05 Tenant will defend, indemnify and hold harmless Landlord, its
agents, successors and assigns from and against, and be responsible for payment
of, any and all costs, expenses, claims, fines, penalties and damages that may,
7
in any manner, arise out of or be imposed because of the failure of Tenant to
comply with the provisions of this Article 7, including, but not limited to, the
expenses incurred by Landlord in the exercise of its rights pursuant to Section
7.04, and any damages incurred by Landlord as a result of its inability to
relet, or a delay in reletting, the Demised Premises, all of the foregoing shall
be deemed Additional Rent.
7.06 Landlord has not received any written notice that the Demised
Premises are, and to the best of Landlord's knowledge the Demised Premises are
not, in violation of any material Legal Requirement.
ARTICLE 8 - EVENTS OF DEFAULT; REMEDIES
8.01 It will be a default hereunder if, at any time after the date
hereof, any one of the following events (herein called an "Event of Default")
occurs:
(a) if Tenant fails to pay any installment of the Fixed Rent or
Operating Expenses, or any part thereof, when same is due and payable and such
failure continues for five (5) days after the same is due and payable; or
(b) if Tenant fails to pay any other item of Additional Rent or any
other charges required to be paid by Tenant hereunder and such failure continues
for ten (10) days after notice thereof from Landlord to Tenant; or
(c) if Tenant fails to perform any of the requirements of this
Lease (other than the payment of money) on the part of Tenant to be performed or
observed and such failure continues for thirty (30) days after notice thereof
from Landlord to Tenant; or
(d) if Tenant allows the Demised Premises to become vacant,
deserted or abandoned for a period of twenty (20) days (the fact that any of
Tenant's property remains in the Demised Premises shall not be evidence that
Tenant has not vacated or abandoned the Demised Premises) or if Tenant fails to
keep the Demised Premises occupied to the extent necessary to maintain fire
insurance coverage; or
(e) if Tenant assigns, mortgages or encumbers this Lease, or
sublets the Demised Premises, or any part thereof, other than as expressly
permitted hereunder; or
(f) if Tenant makes an assignment for the benefit of its creditors;
or
(g) if any petition is filed by or against Tenant in any court,
whether or not pursuant to any statute of the United States or of any State, in
any bankruptcy, reorganization, extension, arrangement or insolvency
proceedings, and with regard to a petition filed against Tenant the same is not
dismissed within forty-five (45) days, provided that during such period Tenant
continues to pay all Base Rent and all Additional Rent and performs all of its
obligations under this Lease; or
(h) if, a receiver or trustee is appointed for all or any
substantial portion of Tenant's property, and with regard to a proceeding
brought against Tenant the same is not dismissed in forty-five (45) days,
provided that during such period Tenant continues to pay all Base Rent and all
Additional Rent and performs all of its obligations under this Lease; or
(i) if a petition or a proceeding is filed or commenced by or
against Tenant for its dissolution or liquidation (other than in connection with
any merger permitted hereunder), or if Tenant's property is taken by any
8
governmental authority in connection with a dissolution or liquidation, and with
regard to a petition filed or commenced against Tenant the same is not dismissed
within forty-five (45) days, provided that during such period Tenant continues
to pay all Base Rent and all additional rent and performs all of its obligations
under this Lease; or
(j) if a levy under judgment against Tenant is not satisfied or
bonded within thirty (30) days.
8.02 Upon the occurrence of any one or more of the aforementioned
events of default, and the expiration of the period of time for curing the same,
if any, Landlord may give to Tenant a notice (hereinafter called "Notice of
Termination") of its intention to end the Term of this Lease at the expiration
of five (5) days from the date of service of such Notice of Termination. At the
expiration of such five (5) days the Term hereof, as well as all of the right,
title and interest of Tenant hereunder, will wholly cease and expire in the same
manner and with the same force and effect as if the date of expiration of such
five (5) day period were the date originally specified herein for the expiration
of the Term, and Tenant will then quit and surrender the Demised Premises to
Landlord, but Tenant will remain liable to Landlord as hereinafter provided.
Notwithstanding the foregoing provisions of this Section 8.02, Landlord will not
be required to give any notice of default, and no cure period shall be
applicable to the failure of Tenant to observe or perform any of its agreements
or obligations hereunder, if within any one hundred eighty (180) day period
Tenant has committed two or more defaults hereunder and Landlord has transmitted
to Tenant two or more default notices.
8.03 If this Lease is terminated as provided above, Landlord, or
Landlord's agents or servants, may at any time thereafter re-enter the Demised
Premises, remove Tenant, its agents, employees, servants, licensees, permittees
and any subtenants or assignees, and all or any of its or their property, either
by summary dispossess proceedings or by any suitable action or proceeding at
law, without being liable to indictment damages of any nature, and recover and
enjoy the Demised Premises together with all additions, alterations and
improvements thereto.
8.04 In case of any such termination by summary proceedings or
otherwise, Tenant agrees that:
(a) The Fixed Rent and all Additional Rent required to be paid by
Tenant hereunder will thereupon become due and be paid up to the time of such
termination or dispossess. Tenant will also pay to Landlord, as additional rent,
all of Landlord's reasonable expenses for attorneys' fees, brokerage
commissions, all costs paid or incurred by Landlord for retaking and
repossessing the Demised Premises (including the removal of persons and property
therefrom), restoring the Demised Premises to good order and condition, altering
and otherwise preparing the same for reletting, the unamortized portion of any
rental concessions, Tenant fit-out or abatement (treated as if amortized over
the initial Term hereof) and for all other reasonable costs and expenses
incurred in securing a new tenant or tenants (all of the foregoing collectively
referred to as the "Early Termination Damages").
(b) Landlord may, at any time and from time to time, relet the
Demised Premises, in whole or in part, in its own name, for a term or terms
which, at Landlord's option, may be for the remainder of the then current Term
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of this Lease, or for any longer or shorter period. Landlord undertakes to use
reasonable efforts to relet the Demised Premises so as to mitigate damages but
will not be required to prefer such reletting to any letting of other vacant
space in the Building.
(c) Tenant will be obligated and agrees to pay to Landlord, upon
demand, and Landlord will be entitled to recover from Tenant, the Early
Termination Damages plus damages in an amount equal to the excess, if any, of
(i) all Fixed Rent and all additional rent as would have been required to be
paid by Tenant under this Lease for each calendar month had this Lease and the
Term not been so terminated, over (ii) the rents, if any, collected by Landlord
in respect of such calendar month pursuant to any reletting. In no event will
Tenant be entitled to receive any excess of such rents over the sums payable by
Tenant to Landlord hereunder. Said damages will be payable by Tenant to Landlord
in monthly installments in the same manner as Fixed Rent hereunder, and no suit
or action brought to collect the amount of the deficiency for any month will in
any way prejudice Landlord's right to collect the deficiency for any subsequent
month by a similar proceeding.
Alternatively, Landlord may, at Landlord's sole option, without
notice and without prejudice to any other rights or remedies of Landlord
hereunder or at law or in equity, recover from Tenant, in addition to the Early
Termination Damages, as liquidated damages for such default, expiration and/or
dispossess, (i) an amount equal to the difference between the Fixed Rent and all
additional rent reserved in this Lease from the date of such default to the
Expiration Date and (ii) the then fair market rental value of the Demised
Premises for the same period, discounted to present value at a rate not more
than four (4%) percent per annum. Said damages will become due and payable to
Landlord immediately upon such breach of this Lease and without regard to
whether this Lease be terminated or not, and if this Lease be terminated,
without regard to the manner in which it is terminated.
(d) Suit or suits for the recovery of any and all such damages, or
for any installments thereof, may be brought by Landlord from time to time at
its election, and nothing herein contained will be deemed to require Landlord to
postpone suit until the date the Term would have expired had the Lease not been
terminated as provided herein or under any provision of law or had Landlord not
re-entered into or upon the Demised Premises.
8.05 In connection with any reletting, Landlord, at its option, may
make such alterations, repairs and/or decorations in the Demised Premises as in
its reasonable judgment Landlord considers advisable and necessary, and the
making of such alterations, repairs and/or decorations will not operate or be
construed to release Tenant from liability hereunder.
8.06 Tenant, for itself and all claiming through or under Tenant,
including, but not limited to its creditors, upon the termination of this Lease
in accordance with the terms hereof or in the event of re-entry or recovery of
possession of the Demised Premises by process of law or otherwise, hereby waives
to the fullest extent permitted by law any right of redemption provided or
permitted by any statute, law or decision now or hereafter in force, and hereby
waives, surrenders and gives up all rights or privileges which it or they may or
might have under and by reason of any present or future law or decision to
10
redeem the Demised Premises or for a continuation of this Lease after having
been dispossessed or ejected therefrom by process of law.
ARTICLE 9 - CUMULATIVE, REMEDIES; WAIVER
9.01 Every term, condition, agreement or provision contained in this
Lease will also be deemed to be a covenant.
9.02 In addition to the other remedies provided in this Lease, Landlord
or Tenant, as the case may be, will be entitled to the restraint by injunction
of any violation or attempted or threatened violation of any of the terms or
covenants of this Lease. Landlord's or Tenant's remedies, as the case may be,
under the terms of this Lease are cumulative and are not intended to be
exclusive of any other remedies to which such party may be lawfully entitled, at
law or in equity, in case of any breach by the other party of any provision of
this Lease.
9.03 The failure of Landlord to insist in any one or more cases upon
the strict performance of any of the terms or covenants of this Lease, or to
exercise any option herein contained, will not be construed as a waiver or a
relinquishment for the future of any such term or covenant. No waiver by
Landlord of any term or covenant of this Lease will be deemed to have been made
unless made in writing signed by Landlord.
9.04 Neither the payment by Tenant nor acceptance by Landlord of rent
or any other payment, nor the acceptance by Landlord of performance of anything
required by this Lease to be performed, with the knowledge of the breach of any
term or covenant of this Lease, will be deemed a waiver of such breach or of any
of Landlord's rights hereunder unless such waiver is agreed to in writing by
Landlord. Landlord's acceptance of rent or any other payment in a lesser amount
than is due (regardless of any endorsement on any check, or any statement in any
letter accompanying any such rent or payment) will not operate or be construed
either as an accord and satisfaction or in any manner other than as payment on
account of the earliest rent or other sums then unpaid.
9.05 Landlord and Tenant waive all right to trial by jury in any
proceeding instituted with respect to this Lease.
ARTICLE 10 - SURRENDER OF DEMISED PREMISES
10.01 Tenant will, upon the expiration or earlier termination of this
Lease, quit and surrender the Demised Premises to Landlord, together with all
Tenant's Property and other alterations (unless Landlord elects otherwise as
hereinafter provided) and replacements thereof then on the Demised Premises, in
good order, condition and repair, except for reasonable wear and tear. Prior to
the expiration or earlier termination of this Lease, the Tenant will remove all
of its property, equipment and trade fixtures from the Demised Premises without
damage, leaving the Demised Premises in broom-clean condition. All property not
11
removed by Tenant will be deemed abandoned by Tenant and Landlord reserves the
right to charge the cost of removal, storage and/or disposal of same to Tenant.
10.02 If the Demised Premises is not surrendered at the end of the Term
including a failure to surrender by virtue of failure to comply with ISRA as
referred to in Article 7 above, or if the Demised Premises is damaged or is not
in broom-clean condition upon surrender, Tenant will indemnify Landlord against
any loss or liability resulting therefrom.
10.03 Tenant's obligations under this Article 10 will survive the
expiration or earlier termination of this Lease and surrender of the Demised
Premises.
ARTICLE 11- SUBORDINATION AND NON-DISTURBANCE
11.01 This Lease is and will at all times be subject and subordinate to
(i) the lien of any mortgage(s) on or affecting the Building or any part
thereof, at the date hereof, and (ii) subject to the provisions of Section
11.02, any mortgage(s) hereafter made affecting the Building or any part
thereof, and all renewals, modifications, consolidations, replacements, or
extensions thereof, irrespective of the time of recording such mortgage(s). The
provisions of this subordination shall be automatic and no further instrument of
subordination will be necessary, but in confirmation of this subordination
Tenant will, at Landlord's request, execute and deliver such further instruments
as may be required by the holder(s) of said mortgage(s).
11.02 The subordination to any mortgage(s) hereafter made is expressly
conditioned upon Landlord using reasonable efforts to cause any such
mortgagee(s) to execute and deliver to Tenant an agreement, in form for
recording, pursuant to which such mortgagee(s) agrees that the leasehold estate
granted to Tenant hereunder and the rights of Tenant pursuant to this Lease to
quiet and peaceful possession of the Demised Premises will not be terminated,
modified, affected or disturbed by any action which such mortgagee may take to
foreclose its mortgage or to enforce its rights or remedies, nor will Tenant be
named a defendant in any foreclosure action, as long as no event of default has
occurred under this Lease (other than events of default theretofore cured or in
the process of being cured as permitted by the provisions of Article 8 hereof)
and as long as Tenant pays the Fixed Rent and all Additional Rent due and
performs its obligations hereunder within the applicable grace periods and
without offsets or defenses thereto, except as otherwise herein expressly set
forth.
11.03 If any mortgagee or any other person claiming by or through any
mortgagee, or by or through any foreclosure proceeding or sale in lieu of
foreclosure, succeeds to the rights of Landlord under this Lease, Tenant will,
at the request of such successor or at Landlord's request, attorn to and
recognize such successor as the landlord (the "Successor Landlord") of Tenant
under this Lease, and Tenant will promptly execute, acknowledge and deliver at
any time any instruments requested by such person to evidence such attornment
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and/or confirm Tenant's agreement to attorn. Upon such attornment, this Lease
will continue as a direct lease from such Successor Landlord to Tenant, upon and
subject to all of the provisions of this Lease for the remainder of the Term,
except that the Successor Landlord will not be:
(a) liable for any previous act or omission of Landlord under this
Lease or the return of any security deposit unless physically delivered to
Successor-Landlord;
(b) subject to any offset, defense or counterclaim not expressly
provided for in this Lease which has theretofore accrued to Tenant against
Landlord;
(c) bound by (i) any modification of this Lease after the date of
such mortgage, (ii) any prepayment of more than one (1) month's Fixed Rent or
Additional Rent, or (iii) any assignment, surrender, termination, cancellation,
waiver, release, amendment or modification of the Lease, unless same has been
expressly approved in writing by the holder of such mortgage through or by
reason of which the Successor Landlord shall have succeeded to the rights of
Landlord under this Lease;
(d) bound by any security deposit which Tenant may have paid to any
prior landlord, unless such deposit is in an escrow fund available to mortgagee,
or actually received by Mortgagee;
(e) bound by any provision in the Lease which obligates the
landlord to erect or complete any building or to perform any construction work
or to make any improvements to the Demised Premises or to expand or rehabilitate
any existing improvements or to restore any improvements following any casualty
or taking;
(f) bound by any notice of termination given by Landlord to Tenant
without Mortgagee's written consent thereto; or
(g) personally liable under the Lease and the Successor Landlord's
liability under the Lease shall be limited to its ownership interest in the
Demised Premises. Tenant will further agree with any Mortgagee that Tenant will
not voluntarily subordinate the Lease to any lien or encumbrance without such
Mortgagee's prior written consent.
ARTICLE 12 - QUIET ENJOYMENT
Landlord covenants that so long as this Lease is in effect and Tenant
pays the rents and performs the covenants and conditions contained in this
Lease, Tenant may peacefully hold and enjoy the Demised Premises during the Term
subject, however, to the terms of this Lease.
ARTICLE 13 - ASSIGNMENT OR SUBLETTING
13.01 Tenant will neither assign this Lease, sublet the Demised
Premises or any part thereof nor encumber its interest in this Lease unless it
first complies with this Article 13. Any assignment or subletting not made in
compliance with the provisions of this Article 13 shall be void.
13.02 Provided that (a) any Mortgagee, in its sole and unreviewable
discretion, consents to the assignment or subletting (including, without
limitation, the assignee or subtenant, as the case may be), (b) Tenant is not
13
then in breach or default of any of the terms or conditions of the Lease, and
(c) Landlord gives prior written consent to the proposed assignment or
subletting, which consent shall not be unreasonably withheld or delayed, Tenant
will be entitled to sublet the Demised Premises or a portion thereof, or to
assign this Lease, but only in accordance with and subject to the provisions of
this Article 13. Landlord will have the right to withhold its consent if, in
Landlord's reasonable judgment, the business of the proposed assignee or
subtenant would expose the Demised Premises and/or Building to increased risk of
danger or injury, including environmental contamination, or increased economic
or financial risks.
13.03 (a) If Tenant desires to assign this Lease or to sublet all or
part of the Demised Premises, it must, prior to entering into such assignment or
sublease, serve notice upon Landlord of its intention to make such assignment or
subletting ("Tenant's Notice") which notice will contain (i) the name, address
and financial information of the proposed assignee or subtenant, (ii) the full
and complete terms and conditions of the assignment or subletting and, in the
case of subletting, the exact space to be sublet, (iii) the amount of rental and
all other consideration to be paid by the subtenant or assignee, (iv) the nature
of the proposed assignee's or subtenant's business and its proposed use of the
Demised Premises, and (v) a copy of plans and, if available, specifications for
any required alterations to the Demised Premises. In the event that Landlord or
Mortgagee requires any additional or supplementary information, Landlord or
Mortgagee will advise Tenant, in writing, within twenty (20) days of Landlord's
receipt of Tenant's Notice and Tenant will supply same within a reasonable time.
Within thirty-one (31) days of Landlord's receipt of Tenant's
Notice or, within thirty-one (31) days of Landlord's receipt of any additional
or supplementary information requested by Landlord, Landlord will advise Tenant
as to whether it will (i) consent to such assignment or subletting, (ii) refuse
to consent to such assignment or subletting, or (iii) elect to terminate this
Lease and the unexpired term hereof (a "Recapture"). In the event Landlord
elects to Recapture, Tenant will vacate and surrender the Demised Premises on
the date specified by Landlord, but not later than the date set forth in the
Tenant Notice upon which the assignment or proposed assignment or sublease was
to become effective, which date will not be prior to forty (40) days after
receipt by Landlord of Tenant Notice, and upon such vacation and surrender, this
Lease will terminate.
(2) Notwithstanding the foregoing, Tenant's right to make an
assignment or sublease and the effectiveness of any assignment or sublease is
conditional upon (i) there being no uncured default under the Lease as of the
effective date of the assignment or sublease, (ii) Tenant's delivery to
Landlord, in recordable form and within three (3) days after their execution, of
a duplicate original of the assignment or sublease and, in the event of an
assignment, an agreement reasonably acceptable to Landlord wherein the assignee
assumes and agrees to keep, observe and perform all of the covenants, conditions
and obligations of Tenant under the Lease, and (iii) upon request by Landlord
and as Additional Rent, Tenant will pay Landlord a processing fee of Five
Hundred ($500.00) Dollars or such greater amount as is reasonable under the
circumstances for document review and/or preparation in connection with the
proposed transaction.
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13.04 If this Lease is assigned, or if the Demised Premises or any part
thereof is sublet or otherwise occupied by anyone other than Tenant, after
default by Tenant, Landlord may collect rent from the assignee, subtenant or
occupant and apply the net amount collected to the amounts due hereunder, but no
such assignment, subletting, occupancy or collection will be deemed a waiver of
this covenant, an acceptance of the assignee, subtenant or occupant as tenant or
a release of Tenant from the further performance of the terms, covenants and
conditions of this Lease.
13.05 Notwithstanding any assignment, sublease or other occupancy, with
or without Landlord's consent, Tenant will remain primarily liable on this Lease
unless expressly agreed to by Landlord to the contrary, in writing. Any
violation of any provision of this Lease, whether by act or omission, by any
assignee, subtenant or occupant, will be deemed a violation of such provision by
Tenant, it being the intention of the parties that Tenant will be liable to
Landlord for any and all acts and omissions of any and all assignees, subtenants
or other occupants of the Demised Premises.
13.06 For purposes of this Article 13, if Tenant is a corporation or
partnership, any dissolution, merger, consolidation or other reorganization of
such corporation or partnership, or the sale or other transfer or disposition of
a "controlling interest" in the corporate shares or partnership interests of
Tenant, as the case may be, (whether such sale, transfer or other disposition
occurs at one time or at intervals so that, in the aggregate, such sale,
transfer or other disposition of a "controlling interest" shall have occurred),
will be deemed to constitute an assignment of this Lease, unless such sale,
transfer or disposition shall be part of a public offering of the sale of
Tenant's shares of stock. For the purposes of this Article 13, the term
"controlling interest" means (a) as to a tenant which is a corporation the
ownership of shares possessing and having the right to exercise more than fifty
(50%) percent of the total combined voting power of all classes of shares
issued, outstanding and entitled to vote for the election of directors, (whether
direct ownership or indirect ownership through ownership of shares possessing
and having the right to exercise more than fifty (50%) percent of the total
combined voting power of all classes of shares of another corporation or
corporations), and (b) as to a tenant which is a partnership, more than fifty
(50%) percent of partnership interest of the general partners of such
partnership (whether direct ownership or indirect ownership through control of a
corporate general partner).
13.07 Notwithstanding the foregoing provisions of this Article 13,
provided that the Mortgagee consents, this Lease may be assigned, or the Demised
Premises may be sublet, in whole or in part, to any corporation into or with
which Tenant may be merged or consolidated, provided said corporation has a net
worth and net current assets no less than Tenant's net worth and net current
assets immediately prior to such assignment or subletting, or to any corporation
which shall be an affiliate, or subsidiary, or successor of Tenant.
15
For the purpose of this Article 13 a "subsidiary" or "affiliate" or
"successor" of Tenant shall mean the following:
(1) An "affiliate" shall mean any corporation that, directly or
indirectly, controls or is controlled by, or is under common control with
Tenant, with a net worth and net current assets no less than Tenant's net worth
and net assets immediately prior to such assignment or sublet. For this purpose
"control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of, the management and policies of such
corporation, whether through the ownership of voting securities or by contract,
or otherwise.
(2) A "subsidiary" shall mean any corporation not less than fifty
percent (50%) of whose outstanding stock shall, at the time, be owned directly
or indirectly by Tenant, with a net work and net current assets no less than
Tenant's net worth and net assets immediately prior to such assignment or
sublet.
(3) A "successor" of Tenant shall mean:
(1) A corporation in which, or with which, Tenant, its
corporate successors or assigns, is merged or consolidated in accordance with
applicable statutory provisions for merger or consolidation of corporations
provided that, by operation of law or effective provisions contained in the
instruments of merger or consolidation, the liabilities of the corporations
participating in such merger or consolidation are assumed by the corporation
surviving such merger or created by such consolidation with a net worth and net
current assets no less than Tenant's net worth and net assets immediately prior
to such assignment or sublet, or
(2) A corporation acquiring this Lease and the term hereby
demised and a substantial portion of the property and assets of Tenant, its
corporate successors or assigns with a net worth and net current assets no less
than Tenant's net worth and net assets immediately prior to such assignment or
sublet, or
(3) Any corporate successor to a successor corporation becoming
such by either of the methods described in (i) or (ii), provided that on the
completion of such merger, consolidation, acquisition, or assumption, the
successor shall have a net worth and net assets no less than Tenant's net worth
and net assets immediately prior to such merger, consolidation, acquisition or
assumption.
13.08 Without limiting any of the provision of this Article 13, if
pursuant to the Federal Bankruptcy Code or any similar law having the same
general purpose, (herein the "Code"), Tenant is permitted to assign its interest
in this Lease notwithstanding the restrictions set forth above, Landlord will be
entitled to assurance of future performance by an assignee expressly permitted
under such Code which will be deemed to mean, at a minimum, the deposit of cash
or cash equivalent security in an amount equal to the sum of one (1) year's
Fixed Rent plus an amount equal to the Additional Rent for the calendar year
preceding the year in which such assignment is intended to become effective.
16
Such security will be held by Landlord for the balance of the term, without
interest, as security for the full performance of all Tenant's obligations under
this Lease, and may be applied in the manner specified in Article 29 below.
ARTICLE 14 - INSURANCE; WAIVER OF SUBROGATION; RELEASE
14.01 During the term hereof, Tenant will, at its own cost and expense,
provide and keep in force the following insurance:
(a) Commercial general liability insurance, written on an
occurrence basis, naming Landlord and its agents and employees as additional
insureds, against claims for bodily injury, death or property damage occurring
in or about the Demised Premises, the Building and the Common Facilities
(including, without limitation, bodily injury, death or property damage
resulting directly or indirectly from or in connection with any alteration,
improvement or repair thereof made by or on behalf of Tenant), with limits on an
occurrence basis of not less than $1,000,000.00 for bodily injury or death and
$1,000,000.00 for property damage with an umbrella policy of $4,000,000.00
covering all aforesaid risks. Tenant's coverage must include (i)
premises/operations, (ii) independent contractors, and (iii) broad form
contractual liability in support of the indemnity provisions of Article 20. To
satisfy the liability insurance requirements of this Section 14.01 under a
policy of commercial general liability insurance rather than comprehensive
general liability insurance, the Tenant must obtain an endorsement which applies
the aggregate limits separately to the Premises (ISO Endorsement CG-25-05-11-85,
Amendment - Aggregate Limits of Insurance (Per Location) or an equivalent
endorsement satisfactory to Landlord). The certificate of insurance evidencing
such policy must evidence that the limits of the Tenant's liability insurance
required hereunder apply solely to the Demised Premises and not to other
locations.
(b) Worker's Compensation in statutory amounts and employer's
liability of at least $100,000.00.
(c) Insurance covering its contents and all Tenant Property, from
loss or damage from fire and casualty and, as to Tenant Improvements, such
coverage shall be all-risk special form insurance (or its equivalent) with
replacement cost and agreed amount endorsements naming Landlord as loss payee
and mortgagee under a New York standard non-contributory mortgagee endorsement
as their interests may appear.
(d) Such other insurance as Landlord or any mortgagee may
reasonably require from time to time.
14.02 All policies will be obtained by Tenant and copies of same or, at
Landlord's option, certificates evidencing required coverage will be delivered
to Landlord at least ten (10) days prior to the earlier of (i) Tenant, its
contractors, agents, and/or employees entering the Demised Premises or (ii) the
Commencement Date, together with a copy, certified to be a true copy by the
insurance company, of the endorsement which adds the Landlord and any other
parties required herein, as additional named insureds. All insurance
certificates must be on standard form ACCORD 25-S (7/90) or an equivalent form
acceptable to Landlord. All insurance will be written by companies with a Best's
rating of not less than A+, satisfactory to the Landlord and Mortgagee and
17
authorized to do business in the State of New Jersey. All policies will be for
periods of not less than one (1) year and contain a provision whereby the same
cannot be canceled or materially altered unless Landlord is given at least
thirty (30) days prior written notice of such cancellation. Tenant will procure
and pay for such insurance from time to time and promptly deliver to Landlord
certificates thereof at least thirty (30) days before the expiration thereof.
All such insurance will be primary insurance not contributing with other
insurance Landlord or its contractor and/or construction manager may carry.
If Tenant is prohibited from entering the Demised Premises due to
its failure to comply with the insurance requirements of this Lease, the
Commencement Date of the Lease or the delivery of the Demised Premises to Tenant
will not be delayed.
14.03 If Tenant or its contractor does not procure insurance as
required, Landlord may in accordance with Article 25 of this Lease, cause such
insurance to be issued, and Tenant shall pay to Landlord as additional rent
within ten (10) days of Landlord's request for same the premium for such
insurance and interest plus an administrative fee of Five Hundred ($500.00)
Dollars to compensate Landlord for procuring such insurance.
14.04 All policies of insurance to be obtained pursuant to this Article
14 and all other policies which Landlord or Tenant may carry which affect,
relate or pertain to the Demised Premises, the Building, the Common Facilities
or any of Tenant's contents, the Tenant Property, fixtures and property must
include a waiver by the insurer of all rights of subrogation. Neither Landlord,
Tenant, nor any of their respective agents, officers, employees or invitees will
be liable to the other for, and each hereby expressly releases or waives any
claim for loss or damage caused by any risk covered by a so-called all-risk
special form insurance policy (or its equivalent) or a commercial or
comprehensive general liability policy, as applicable, without regard to whether
such coverage is in effect. Such release and waiver shall include any such risk
as to which a party elects to self-insure, in whole or in part, by virtue of any
applicable deductible provisions of any insurance coverage or otherwise.
Moreover, Tenant expressly waives and releases Landlord from any claim for any
loss or damage to its business, contents, fixtures and/or property, whether or
not such loss or damage results from the negligence of Landlord, its agents,
officers, employees and/or invitees. If the release of Landlord as set forth in
this section contravenes any law with respect to exculpatory agreements, the
liability of Landlord will not be deemed released but will be secondary to the
other's insurer.
If the payment of an additional premium is required for the
inclusion of such a waiver of subrogation provision, each party shall advise the
other of the amount of any such additional premium and the other party at its
election may, but shall not be obligated to, pay the same. If such other party
shall not elect to pay such additional premium, or if it shall not otherwise be
possible to obtain such a waiver of subrogation provision, neither party shall
be required to obtain such a waiver of subrogation provision from its insurer,
but the release provisions of this Section 14.04 shall nonetheless be effective
to the fullest extent possible without resulting in a contravention or breach of
the terms for any applicable insurance policy.
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14.05 Landlord will obtain any and all insurance coverage in connection
with the use and operation of the Building, which will include, but not be
limited to: fire and casualty at full replacement value (all-risk special form
or its equivalent); comprehensive or commercial general liability insurance with
limits of not less than $3,000,000.00/$5,000,000.00 for personal injury or death
and $1,000,000.00 for property damage or $5,000,000.00 combined single limit;
workmen's compensation at no less than the statutory requirement; employer's
liability; difference in conditions; rent insurance for no less than one (1)
year's annual operating income; business interruption insurance at not less than
$500,000.00; and any and all other insurance, including boiler and machinery
insurance, as Landlord or Mortgagee require to protect adequately the interest
of Landlord against risks afforded by such insurance coverage. The cost of such
insurance shall be included in Operating Expenses, and Landlord will use
commercially reasonable efforts to obtain competitive rates.
14.06 Each party will cause the other party to be named as an
additional insured under any insurance policies it is required to obtain and
maintain hereunder.
ARTICLE 15 - ALTERATIONS
15.01 Tenant will not make, cause or permit any alterations, additions
or improvements ("alterations") in or to the Demised Premises without in each
instance obtaining Landlord's prior written consent thereto, which consent shall
not be unreasonably withheld or delayed. By way of illustration but not
limitation, Landlord will be entitled to withhold its consent if the proposed
alterations (i) impair or affect the structural soundness or integrity of the
Demised Premises, Building, or any of the systems or equipment therein, (ii)
lessen the present or future value of the Demised Premises or Building, (iii)
change the type of use of the Demised Premises, or (iv) increase the risk of
damage or injury to the Demised Premises, the Building or the occupants of the
Building. Any such consent by Landlord may be upon condition that the work be
performed by Landlord's agents, servants, employees or contractors and that
Tenant furnish to Landlord such evidence of Tenant's financial ability to assure
payment and/or completion as Landlord may reasonably require. If Landlord so
elects and notifies Tenant at the time of Tenant's request to make such
alterations, Tenant will, at its sole cost and expense, remove any alterations
(structural or non-structural) at the expiration or other termination of this
Lease, repair all damage caused by such removal and restore the Demised Premises
to the condition in which they were prior to the installation of any such
alterations. Nothing herein contained will be construed to restrict Tenant's
right to install or to make any changes in Tenant's own movable trade fixtures.
The provisions of this Article 15 are subject to the terms and conditions of any
mortgage to which this Lease is subordinate and if the consent of any such
mortgagee is required for such work, such consent will be obtained by Tenant
before any such work is commenced. In that regard, Landlord agrees to reasonably
cooperate with Tenant in obtaining the consent of such mortgagee.
Plans and specifications, together with an estimate of the cost of,
for any proposed alterations will be submitted to Landlord upon the request for
its consent. However, such review and consent by Landlord will not be deemed
19
Landlord's opinion as to acceptability to or compliance with municipal
requirements. Upon completion of the alterations Landlord is to receive one
print and one reproducible copy of the "as-built" construction plans. If
Landlord elects to, and notifies Tenant that it will, require removal of
Alterations upon the expiration or earlier termination of this Lease, then
Landlord shall also have the option to require that Tenant post a security
deposit, letter of credit or other evidence of Tenant's financial ability to so
remove such Alterations.
15.02 In making any alteration contemplated by this Article, or any
repair or restoration contemplated by other terms and conditions of this Lease,
the parties will comply with all applicable laws, regulations, ordinances and
orders and procure all requisite permits, all at Tenant's expense. Copies of all
such approvals, authorizations and permits will be delivered to and retained by
Landlord. Each party will, on written request from the other, execute any
documents necessary to be signed on its part in order to obtain any such permit.
All alterations made hereunder will be performed in a first-class, good and
workmanlike manner using new materials at least equivalent in quality to those
used in the construction of the Building.
15.03 All alterations (other than Tenant's trade fixtures) will upon
termination of this Lease immediately be and become the sole and absolute
property of Landlord and will remain upon and be surrendered with the Demised
Premises unless Landlord has elected as provided in Section 15.01 that such
alterations be removed, in which event they will be removed by Tenant and the
Demised Premises restored to its original condition at Tenant's expense upon or
prior to the surrender of possession.
15.04 Whenever Landlord is to perform any work or repairs (as defined
in Article 16) at Tenant's cost, Landlord agrees that the cost thereof shall be
reasonably competitive with the cost to perform similar work or repairs at
similar quality buildings.
15.05 Whenever the estimated cost of the alterations exceeds
$25,000.00, Tenant must post a completion bond, in favor of such company as
Landlord, in such form and with such company as is satisfactory to Landlord.
ARTICLE 16 - MAINTENANCE AND REPAIRS; COVENANT AGAINST WASTE;
RIGHT OF INSPECTION
16.01 Tenant will, at its sole cost and expense, maintain the Demised
Premises and all of its fixtures, systems, equipment and improvements, in clean,
safe, orderly and sanitary condition free of accumulation of dirt and rubbish,
and make all necessary repairs thereto. Tenant will not permit or suffer any
overloading of the floors of the Demised Premises and will not do or suffer any
waste or injury with respect thereto. In case of any destruction or damage of
any kind whatsoever to the Demised Premises, or any part thereof, including,
without limitation, any glass and the Tenant Property in or at the Demised
Premises, Tenant shall repair said damage or destruction as speedily as possible
at Tenant's own cost and expense, provided, however, that if any such damage or
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destruction results solely from the act, fault or negligence of Landlord, or
anyone acting under Landlord, then it will be the responsibility of Landlord to
make the repairs at its expense. At Tenant's sole cost and expense, Tenant will
(a) repair HVAC, electrical and plumbing system(s) ("Tenant System") which
service the Demised Premises. When used in this Article, the term "repair(s)"
includes replacement(s), restoration(s), addition(s), improvement(s),
alteration(s) and/or renewal(s) when necessary.
16.02 Upon prior reasonable notice (except in case of emergency when
notice will not be required) Tenant will permit Landlord and its authorized
representative to enter the Demised Premises during usual business hours for the
purposes of (i) inspecting the same, (ii) curing any defaults on the part of
Tenant in causing any necessary repairs to be made, (iii) performing any work
which may be necessary to comply with any laws, ordinances, rules, regulations,
or requirements of any public authority, or which may be necessary to prevent
waste or deterioration in connection with the Demised Premises, and (iv)
exhibiting the Demised Premises during the last year of the Term. Nothing in
this Section 16.02 imposes any duty upon the part of Landlord to do any such
work or to make any repairs to the Demised Premises of any kind whatsoever, and
the performance thereof by Landlord will not constitute a waiver of Tenant's
default in failing to cause same to be done.
16.03 (a) Tenant agrees that Landlord may, at its sole discretion, but
without any obligation to do so, and at any time or from time to time during the
Term, perform structural and/or non-structural renovation work on, in and/or to
the Building, any of which work may require access to the same from within the
Demised Premises. Tenant will provide such access at all reasonable times, upon
reasonable notice, for the purpose of performing such work, and Landlord will
incur no liability to Tenant, nor will Tenant be entitled to any abatement of
rent, on account of any Inconvenience at the Demised Premises (provided that
Tenant is not denied access to said Demised Premises).
(b) Landlord will use reasonable efforts (which will not include
any obligation to employ labor at overtime rates) to avoid disruption of
Tenant's business during any such entry upon the Demised Premises and agrees to
use overtime labor, if requested by Tenant, at Tenant's expense.
(c) If Tenant commences any action or proceeding seeking
injunctive, declaratory or monetary relief in connection with the rights
reserved to Landlord under this Section, or if Landlord commences any action or
proceeding to obtain access to the Demised Premises in accordance with this
Section, then in either event if Landlord prevails in any such action or
proceeding Tenant will pay to Landlord, as additional rent, a sum equal to all
of Landlord's reasonable legal fees, costs and disbursements in any way related
to or arising out of such action or proceeding.
16.04 Whenever Tenant is required to make a repair, Landlord, at its
option, may elect that the repair be made, at Tenant's cost, by Landlord, or its
agents, servants, employees or contractors, provided that the cost thereof is
commercially competitive.
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ARTICLE 17 - ELECTRIC ENERGY
17.01 Landlord shall not be liable for any failure, inadequacy or
defect in the character or supply of electric energy furnished by the public
utility to the Demised Premises, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner, whatsoever, by reason of
any such failure, inadequacy or defect.
17.02 Tenant's use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises.
ARTICLE 18 - WATER SERVICE
Landlord shall not be liable for any failure, inadequacy or defect in
the character or supply of the water furnished by the public utility to the
Demised Premises, nor shall Tenant's covenants and obligations under this Lease
be reduced or abated in any manner, whatsoever, by reason of any such failure,
inadequacy or defect.
ARTICLE 19 - ACCESS
Tenant shall have 24-hour, 7-day a week access to the Demised Premises,
subject to the terms and provisions of this Lease and of Legal Requirements.
ARTICLE 20 - CONSTRUCTION LIENS
20.01 Tenant will not suffer or permit any Construction Lien Claim or
Notice of Unpaid Balance and Right To File Lien ("Lien") against the Demised
Premises and/or Property or any part thereof, by reason of any work, services,
material and/or equipment provided, or claimed to have been provided, for or to
Tenant or any contractor and/or subcontractor employed in connection with any
improvement of or to the Demised Premises or any part thereof through or under
Tenant or anyone holding same through or under Tenant. If at any time a Lien is
filed against the Demised Premises and/or Property, Tenant will cause the same
to be discharged of record within thirty (30) days after notice to Tenant of the
filing of same. If Tenant fails to discharge any such Lien within such period,
then, in addition to any other right or remedy of Landlord, Landlord may elect,
but shall not be obligated, either to procure the discharge of the Lien by
bonding or by payment or deposit into court of the amount claimed to be due, or
to compel the prosecution of an action for the foreclosure of such Lien by the
lienor and to pay the amount of the judgment, if any, in favor of the lienor
with interest, costs and allowances. Any amounts paid or deposited by Landlord
for any of the aforesaid purposes, and all legal and other expenses and
disbursements of Landlord, including reasonable counsel fees, in defending any
action or in or about procuring the discharge of such Lien, together with
interest thereon at the rate which CitiBank announces as its so called prime
rate or base rate, from time to time, plus five (5%) percent, from the date of
payment or deposit, will become due and payable forthwith by Tenant to Landlord,
as additional rent.
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20.02 Nothing in this Lease will be deemed or construed as the consent
or authorization of Landlord, express or implied, by inference or otherwise, to
any improvement to or any alteration or repair of or to the Demised Premises or
any part thereof, or to Tenant's contracting for or permitting the providing of
any work, services, material and/or equipment, which might give rise to the
right to file any Lien against Landlord's interest in the Demised Premises or
the Property.
ARTICLE 21 - INDEMNIFICATION
21.01 Tenant covenants and agrees, at its sole cost and expense and in
addition to any other right or remedy of Landlord hereunder, to indemnify and
save harmless Landlord and/or Mortgagee from and against any and all loss, cost,
expense, liability and claims (but excluding any liability arising solely out of
the negligence of Landlord or its agents, employees or contractors), including,
without limitation, reasonable attorneys' fees and court costs, arising from or
in connection with (a) Tenant's use, occupancy, operation and control of the
Demised Premises, (b) the conduct or management of any work, or any act or
omission whatsoever, done in or on the Demised Premises by or under the
direction or at the request of Tenant, (c) any breach or default on the part of
Tenant in the payment of any rent or performance of any covenant or agreement on
the part of Tenant to be performed pursuant to the terms of this Lease, or (d)
any act or negligence of Tenant or any of its agents, contractors, servants,
employees, licensees or invitees.
21.02 In the event that any action or proceeding is brought against
Landlord and/or Mortgagee by reason of any claims covered by the foregoing
indemnity, Tenant will, upon notice from Landlord and/or Mortgagee, resist or
defend such action or proceeding by counsel reasonably satisfactory to Landlord
and/or Mortgagee. Landlord and/or Mortgagee will not defend such action or
proceeding so long as Tenant is diligently doing so. Landlord and/or Mortgagee
will give prompt notice to Tenant of any action or proceeding brought against
Landlord and/or Mortgagee by reason of any claims covered by the foregoing
indemnity, together with copies of any documents served on Landlord and/or
Mortgagee in connection therewith, and Landlord and/or Mortgagee will not settle
any such claim without Tenant's written consent.
ARTICLE 22 - CONDEMNATION
22.01 If, at any time during the Term of this Lease, title to the whole
or materially all of the Building and/or Demised Premises is taken by the
exercise of the right of condemnation or eminent domain (hereinafter referred to
as the "proceedings") or by agreement between Landlord and those authorized to
exercise such right, this Lease will terminate and expire on the date of such
taking, all Fixed and Additional Rent provided to be paid by Tenant will be
apportioned and paid to the date of such taking, and the total award made in
such proceedings will be paid to Landlord; provided, however, Tenant shall be
entitled to claim, prove and receive in the condemnation proceeding such award
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or compensation, if any, as may be allowed for Tenant's personal property, but
only if such award or compensation shall be made by the condemning authority in
addition to, and shall not result in a reduction of, the award or compensation
made or paid by it to Landlord. For the purpose of this Article 22, "materially
all of the Building and/or Demised Premises" will be deemed to have been taken
if, as a result of the taking, the premises remaining after such taking are not
reasonably usable for Tenant's business purposes. Any dispute as to whether the
premises are reasonably usable for Tenant's business purposes will be settled by
arbitration to be held in New Jersey in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's determination in any court having jurisdiction and the parties
consent to the jurisdiction of the Superior Court New Jersey courts for this
purpose.
22.02 If, at any time during the Term of this Lease, title to less than
materially all of the Building and/or Demised Premises is taken as aforesaid (a
"Partial Condemnation"), the entire award will be paid to Landlord, and Landlord
will have the option to (a) restore the Building and/or Demised Premises to an
architecturally and/or functionally complete unit with reasonable promptness,
subject to Unavoidable Delays, provided that after such restoration the Demised
Premises as restored is sufficient to meet Tenant's needs, or (b) terminate this
Lease. Landlord will exercise its option to cancel by written notice to Tenant
to be given not more than forty-five (45) days from the date of such Partial
Condemnation and this Lease will become null and void ninety (90) days after
said notice; provided further that, if Landlord opts to restore the Demised
Premises, but such restoration is not completed within one hundred fifty (150)
days, and Tenant is not able to reasonably continue the operation of its
business at the Demised Premises as a result thereof, the Tenant shall have the
option of terminating the Lease by serving written notice of such termination on
or before ten (10) days subsequent to such 150-day period and the failure of
Tenant to so notify Landlord shall constitute a waiver of the right of
termination.
22.03 If title to less than materially all of the Building and/or
Demised Premises is taken as aforesaid and this Lease continues, the Fixed Rent,
and any Additional Rent will be reduced to an amount equivalent to the
proportionate square footage of the Demised Premises.
22.04 Tenant further agrees that if, at any time after the date hereof,
the whole or any part of the Building and/or Demised Premises is taken or
condemned by any competent authority for its temporary use or occupancy (herein
a "Taking"), this Lease will not terminate by reason thereof and Tenant will
continue to pay, in the manner and at the time herein specified, the full amount
of the Base Rent and all Additional Rent payable by Tenant hereunder, and,
except only to the extent that Tenant may be prevented from so doing pursuant to
the terms of the order of the condemning authority, to perform and observe all
of the other terms, covenants, conditions and obligations hereof upon the part
of Tenant to be performed and observed, as though such Taking had not occurred.
In the event of any such Taking Tenant will be entitled to receive the entire
amount of any award made for such Taking applicable to the Demised Premises,
whether paid by way of damages, rent or otherwise (except that if the award is
made in a lump sum, the award will be held by the Landlord and paid out to
Tenant in equal monthly installments), except that portion of the award
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attributable to or for restoration, if any, which will be held by and belong to
the Landlord, provided, however, if such period of temporary use or occupancy
shall extend beyond the expiration date or termination of this Lease such award
shall be apportioned between Landlord and Tenant as of such date of expiration
or termination of the Term. If the period of temporary use or occupancy ends
during the Term of this Lease, Tenant will, at its sole cost and expense,
restore the Demised Premises as nearly as practicable to the condition of the
same immediately prior to the Taking, and if the period of temporary use or
occupancy does not end during the Term of this Lease, Landlord will be entitled
to the portion of the award that is attributable to restoration of the Demised
Premises.
22.05 Except as expressly provided in the preceding sections of this
Article, Tenant will neither have nor make any claim whatsoever for any award or
payment for the Demised Premises or any part thereof, and in any event Tenant
shall neither have nor make any claim whatsoever for any award or payment for
the value of Tenant's leasehold under this Lease or the value of the unexpired
portion of the Term of this Lease. Nothing herein shall preclude Tenant from the
right to recover for direct loss of its personal property or trade fixtures or
for relocation expenses, if applicable.
ARTICLE 23 - LIMITATION OF LIABILITY
23.01 Notwithstanding any contrary provision contained in this Lease,
neither Landlord, nor any of its officers, directors, principals, partners,
agents or employees will be responsible or liable to the Tenant:
(a) for any damage, injury or death resulting from acts or
omissions of persons occupying or using any other part of the Building or for
any injury, damage or death resulting from bursting, stoppage or leakage of
water, sprinkler, gas, sewer or steam pipes; or
(b) for any consequential damages or lost profits, under any
circumstances whatsoever; or
(c) with respect to any of the provisions of this Lease.
Notwithstanding the provisions of this Section, if Landlord is in
default with respect to its obligations hereunder and is thereby or otherwise
determined to be liable to Tenant (whether as a result of negligence, strict
liability, breach of warranty or any other theory or concept of liability),
Landlord will be liable for monetary damages only and as of the date such cause
of action occurs, following a final non-appealable judgment establishing such
default or liability. In any such event, Tenant will look solely to the equity
of Landlord in the Building and the proceeds of any applicable insurance
policies for the satisfaction of Tenant's remedies or Landlord's liability and
it is expressly understood and agreed that Landlord's liability under the terms,
covenants, warranties and obligations of this Lease or otherwise, will in no
event exceed the loss of its equity in the Building, or extend personally to any
principal, partner, member, manager or officer, director, agent or employee, as
applicable, of Landlord.
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ARTICLE 24 - DAMAGE OR DESTRUCTION
24.01 In case of any damage to or destruction of the Demised Premises,
or any part hereof, Tenant shall promptly give written notice thereof to
Landlord.
24.02 If any portion of the Demised Premises or the Building is damaged
or destroyed to such an extent that the cost of restoration, as reasonably
estimated by Landlord, will equal or exceed twenty-five (25%) percent of the
replacement value of the Building (exclusive of foundations) just prior to the
occurrence of the damage or destruction, then the Landlord shall have the
option, to be exercised by giving written notice to Tenant within sixty (60)
days of the event of damage or destruction, of: (a) terminating this Lease or
(b) causing the Demised Premises to be repaired or restored (but only to the
extent that it receives insurance proceeds from the holder of any mortgage lien
or directly from the insurance company, as the case may be); provided, however,
that if (a) more than 50% of the Demised Premises are damaged as a result of
such casualty and (b) if, in the opinion of a qualified architect or contractor
the Demised Premises cannot, as a result of such damage, be restored within one
hundred eighty (180) days then and in that event Tenant shall have the option,
which must be expressed in writing within fifteen (15) days of the damage or
destruction, to terminate this Lease. If Landlord or Tenant elects to terminate
pursuant to this Article 24.02, Tenant shall surrender and vacate the Demised
Premises within 60 days of the receipt, or the giving, of such notice, as the
case may be. From and after the date of such damage or destruction until the
Demised Premises are restored (if they are to be restored) Tenant shall remain
and continue liable for the payment of the Fixed Rent, Operating Expenses,
Additional Rent, and all other charges required hereunder to be paid by Tenant
but such rent, charges and impositions shall be abated in such proportion as the
square footage of the Demised Premises which is untenantable bears to the total
square footage of the Demised Premises.
24.03 In the event that the Demised Premises or Building is damaged or
destroyed by a casualty insured by Landlord and the cost of restoration as
reasonably estimated by Landlord is less than twenty-five (25%) percent of the
replacement value of the Building (exclusive of foundations) just prior to the
occurrence of the damage or destruction, then Landlord shall promptly repair,
but only to the extent that it receives insurance proceeds from the holder of
any mortgage lien or directly from the insurance company, as the case may be. If
Landlord causes the Demised Premises to be repaired or restored pursuant to
Article 24.02 or 24.03 such repair and/or restoration work shall be done with
reasonable diligence and promptness (subject to Unavoidable Delays). In such
event, the provisions of this Lease shall be unaffected and Tenant shall remain
and continue liable for the payment of the Fixed Rent, Operating Expenses,
Additional Rent, and all other charges required hereunder to be paid by Tenant
but such rent, charges and impositions shall be abated in such proportion as the
square footage of the Demised Premises which is untenantable bears to the total
square footage of the Demised Premises.
24.04 Notwithstanding any contrary provision captioned herein,
Landlord's obligation to repair shall not exceed the scope of the work required
to be done by Landlord at the outset of this Lease and shall not extend to any
obligation to repair or restore Tenant's Property. Furthermore, should the
damage or destruction occur during the last year of the Term or any extended
26
term of this Lease, Landlord shall, not withstanding the provisions of Article
24.03, have the option of not repairing the Demised Premises and if Landlord
does not so repair, Tenant will have the option of terminating this Lease.
24.05 Notwithstanding any contrary provision contained herein, if the
Demised Premises shall be damaged or destroyed as a result of the act, fault or
negligence of the Tenant, or anyone acting or claiming under Tenant, there shall
be no abatement as provided in Article 24.03.
ARTICLE 25 - SELF-HELP
25.01 Tenant covenants and agrees that if it at any time fails to make
any payments or perform any act which it is obligated to make or perform under
this Lease, then Landlord may, but will not be obligated to, after Tenant's time
to make any such payment or perform any such act as provided in this Lease has
expired and any required notice has been given, and without waiving or releasing
Tenant from any of its obligations under this Lease, make any such payment or
perform any such act in such manner and to such extent as is necessary and
consistent with Tenant's obligations hereunder. In exercising any such rights,
Landlord may pay or incur reasonable costs and expenses, including, without
limitation, reasonable attorneys' fees. Notwithstanding the foregoing, Landlord
may make any such reasonable payment or perform any such act before Tenant's
time to do so (as provided in Article 8) has expired, if payment or performance
of the same is necessary or required prior to the expiration of the applicable
grace period for the preservation or protection of the Building and/or Demised
Premises.
25.02 All reasonable sums so paid or incurred in connection with the
performance of any such act by Landlord, together with interest thereon from the
date that the Landlord made such expenditure at the rate which CitiBank
announces as its so-called prime rate or base rate, from time to time for the
first month after the making of such expenditure, and thereafter at the rate of
five (5) percentage points above the such prime lending rate or the maximum rate
allowed by law, whichever is less, will be deemed additional rent hereunder and,
except as otherwise in this Lease expressly provided, will be payable to
Landlord on demand or, at the option of Landlord, may be added to any rent then
due or thereafter becoming due under this Lease.
ARTICLE 26 - BROKER
26.01 Landlord and Tenant represent to each other that they dealt with
no broker in connection with this Lease other than Trillium Realty Agency, Inc.
and Insignia/ESG Business Partners (collectively, the "Brokers").
26.02 Tenant agrees that if any claim should be made for commissions by
any broker other than Broker, by reason of any act of Tenant or its
representatives, Tenant will hold Landlord free and harmless from any and all
loss, liabilities and expenses in connection therewith. Landlord will give
prompt notice to Tenant after any such claim is made by any broker. Tenant will
have the right to defend such claim and Landlord will not pay or settle such
claim as long as Tenant is defending same.
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26.03 Landlord agrees that if any claims should be made for commissions
by any broker other than Broker by reason of any act of Landlord or its
representatives, Landlord will hold Tenant free and harmless from any and all
loss, liabilities and expenses in connection therewith. Tenant will give prompt
notice to Landlord after any such claim is made by any such broker. Landlord
will have the right to defend such claim and Tenant will not pay or settle such
claim as long as Landlord is defending same. Landlord will be responsible for
the Broker's commission pursuant to a separate agreement, and such commission
will not be an Operating Expense.
ARTICLE 27 - NOTICES
27.01 Except as expressly provided in this Lease to the contrary, all
notices, demands and requests (other than invoices for Fixed Rent or Additional
Rent) which are required to be given by either party to the other will be in
writing and will be sent by United States first-class certified mail, return
receipt requested, addressed (i) to Landlord at its address set forth in this
Lease, and with a copy to Mortgagee, (ii) to Tenant at the Demised Premises, or
(iii) at such other place as either party may from time to time designate in a
written notice to the other party. Until Tenant takes occupancy of the Demised
Premises, notices to Tenant shall be at Tenant's address as set forth in the
Lease.
27.02 Any notice given in accordance with the provisions of this
paragraph shall be deemed given when the primary notice is actually delivered or
when proper delivery of the primary notice is refused, without regard to the
date on which any copy is delivered or proper delivery thereof is refused. Any
notice (primary or copy) given to an entity shall be deemed to be delivered on
the date such notice is received or proper delivery is refused by the entity,
without regard to when such notice is delivered by the entity to the individual
to whose attention it is directed and without regard to the fact that proper
delivery is refused by someone other than the individual to whose attention it
is directed. Notices may be given on behalf of any party by such party's
attorney(s).
27.03 Either party may, at its option, substitute for service by United
States first-class certified mail, service by Federal Express or similar
overnight courier, provided that such courier obtains and makes available to its
customers written evidence of delivery. Notice given via such courier is deemed
to be given upon receipt or upon refusal to accept delivery, as applicable.
Notices may be given by a party or by an agent or attorney for a party on its
behalf.
ARTICLE 28 - ESTOPPEL CERTIFICATE
28.01 Each party agrees that at any time and from time to time, within
ten (10) days of the receipt of written request by the other, it will execute,
acknowledge and deliver a statement in writing certifying (i) that this Lease is
unmodified and in full force and effect, or if there have been modifications
28
that the same is in full force and effect as modified and stating the
modification, (ii) the dates to which the Fixed Rent and other charges have been
paid and the amount of same, (iii) to the best of knowledge of the certifying
party whether there are any defaults or rent abatements or offsets claimed, and
(iv) any other reasonable information including but not limited to the
representations set forth in Article 11. Notwithstanding the foregoing, it is
intended that any such statement delivered pursuant to this Article may be
relied upon by any prospective purchaser of the fee or mortgagee or assignee of
any mortgage of the Landlord's interest in the Building and/or Demised Premises
and the statement will contain such other information as is requested, and be in
the form required, by such purchaser, mortgagee or assignee.
ARTICLE 29 - SECURITY DEPOSIT
29.01 Simultaneously with the execution of this Lease, Tenant will
deposit with Landlord the Security Deposit (which will not bear interest to
Tenant unless required to do so by any provision of law) as security for
Tenant's faithful and timely payment and performance by Tenant of all of
Tenant's obligations, covenants, conditions and agreements under this Lease.
Within a reasonable time after the expiration of the Term, after calculation of
adjustments to Tenant's Operating Expenses for the last Lease Year, Landlord
will return the Security Deposit to Tenant, less such portion thereof as
Landlord has utilized to make good any failure by Tenant to comply with any of
Tenant's obligations, covenants, conditions or agreements hereunder.
29.02 After any Event of Default by Tenant hereunder, Landlord has the
right, but is not obligated, to apply all or any portion of the Security Deposit
to cure each default, in which event Tenant will, upon demand, promptly deposit
with Landlord the amount necessary to restore the Security Deposit to its
original amount.
29.03 The Security Deposit will be held by Landlord and may be
commingled with its other funds. In the event of sale or transfer of Landlord's
interest in the Building, Landlord shall transfer the Security Deposit to such
purchaser or transferee, in which event Landlord will give Tenant notice of such
transfer and upon such transfer, be released from all liability to Tenant for
the return of the Security Deposit. Tenant will look only to the new landlord
for the return of the Security Deposit.
ARTICLE 30 - OPTION TO EXTEND TERM
30.01 Landlord hereby grants to Tenant the option to extend the term of
this Lease, with respect to all, but not part of the Demised Premises. Such
option term will be for a period of five (5) years. The option to extend will be
exercised by Tenant's giving written notice to Landlord not less than nine (9)
months prior to the expiration of the original term and Tenant's failure to so
notify Landlord will be considered a forfeiture by Tenant of this option
provided, however, that if at the time (a) Tenant exercises its option, or (b)
the extended term is to commence, Tenant is in default hereunder, and Tenant has
29
received notice (if notice is required) of default and (i) such default has not
been cured, or (ii) the time to cure such default has expired, or (c) Tenant has
assigned this Lease to sublet all or a portion of the Demised Premises, then and
in any such event, Landlord may deny Tenant its rights under this Article. This
option may not be exercised separately from this Lease.
30.02 The extended term will be upon the same terms, covenants and
conditions as provided in this Lease including the obligation of Tenant to pay
Operating Expenses and Additional Rent for the term, except:
(1) there will not be any further option to extend the Term at the
expiration of the extended term; and
(2) Tenant will pay to Landlord as Fixed Rent during each year of
any extended term an amount equal to the greater of the Fixed Rent payable
during the fifth year of the original term or the Fair Market Value (as
hereinafter defined) of the Demised Premises.
30.03 For purposes of this Article, the Fair Rental Value of the
Demised Premises, or any portion thereof, will be the amount a willing tenant
would pay to a willing Landlord (neither party being forced to lease or rent and
taking into account the terms of the Lease, including the fact that Tenant will
continue to pay Operating Expenses. Landlord and Tenant will each, promptly
after Landlord's receipt of Tenant's notice of election to extend, appoint an
appraiser who will be a member of the American Institute of Real Estate
Appraisers (M.A.I.) or a licensed real estate appraiser. If the value determined
by the appraiser arriving at the higher value ("Higher Value") will be less than
110% of the value determined by the appraiser arriving at the lower value
("Lower Value"), the average of the two values will be the Fair Rental Value
provided, however, if the Higher Value will be more than 110% of the Lower
Value, the two appraisers will promptly appoint a third appraiser with the
foregoing qualifications who will also ascertain such value ("Third Appraiser")
(if the appraisers are unable to agree on a third appraiser, such third
appraiser will be appointed by the New Jersey Superior Court Assignment Judge
for ▇▇▇▇▇▇ County acting in a non-judicial capacity) and (i) if the Third
Appraisal falls between the Higher Value and the Lower Value, then the
determination of the Third Appraiser will be the Fair Rental Value, (ii) if the
Third Appraisal is greater than the Higher Value, then the Higher Value will be
the Fair Rental Value, and (iii) if the Third Appraisal is less than the Lower
Value, then the Lower Value will be the Fair Rental Value. Landlord and Tenant
will each be responsible for the fees and expenses of its appraiser and will be
equally responsible for the fees of the third appraiser if such is required. The
decision of the appraiser or appraisers, as the case may be, will be binding.
30.04 The Fixed Rent due pursuant to Article 30.02 is due and payable
to the Landlord in equal monthly installments commencing with the month when the
extended term of this Lease commences (any retroactive payments then due being
payable within fourteen days after giving of such notice), and in the event of
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any subsequent redetermination of such amount, the adjustment thus indicated
will be made promptly between the Landlord and the Tenant.
30.05 Pending resolution of the issue of the Fair Rental Value, Tenant
will pay Landlord, as of the commencement of the extended term, the Fixed Rent
utilizing the Fair Rental Value as determined by Landlord's appraiser, which
Fixed Rent will be subject to retroactive adjustment upon final determination of
this issue.
ARTICLE 31 - SIGNS
31.01 Tenant shall be permitted to place its name on one top facade of
the Building provided (i) Tenant shall at its sole cost and expense, be
responsible for the cost of the sign, any associated permitting and maintenance,
and the cost of removing the sign at the end of the Term; (ii) any access and
work required to install, maintain, and/or make modifications to the sign during
the Term shall be done in strict compliance with Landlord's requirements for
roof access and any roof warranty then in effect; (iii) Tenant shall have such
insurance, naming Landlord as an additional insured, as Landlord may reasonably
require; and (iv) Landlord will consent to such signage, such consent not be
unreasonably withheld.
31.02 Any access or work performed by or on behalf of Tenant shall be
subject to Tenant's obligations to indemnify Landlord as provided in Article 21.
ARTICLE 32 - MODIFICATIONS REQUESTED BY MORTGAGEE
32.01 Tenant hereby agrees that if any lender to the Landlord proposing
to make a mortgage on Landlord's interest in the Building and/or Demised
Premises requires, as a condition to making any loan to be secured by such
mortgage, that Tenant agrees to modifications to this Lease, or that Tenant
supply financial statements and/or other information, then Tenant agrees that it
will enter into an agreement with Landlord making such modifications as are
requested by such lender and will supply such financial statements and other
information as are requested by such lender. Under no circumstances will Tenant
be required to agree to any modification which changes the Demised Premises,
increases the Base Rent or any Additional Rent, abridges or enlarges the Term,
or requires the expenditure of funds by Tenant which Tenant is not obligated to
expend pursuant to the existing terms of this Lease. Tenant will execute such
modification or supply such information within ten (10) days after Landlord's
request. In the event of Tenant's refusal, Landlord will have the right, among
other remedies, to cancel and terminate this Lease.
32.02 No assignment of this Lease and no agreement to make or accept
any surrender, termination or cancellation of this Lease and no agreement to
modify so as to reduce the rent, change the term, or otherwise materially change
the rights of Landlord under this Lease, or to relieve Tenant of any obligation
or liability under this Lease, shall be valid unless consented to by Landlord's
mortgagees of record, if such is required by the mortgagees, in writing. No
Fixed Rent, Additional Rent, or any other charge (with the exception of the
security deposit described in this Lease) shall be paid more than ten (10) days
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prior to the due date thereof and payments made in violation of this provision
(except to the extent that such payments are actually received by a mortgagee)
shall be a nullity as against any such mortgagees of record, and Tenant shall be
liable for the amount of such payments to such mortgagees.
32.03 No act or failure to act on the part of Landlord which would
entitle Tenant under the terms of this Lease, or by law, to be relieved of
Tenant's obligations hereunder or to terminate this Lease, shall result in a
release or termination of such obligations or termination of this Lease unless
(a) Tenant shall have first given written notice of Landlord's act or failure to
act to Landlord's mortgagees of record, if any, specifying the act or failure to
act on the part of Landlord which could or would give basis to Tenant's rights;
and (b) such mortgagees, after receipt of such notice, have failed or refused to
correct or cure the condition complained of within a reasonable time thereafter,
provided that nothing contained in this Section shall be deemed to impose any
obligation on any such mortgagees to correct or cure any condition. As used
herein, a "reasonable time" includes a reasonable time to obtain title to the
mortgaged premises if the mortgagee elects to do so and a reasonable time to
correct or cure the condition if such condition is determined to exist, but in
no event less than 120 days from the date of the mortgagees' receipt of the
above described notice.
ARTICLE 33 - PARKING
33.01 Tenant will have the exclusive right to the use of all parking
spaces at the Demised Premises. Tenant's use of the parking facilities shall be
subject to all of Landlord's regulations with respect to parking and to Tenant's
compliance with any Legal Requirements with respect to such parking.
ARTICLE 34 - SHORT FORM LEASE
The parties will, at the request of either one, execute duplicate
originals of an instrument in recordable form which will constitute a short form
of lease, setting forth a description of the Demised Premises, the Term of the
Lease and any other portions hereof, except the Rent provisions, that either
party may reasonably request.
ARTICLE 35 - CAPTIONS
The captions in this Lease are for convenience and reference only, and
in no way define, limit or describe the scope or intent of this Lease and are in
no way to affect the interpretation or construction of this Lease.
ARTICLE 36 - APPLICABILITY TO SUCCESSORS AND ASSIGNS
The provisions of this Lease will be binding upon and inure to the
benefit of Landlord and Tenant, and their respective heirs, successors, legal
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representatives and assigns, but nothing herein will grant to Tenant the right
to assign this Lease other than pursuant to the provisions hereof.
ARTICLE 37 - HOLDOVER
If Tenant continues in the occupancy of the Demised Premises after the
expiration or sooner termination of the Term, and Landlord does not agree in
writing to such holdover at the same Fixed Rent as provided herein, such
occupancy will be deemed to be a default by Tenant (without the necessity of any
notice). Tenant's occupancy will be deemed a month-to-month tenancy subject to
the terms of the Lease and Tenant will pay 200% the Fixed Rent in effect upon
the expiration of the Term together with the Additional Rent herein provided.
The provisions of this Article will not be construed (i) to relieve Tenant from
liability to Landlord for damages resulting from any such holding over, or (ii)
as Landlord's consent for Tenant to holdover.
ARTICLE 38 - MISCELLANEOUS
38.01 Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreements) which may be made between the parties concurrently
with the execution and delivery of this Lease. All understandings and agreements
heretofore had between the parties are merged in this Lease and any other
written agreements) made concurrently herewith, which alone fully and completely
express the agreement of the parties and which are entered into after full
investigation. Neither party has relied upon any statement or representation not
embodied in this Lease or in any other written agreements) made concurrently
herewith.
38.02 Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that no violation of
the provisions of Article 13 shall operate to vest any rights in any successor
or assignee of Tenant.
38.03 The obligations of Tenant hereunder shall not be affected,
impaired or excused, nor shall Landlord have any liability whatsoever to Tenant,
(a) because Landlord is unable to fulfill, or is delayed in fulfilling, any of
its obligations under this Lease due to Unavoidable Delays or (b) because of any
failure or defect in the supply, quality or character of any utility or service
furnished to the Demised Premises for any reason.
38.04 Any liability for payments hereunder (including, without
limitation, Additional Rent), and any obligations of Tenant which involve
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performance, in any particular, after the end of the term (including, but not
limited to, any duty to indemnify Landlord) or which cannot be ascertained to
have been fully performed until after the end of the term, shall survive the
expiration of the Term or earlier termination of this Lease.
38.05 Tenant shall give prompt notice to Landlord of (a) any serious or
substantial accident and/or occurrence on the Demised Premises for which
Landlord might be responsible, (b) any fire or other casualty in the Demised
Premises, and (c) all damage to or defects in the Demised Premises, including
the fixtures, equipment and appurtenances thereof.
38.06 This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. If any provision of this Lease shall be
invalid or unenforceable, the remainder of this Lease shall not be affected and
shall be enforced to the extent permitted by law. The table of contents,
captions, headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. This Lease shall be construed
without regard to any presumption or other rule requiring construction against
the party causing this Lease to be drafted. Each covenant, agreement, obligation
or other provision of this Lease on each party's part to be performed, shall be
deemed and construed as a separate and independent covenant of the parties, not
dependent on any other provision of this Lease. All terms and words used in this
Lease, regardless of the number or gender in which they are used, shall be
deemed to include any other number and any other gender as the context may
require.
38.07 If either party retains the services of an attorney to enforce
its rights pursuant to this Lease, then and in that event the losing party shall
pay all reasonable attorney's fees, as well as court costs, incurred by the
prevailing party in so seeking to enforce its rights.
38.08 Tenant shall observe and comply with all rules and regulations
applicable to the Building or Demised Premises reasonably promulgated by
Landlord from time to time (the "Rules and Regulations") as such rules and
regulations may be amended from time to time. Landlord shall provide Tenant,
from time to time, with true and complete copies of all Rules and Regulations.
Landlord shall apply to the Rules and Regulations in good faith and without
discrimination against Tenant and any other tenant of the Property. The terms,
covenants, conditions, and provisions of this Lease shall govern in the event of
any conflict or inconsistency between this Lease and Landlord's Rules and
Regulations.
Landlord shall not be liable for the non-compliance by any other
tenant, or occupant with the Rules and Regulations. Landlord covenants that any
enforcement of the Rules and Regulations by Landlord shall be in a
non-discriminatory manner.
38.09 Except as otherwise provided herein, if excavation, foundation,
other substructure work, or other construction work shall be made or authorized
upon land adjacent to the Premises, Tenant shall afford to the Person causing
(or authorized to cause) such excavation, license to enter the Premises to do
such work as necessary to preserve the walls of the Building from injury or
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damage, and to support the same by proper foundations, without any claim for
damages or indemnity against Landlord, or, so long as such does not interfere
unreasonably or materially with Tenant's access to or use occupancy of the
Demised Premises, without diminution or abatement of Rents.
38.10 THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO
BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING OF THE
DEMISED PREMISES, NOR CONFER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER
PARTY UNTIL THE EXECUTION THEREOF BY, AND DELIVERY TO, EACH PARTY.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
{SIGNATURES APPEAR ON THE FOLLOWING PAGE}
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Landlord:
WITNESS: ▇▇ ▇▇▇▇ ▇▇▇▇▇ LLC
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
ATTEST: Tenant:
Windsortech, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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