LEASE AGREEMENT LIBERTY PROPERTY LIMITED PARTNERSHIP Landlord AND FREE FOR ALL, INC. Tenant AT Marlton, New Jersey 08053 LEASE AGREEMENT
Exhibit 10.1
LIBERTY
PROPERTY LIMITED PARTNERSHIP
Landlord
AND
Tenant
AT
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THIS LEASE AGREEMENT is made
by and between LIBERTY PROPERTY
LIMITED PARTNERSHIP, a Pennsylvania limited partnership (“Landlord”), and
FREE FOR ALL, INC., a
corporation organized under the laws of Delaware (“Tenant”), and is dated as of
the date on which this Lease has been fully executed by Landlord and
Tenant.
1. Basic
Lease Terms and Definitions»
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(a) Premises: Suite
310, as shown on Exhibit
“A”, consisting of 2,668 rentable square feet.
(b) Building: 83,260
rentable square feet.
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
(c) Term: Twenty-Six
(26) months (plus any partial month from the Commencement Date until the first
day of the next full calendar month during the Term).
(d) Commencement
Date: August 17, 2009, or the date Tenant takes possession of
the Premises, if earlier.
(e) Expiration
Date: The last day of the Term.
(f)
Minimum Annual
Rent: Payable in monthly installments as follows:
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Month of Term
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Annual
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Monthly
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Month of Term
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Annual
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Monthly
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*1-2
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$0.00
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13-24
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$19,343.00
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$1,611.92
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3-12
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$1,611.92
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25-26
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$1,611.92
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*Monthly
installments of Annual Operating Expenses shall be payable by Tenant in these
months notwithstanding that no installments of Minimum Annual Rent are then due
and payable.
(g) Annual Operating
Expenses: $32,016.00, payable in monthly installments of
$2,668.00, subject to adjustment as provided in this Lease.
(h) Tenant’s
Share: 3.20% (also see Definitions).
(i)
Use: General
office.
(j)
Security
Deposit: $8,559.84.
(k) Addresses For
Notices:
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Landlord:
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Liberty
Property Limited Partnership
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Tenant:Before
the Commencement Date:
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Attention:
Vice President/City Manager
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Voorhees,
New Jersey 08043
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On or after the Commencement
Date: Premises
(l) Tenant’s North American Industry
Classification System Number: 524292.
(m) Guarantor: Not
required.
(n) Additional Defined
Terms: See Rider 1 for the definitions of other
capitalized terms.
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(o)
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Contents: The
following are attached to and made a part of this Lease:
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Rider
1 – Additional Definitions
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Exhibits:“A”
– Plan showing Premises
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“B”
– Building Rules
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“C”
– Estoppel Certificate Form
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“D”
– Cleaning
Schedule
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2. Premises. Landlord
leases to Tenant and Tenant leases from Landlord the Premises, together with the
right in common with others to use the Common Areas. Tenant accepts
the Premises, Building and Common Areas “AS IS”, without relying on any
representation, covenant or warranty by Landlord other than as expressly set
forth in this Lease. Landlord and Tenant (a) acknowledge that
all square foot measurements are approximate and (b) stipulate and agree to
the rentable square footages set forth in Sections 1(a) and (b) above for
all purposes with respect to this Lease.
3. Use. Tenant shall
occupy and use the Premises only for the Use specified in Section l
above. Tenant shall not permit any conduct or condition which may
endanger, disturb or otherwise interfere with any other Building occupant’s
normal operations or with the management of the Building. Tenant may
use all Common Areas only for their intended purposes. Landlord shall
have exclusive control of all Common Areas at all times.
4. Term;
Possession. The Term
of this Lease shall commence on the Commencement Date and shall end on the
Expiration Date, unless sooner terminated in accordance with this
Lease. If Landlord is delayed in delivering possession of all or any
portion of the Premises to Tenant as of the Commencement Date, Tenant will take
possession on the date Landlord delivers possession, which date will then become
the Commencement Date (and the Expiration Date will be extended so that the
length of the Term remains unaffected by such delay). Landlord
shall not be liable for any loss or damage to Tenant resulting from any delay in
delivering possession due to the holdover of any existing tenant or other
circumstances outside of Landlord’s reasonable control.
5. Rent;
Taxes. Tenant
agrees to pay to Landlord, without demand, deduction or offset, Minimum Annual
Rent and Annual Operating Expenses for the Term. Tenant shall pay the
Monthly Rent, in advance, on the first day of each calendar month during the
Term, at Landlord’s address designated in Section 1 above unless Landlord
designates otherwise; provided that Monthly Rent for the third full month shall
be paid at the signing of this Lease. If the Commencement Date is not
the first day of the month, the Monthly Rent for that partial month shall be
apportioned on a per diem basis at the rate of $142.66 per day and shall be paid
on or before the Commencement Date. Tenant shall pay Landlord a
service and handling charge equal to 5% of any Rent not paid within 5 business
days after the date due. In addition, any Rent, including such
charge, not paid within 5 days after the due date will bear interest at the
Interest Rate from the date due to the date paid. Tenant shall pay
before delinquent all taxes levied or assessed upon, measured by, or arising
from: (a) the conduct of Tenant’s business; (b) Tenant’s leasehold estate; or
(c) Tenant’s property. Additionally, Tenant shall pay to Landlord all
sales, use, transaction privilege, or other excise tax that may at any time be
levied or imposed upon, or measured by, any amount payable by Tenant under this
Lease.
6. Operating
Expenses. The
amount of the Annual Operating Expenses set forth in Section 1(g) above
represents Tenant’s Share of the estimated Operating Expenses for the calendar
year in which the Term commences. Landlord may adjust such amount
from time to time if the estimated Annual Operating Expenses increase or
decrease; Landlord may also invoice Tenant separately from time to time for
Tenant’s Share of any extraordinary or unanticipated Operating
Expenses. By April 30th of each
year (and as soon as practical after the expiration or termination of this Lease
or, at Landlord’s option, after a sale of the Property), Landlord shall provide
Tenant with a statement of Operating Expenses for the preceding calendar year or
part thereof. Within 30 days after delivery of the statement to
Tenant, Landlord or Tenant shall pay to the other the amount of any overpayment
or deficiency then due from one to the other or, at Landlord’s option, Landlord
may credit Tenant’s account for any overpayment. If Tenant does not
give Landlord notice within 30 days after receiving Landlord’s statement that
Tenant disagrees with the statement and specifying the items and amounts in
dispute, Tenant shall be deemed to have waived the right to contest the
statement. Landlord’s and Tenant’s obligation to pay any overpayment
or deficiency due the other pursuant to this Section shall survive the
expiration or termination of this Lease. Notwithstanding any other
provision of this Lease to the contrary, Landlord may, in its reasonable
discretion, determine from time to time the method of computing and allocating
Operating Expenses, including the method of allocating Operating Expenses to
various types of space within the Building to reflect any disparate levels of
services provided to different types of space. If the Building is not
fully occupied during any period, Landlord may make a reasonable adjustment
based on occupancy in computing the Operating Expenses for such period so that
Operating Expenses are computed as though the Building had been fully
occupied. The Building is intended to be part of a multi-building
development on the Property and adjacent properties (the
“Development”). Landlord may, at its option, treat the entire
Development, or any portion thereof, as a single unified project for purposes of
determining and allocating certain Operating Expenses that relate to the entire
Development, such as real estate taxes. In such event, such Operating
Expenses as Landlord elects to allocate based on the entire Development shall
include the aggregate amount thereof for all buildings on the Property and
adjacent properties and their attendant common areas included in the unified
project, and Tenant’s Share with respect to such Operating Expenses shall be
equal to a fraction, the numerator of which is the number of rentable square
feet of the Premises and the denominator of which is the number of rentable
square feet of all buildings on the Property and adjacent
properties.
7. Services.
Landlord
will furnish the following services for the normal use and occupancy of the
Premises for general office purposes: (i) electricity,
(ii) heating and air conditioning in season during Normal Business Hours,
(iii) water, (iv) trash removal and janitorial services pursuant to
the cleaning schedule attached as Exhibit “D”, and (v) such
other services Landlord reasonably determines are appropriate or
necessary. If Tenant requests, and if Landlord is able to furnish,
services in addition to those identified above, including heating or air
conditioning outside of Normal Business Hours, Tenant shall pay Landlord’s
reasonable charge for such supplemental services. If because of
Tenant’s density, equipment or other Tenant circumstances, Tenant
puts demands on the Building Systems in excess of those of the typical office
user in the Building, Landlord may install supplemental equipment and meters at
Tenant’s expense. Landlord shall not be responsible or liable for any
interruption in such services, nor shall such interruption affect the
continuation or validity of this Lease. Notwithstanding the
foregoing, in the event that any utility service is not delivered for a period
in excess of five (5) consecutive business days solely as a result of the
negligence or willful misconduct of Landlord, and if Tenant is unable to
reasonably use the Premises for the conduct of its business by reason thereof,
Rent shall thereafter ▇▇▇▇▇ until the interrupted service is restored or Tenant
conducts or is able to reasonably conduct business in the
Premises. Landlord shall have the exclusive right to select, and to
change, the companies providing such services to the Building or
Premises. Any wiring, cabling or other equipment necessary to connect
Tenant’s telecommunications equipment shall be Tenant’s responsibility, and
shall be installed in a manner approved by Landlord. In the
event Tenant’s consumption of any utility or other service included in Operating
Expenses is excessive when compared with other occupants of the Property,
Landlord may invoice Tenant separately for, and Tenant shall pay on demand, the
cost of Tenant’s excessive consumption, as reasonably determined by
Landlord.
8. Insurance;
Waivers; Indemnification.
(a) Landlord
shall maintain insurance against loss or damage to the Building or the Property
with coverage for perils as set forth under the “Causes of Loss-Special Form” or
equivalent property insurance policy in an amount equal to the full insurable
replacement cost of the Building (excluding coverage of Tenant’s personal
property and any Alterations by Tenant), and such other insurance, including
rent loss coverage, as Landlord may reasonably deem appropriate or as any
Mortgagee may require.
(b) Tenant,
at its expense, shall keep in effect commercial general liability insurance,
including blanket contractual liability insurance, covering Tenant’s use of the
Property, with such coverages and limits of liability as Landlord may reasonably
require, but not less than a $1,000,000 combined single limit with a $3,000,000
general aggregate limit (which general aggregate limit may be satisfied by an
umbrella liability policy) for bodily injury or property damage; however, such
limits shall not limit Tenant’s liability hereunder. The policy shall
name Landlord, Liberty Property Trust and any other associated or affiliated
entity as their interests may appear and at Landlord’s request, any
Mortgagee(s), as additional insureds, shall be written on an “occurrence” basis
and not on a “claims made” basis and shall be endorsed to provide that it is
primary to and not contributory to any policies carried by Landlord and to
provide that it shall not be cancelable or reduced without at least 30 days
prior notice to Landlord. The insurer shall be authorized to issue
such insurance, licensed to do business and admitted in the state in which the
Property is located and rated at least A VII in the most current edition of
Best’s Insurance
Reports. Tenant shall deliver to Landlord on or before the
Commencement Date or any earlier date on which Tenant accesses the Premises, and
at least 30 days prior to the date of each policy renewal, a certificate of
insurance evidencing such coverage.
(c) Landlord
and Tenant each waive, and release each other from and against, all claims for
recovery against the other for any loss or damage to the property of such party
arising out of fire or other casualty coverable by a standard “Causes of
Loss-Special Form” property insurance policy with, in the case of
Tenant, such endorsements and additional coverages as are considered good
business practice in Tenant’s business, even if such loss or damage
shall be brought about by the fault or negligence of the other party or its
Agents; provided, however, such waiver by Landlord shall not be effective with
respect to Tenant’s liability described in Sections 9(b) and 10(d)
below. This waiver and release is effective regardless of whether the
releasing party actually maintains the insurance described above in this
subsection and is not limited to the amount of insurance actually carried, or to
the actual proceeds received after a loss. Each party shall have its
insurance company that issues its property coverage waive any rights of
subrogation, and shall have the insurance company include an endorsement
acknowledging this waiver, if necessary. Tenant assumes all risk of
damage of Tenant’s property within the Property, including any loss or damage
caused by water leakage, fire, windstorm, explosion, theft, act of any other
tenant, or other cause.
(d) Tenant
shall not be permitted to satisfy any of its insurance obligations set forth in
this Lease through any self-insurance or self-insured retention in excess of
$25,000.
(e) Subject
to subsection (c) above, and except to the extent caused by the negligence or
willful misconduct of Landlord or its Agents, Tenant will indemnify, defend, and
hold harmless Landlord and its Agents from and against any and all claims,
actions, damages, liability and expense (including reasonable fees of attorneys,
investigators and experts) which may be asserted against, imposed upon, or
incurred by Landlord or its Agents and arising out of or in connection with loss
of life, personal injury or damage to property in or about the Premises or
arising out of the occupancy or use of the Property by Tenant or its Agents or
occasioned wholly or in part by any act or omission of Tenant or its Agents,
whether prior to, during or after the Term. Tenant’s obligations
pursuant to this subsection shall survive the expiration or termination of this
Lease.
9. Maintenance
and Repairs.
(a) Landlord
shall Maintain the Building, including the Premises, the Common Areas, the
Building Systems and any other improvements owned by Landlord located on the
Property. If Tenant becomes aware of any condition that is Landlord’s
responsibility to repair, Tenant shall promptly notify Landlord of the
condition.
(b) Tenant
at its sole expense shall keep the Premises in a neat and orderly
condition. Alterations, repairs and replacements to the Property,
including the Premises, made necessary because of Tenant’s Alterations or
installations, any use or circumstances special or particular to Tenant, or any
act or omission of Tenant or its Agents shall be made at the sole expense of
Tenant to the extent not covered by any applicable insurance proceeds paid to
Landlord.
10. Compliance.
(a) Tenant
will, at its expense, promptly comply with all Laws now or subsequently
pertaining to the Premises or Tenant’s use or occupancy. Tenant will
pay any taxes or other charges by any authority on Tenant’s property or trade
fixtures or relating to Tenant’s use of the Premises. Neither Tenant
nor its Agents shall use the Premises in any manner that under any Law would
require Landlord to make any Alteration to or in the Building or Common
Areas (without
limiting the foregoing, Tenant shall not use the Premises in any manner that
would cause the Premises or the Property to be deemed a “place of public
accommodation” under the ADA if such use would require any such
Alteration). Tenant shall be responsible for compliance with the ADA,
and any other Laws regarding accessibility, with respect to the
Premises.
(b) Tenant
will comply, and will cause its Agents to comply, with the Building
Rules.
(c) Tenant
agrees not to do anything or fail to do anything which will increase the cost of
Landlord’s insurance or which will prevent Landlord from procuring policies
(including public liability) from companies and in a form satisfactory to
Landlord. If any breach of the preceding sentence by Tenant causes
the rate of fire or other insurance to be increased, Tenant shall pay the amount
of such increase as additional Rent within 30 days after being
billed.
(d) Tenant
agrees that (i) no activity will be conducted on the Premises that will use
or produce any Hazardous Materials, except for activities which are part of the
ordinary course of Tenant’s business and are conducted in accordance with all
Environmental Laws (“Permitted Activities”); (ii) the Premises will not be used
for storage of any Hazardous Materials, except for materials used in the
Permitted Activities which are properly stored in a manner and location
complying with all Environmental Laws; (iii) no portion of the Premises or
Property will be used by Tenant or Tenant’s Agents for disposal of Hazardous
Materials; (iv) Tenant will deliver to Landlord copies of all Material Safety
Data Sheets and other written information prepared by manufacturers, importers
or suppliers of any chemical; and (v) Tenant will immediately notify Landlord of
any violation by Tenant or Tenant’s Agents of any Environmental Laws or the
release or suspected release of Hazardous Materials in, under or about the
Premises, and Tenant shall immediately deliver to Landlord a copy of any notice,
filing or permit sent or received by Tenant with respect to the
foregoing. If at any time during or after the Term, any portion of
the Property is found to be contaminated by Tenant or Tenant’s Agents or subject
to conditions prohibited in this Lease caused by Tenant or Tenant’s Agents,
Tenant will indemnify, defend and hold Landlord harmless from all claims,
demands, actions, liabilities, costs, expenses, reasonable attorneys’ fees,
damages and obligations of any nature arising from or as a result thereof, and
Landlord shall have the right to direct remediation activities, all of which
shall be performed at Tenant’s cost. Tenant’s obligations pursuant to
this subsection shall survive the expiration or termination of this
Lease.
(e) Tenant
shall furnish Landlord, upon request, with such information relating to Tenant’s
operations at the Premises as necessary for Landlord to comply with the New
Jersey Industrial Site Recovery Act, N.J. Stat. ▇▇▇. 13:1K-6 et seq. and other
federal and state environmental laws, regulations and ordinances, including
without limitation, affidavits to be submitted to the New Jersey Department of
Environmental Protection in connection with requests for letters of
non-applicability and negative declarations. Tenant’s obligations
hereunder shall survive the termination of this Lease.
11. Signs.
Landlord
will furnish Tenant building standard identification signage on the interior
Building directory, if applicable, and on or beside the main entrance door to
the Premises. Tenant shall not place any signs on the Property
without the prior consent of Landlord, other than signs that are located wholly
within the interior of the Premises and not visible from the exterior of the
Premises. Tenant shall maintain all signs installed by Tenant in good
condition. Tenant shall remove its signs at the termination of this Lease, shall
repair any resulting damage, and shall restore the Property to its condition
existing prior to the installation of Tenant’s signs.
12. Alterations.
Except
for non-structural Alterations that (i) do not exceed $5,000 in the aggregate,
(ii) are not visible from the exterior of the Premises, (iii) do not affect any
Building System or the structural strength of the Building, (iv) do not require
penetrations into the floor, ceiling or walls, and (v) do not require work
within the walls, below the floor or above the ceiling, Tenant shall not make or
permit any Alterations in or to the Premises without first obtaining Landlord’s
consent, which consent shall not be unreasonably withheld. With
respect to any Alterations made by or on behalf of Tenant (whether or not the
Alteration requires Landlord’s consent): (i) not less than 10 days prior to
commencing any Alteration, Tenant shall deliver to Landlord the plans,
specifications and necessary permits for the Alteration, together with
certificates evidencing that Tenant’s contractors and subcontractors have
adequate insurance coverage naming Landlord, Liberty Property Trust and any
other associated or affiliated entity as their interests may appear as
additional insureds, (ii) Tenant shall obtain Landlord’s prior written approval
of any contractor or subcontractor, (iii) the Alteration shall be constructed
with new materials, in a good and workmanlike manner, and in compliance with all
Laws and the plans and specifications delivered to, and, if required above,
approved by Landlord, (iv) Tenant shall pay Landlord all reasonable costs and
expenses in connection with Landlord’s review of Tenant’s plans and
specifications, and of any supervision or inspection of the construction
Landlord deems necessary, and (v) upon Landlord’s request Tenant shall, prior to
commencing any Alteration, provide Landlord reasonable security against liens
arising out of such construction. Any Alteration by Tenant shall be
the property of Tenant until the expiration or termination of this Lease; at
that time without payment by Landlord the Alteration shall remain on the
Property and become the property of Landlord unless Landlord gives notice to
Tenant to remove it, in which event Tenant will remove it, will repair any
resulting damage and will restore the Premises to the condition existing prior
to Tenant’s Alteration. At Tenant’s request prior to Tenant making
any Alterations, Landlord will notify Tenant whether Tenant is required to
remove the Alterations at the expiration or termination of this
Lease. Tenant may install its trade fixtures, furniture and equipment
in the Premises, provided that the installation and removal of them will not
affect any structural portion of the Property, any Building System or any other
equipment or facilities serving the Building or any occupant.
13. Mechanics’
Liens. Tenant
promptly shall pay for any labor, services, materials, supplies or equipment
furnished to Tenant in or about the Premises. Tenant shall keep the
Premises and the Property free from any liens arising out of any labor,
services, materials, supplies or equipment furnished or alleged to have been
furnished to Tenant. Tenant shall take all steps permitted by law in
order to avoid the imposition of any such lien. Should any such
lien or notice of such lien be filed against the Premises or the Property in
connection with any work or service done by or for the benefit of Tenant, Tenant
shall discharge the same by bonding or otherwise within 15 days after Tenant has
notice that the lien or claim is filed regardless of the validity of such lien
or claim.
14. Landlord’s
Right to Relocate Tenant; Right of Entry.
(a) Not
more often than once during the Term, Landlord may relocate Tenant from the
Premises to comparable space in the Building as reasonably determined by
Landlord; provided that Landlord shall in no event increase the Minimum Annual
Rent or other sums payable under this Lease unless Tenant shall consent in
writing to an expansion of the Premises in connection with such
relocation. The relocation space shall be comparable to the Premises
in all material respects, including without limitation, the
size. Landlord will give Tenant at least 60 days advance notice of
relocation and will pay for all reasonable costs of such relocation, including,
without limitation, reasonable and actual moving expenses, computer and
telephone re-wiring and installation, and cost of new stationery and business
cards. Such a relocation shall be
accomplished during a weekend, holiday period or evening(s) so as not to
unreasonably interfere with the conduct of Tenant’s
business. Such a relocation shall not terminate, modify or
otherwise affect this Lease except that “Premises” shall refer to the relocation
space rather than the old location identified in Section 1(a).
(b) Tenant
shall permit Landlord and its Agents to enter the Premises at all reasonable
times following reasonable notice (except in an emergency) to inspect, Maintain,
or make Alterations to the Premises or Property, to exhibit the Premises for the
purpose of sale or financing, and, during the last 12 months of the Term, to
exhibit the Premises to any prospective tenant. Landlord will make
reasonable efforts not to inconvenience Tenant in exercising such rights, but
Landlord shall not be liable for any interference with Tenant’s occupancy
resulting from Landlord’s entry.
15. Damage by
Fire or Other Casualty. If the
Premises or Common Areas shall be damaged or destroyed by fire or other
casualty, Tenant shall promptly notify Landlord, and Landlord, subject to the
conditions set forth in this Section, shall repair such damage and restore the
Premises or Common Areas to substantially the same condition in which they were
immediately prior to such damage or destruction, but not including the repair,
restoration or replacement of the fixtures, equipment, or Alterations installed
by or on behalf of Tenant. Landlord shall notify Tenant, within 30
days after the date of the casualty, if Landlord anticipates that the
restoration will take more than 180 days from the date of the casualty to
complete; in such event, either Landlord or Tenant (unless the damage was caused
by Tenant) may terminate this Lease effective as of the date of casualty by
giving notice to the other within 10 days after Landlord’s notice. If
a casualty occurs during the last 12 months of the Term, Landlord may terminate
this Lease unless Tenant has the right to extend the Term for at least 3 more
years and does so within 30 days after the date of the
casualty. Moreover, Landlord may terminate this Lease if the loss is
not covered by the insurance required to be maintained by Landlord under this
Lease. Tenant will receive an abatement of Minimum Annual Rent and
Annual Operating Expenses to the extent the Premises are rendered untenantable
as a result of the casualty.
16. Condemnation.
If
(a) all of the Premises are Taken, (b) any part of the Premises is
Taken and the remainder is insufficient in Landlord’s opinion for the reasonable
operation of Tenant’s business, or (c) any of the Property is Taken, and,
in Landlord’s opinion, it would be impractical or the condemnation proceeds are
insufficient to restore the remainder, then this Lease shall terminate as of the
date the condemning authority takes possession. If this Lease is not
terminated, Landlord shall restore the Building to a condition as near as
reasonably possible to the condition prior to the Taking, the Minimum Annual
Rent shall be abated for the period of time all or a part of the Premises is
untenantable in proportion to the square foot area untenantable, and this Lease
shall be amended appropriately. The compensation awarded for a Taking
shall belong to Landlord. Except for any relocation benefits to which
Tenant may be entitled, Tenant hereby assigns all claims against the condemning
authority to Landlord, including, but not limited to, any claim relating to
Tenant’s leasehold estate.
17. Quiet
Enjoyment. Landlord
covenants that Tenant, upon performing all of its covenants, agreements and
conditions of this Lease, shall have quiet and peaceful possession of the
Premises as against anyone claiming by or through Landlord, subject, however, to
the terms of this Lease.
18. Assignment
and Subletting.
(a) Except
as provided in Section (b) below, Tenant shall not enter into nor permit any
Transfer voluntarily or by operation of law, without the prior consent of
Landlord, which consent shall not be unreasonably withheld. Without
limitation, Tenant agrees that Landlord’s consent shall not be considered
unreasonably withheld if (i) the proposed transferee is an existing tenant of
Landlord or an affiliate of Landlord, (ii) the business, business reputation, or
creditworthiness of the proposed transferee is unacceptable to Landlord, (iii)
Landlord or an affiliate of Landlord has comparable space available for lease by
the proposed transferee in the Development, or (iv) Tenant is in default under
this Lease or any act or omission has occurred which would constitute a default
with the giving of notice and/or the passage of time. A consent to
one Transfer shall not be deemed to be a consent to any subsequent
Transfer. In no event shall any Transfer relieve Tenant from any
obligation under this Lease. Landlord’s acceptance of Rent from any
person shall not be deemed to be a waiver by Landlord of any provision of this
Lease or to be a consent to any Transfer. Any Transfer not in
conformity with this Section 18 shall be void at the option of
Landlord.
(b) Landlord’s
consent shall not be required in the event of any Transfer by Tenant to an
Affiliate provided that (i) the Affiliate has a tangible net worth at least
equal to that of Tenant as of the date of this Lease, (ii) Tenant provides
Landlord notice of the Transfer at least 15 days prior to the effective date,
together with current financial statements of the Affiliate certified by an
executive officer of the Affiliate, and (iii) in the case of an assignment or
sublease, Tenant delivers to Landlord an assumption agreement reasonably
acceptable to Landlord executed by Tenant and the Affiliate, together with a
certificate of insurance evidencing the Affiliate’s compliance with the
insurance requirements of Tenant under this Lease.
(c) The
provisions of subsection (a) above notwithstanding, if Tenant proposes to
Transfer all of the Premises (other than to an Affiliate), Landlord may
terminate this Lease, either conditioned on execution of a new lease between
Landlord and the proposed transferee or without that condition. If
Tenant proposes to enter into a Transfer of less than all of the Premises (other
than to an Affiliate), Landlord may amend this Lease to remove the portion of
the Premises to be transferred, either conditioned on execution of a new lease
between Landlord and the proposed transferee or without that
condition. If this Lease is not so terminated or amended, Tenant
shall pay to Landlord, immediately upon receipt, the excess of (i) all
compensation received by Tenant for the Transfer over (ii) the Rent
allocable to the Premises transferred.
(d) If
Tenant requests Landlord’s consent to a Transfer, Tenant shall provide Landlord,
at least 15 days prior to the proposed Transfer, current financial statements of
the transferee certified by an executive officer of the transferee, a complete
copy of the proposed Transfer documents, and any other information Landlord
reasonably requests. Immediately following any approved assignment or
sublease, Tenant shall deliver to Landlord an assumption agreement reasonably
acceptable to Landlord executed by Tenant and the transferee, together with a
certificate of insurance evidencing the transferee’s compliance with the
insurance requirements of Tenant under this Lease. Tenant agrees to
reimburse Landlord for reasonable administrative and attorneys’ fees in
connection with the processing and documentation of any Transfer for which
Landlord’s consent is requested.
19. Subordination;
Mortgagee’s Rights.
(a) Tenant
accepts this Lease subject and subordinate to any Mortgage now or in the future
affecting the Premises, provided that Tenant’s right of possession of the
Premises shall not be disturbed by the Mortgagee so long as Tenant is not in
default under this Lease. This clause shall be self-operative, but
within 10 days after request, Tenant shall execute and deliver any further
instruments confirming the subordination of this Lease and any further
instruments of attornment that the Mortgagee may reasonably
request. However, any Mortgagee may at any time subordinate its
Mortgage to this Lease, without Tenant’s consent, by giving notice to Tenant,
and this Lease shall then be deemed prior to such Mortgage without regard to
their respective dates of execution and delivery; provided that such
subordination shall not affect any Mortgagee’s rights with respect to
condemnation awards, casualty insurance proceeds, intervening liens or any right
which shall arise between the recording of such Mortgage and the execution of
this Lease.
(b) No
Mortgagee shall be (i) liable for any act or omission of a prior landlord, (ii)
subject to any rental offsets or defenses against a prior landlord, (iii) bound
by any amendment of this Lease made without its written consent, or (iv) bound
by payment of Monthly Rent more than one month in advance or liable for any
other funds paid by Tenant to Landlord unless such funds actually have been
transferred to the Mortgagee by Landlord.
(c) The
provisions of Sections 15 and 16 above notwithstanding, Landlord’s obligation to
restore the Premises after a casualty or condemnation shall be subject to the
consent and prior rights of any Mortgagee.
20. Tenant’s
Certificate; Financial Information. Within 10
days after Landlord’s request from time to time, (a) Tenant shall execute,
acknowledge and deliver to Landlord, for the benefit of Landlord, Mortgagee, any
prospective Mortgagee, and any prospective purchaser of Landlord’s interest in
the Property, an estoppel certificate in the form of attached Exhibit “C” (or other form
requested by Landlord), modified as necessary to accurately state the facts
represented, and (b) Tenant shall furnish to Landlord, Landlord’s Mortgagee,
prospective Mortgagee and/or prospective purchaser reasonably requested
financial information.
21. Surrender.
(a) On
the date on which this Lease expires or terminates, Tenant shall return
possession of the Premises to Landlord in good condition, except for ordinary
wear and tear, and except for casualty damage or other conditions that Tenant is
not required to remedy under this Lease. Prior to the expiration or
termination of this Lease, Tenant shall remove from the Property all furniture,
trade fixtures, equipment, wiring and cabling (unless Landlord directs Tenant
otherwise), and all other personal property installed by Tenant or its assignees
or subtenants. Tenant shall repair any damage resulting from such
removal and shall restore the Property to good order and
condition. Any of Tenant’s personal property not removed as required
shall be deemed abandoned, and Landlord, at Tenant’s expense, may remove, store,
sell or otherwise dispose of such property in such manner as Landlord may see
fit and/or Landlord may retain such property or sale proceeds as its
property. If Tenant does not return possession of the Premises to
Landlord in the condition required under this Lease, Tenant shall pay Landlord
all resulting damages Landlord may suffer.
(b) If
Tenant remains in possession of the Premises after the expiration or termination
of this Lease, Tenant’s occupancy of the Premises shall be that of a tenancy at
will. Tenant’s occupancy during any holdover period shall otherwise
be subject to the provisions of this Lease (unless clearly inapplicable), except
that the Monthly Rent shall be double the Monthly Rent payable for the last full
month immediately preceding the holdover. No holdover or payment by
Tenant after the expiration or termination of this Lease shall operate to extend
the Term or prevent Landlord from immediate recovery of possession of the
Premises by summary proceedings or otherwise. Any provision in this
Lease to the contrary notwithstanding, any holdover by Tenant shall constitute a
default on the part of Tenant under this Lease entitling Landlord to exercise,
without obligation to provide Tenant any notice or cure period, all of the
remedies available to Landlord in the event of a Tenant default, and Tenant
shall be liable for all damages, including consequential damages, that Landlord
suffers as a result of the holdover.
22. Defaults
- Remedies.
(a) It
shall be an Event of Default:
(i) If
Tenant does not pay in full when due any and all Rent and, except as provided in
Section 22(c) below, Tenant fails to cure such default on or before the date
that is 5 business days after Landlord gives Tenant notice of
default;
(ii) If
Tenant enters into or permits any Transfer in violation of Section 18
above;
(iii) If
Tenant fails to observe and perform or otherwise breaches any other provision of
this Lease, and, except as provided in Section 22(c) below, Tenant fails to cure
the default on or before the date that is 30 days after Landlord gives Tenant
notice of default; provided, however, if the default cannot reasonably be cured
within 30 days following Landlord’s giving of notice, Tenant shall be afforded
additional reasonable time (not to exceed 45 days following Landlord’s notice)
to cure the default if Tenant begins to cure the default within 30 days
following Landlord’s notice and continues diligently in good faith to completely
cure the default; or
(iv) If
Tenant becomes insolvent or makes a general assignment for the benefit of
creditors or offers a settlement to creditors, or if a petition in bankruptcy or
for reorganization or for an arrangement with creditors under any federal or
state law is filed by or against Tenant, or a ▇▇▇▇ in equity or other proceeding
for the appointment of a receiver for any of Tenant’s assets is commenced, or if
any of the real or personal property of Tenant shall be levied upon; provided
that any proceeding brought by anyone other than Landlord or Tenant under any
bankruptcy, insolvency, receivership or similar law shall not constitute an
Event of Default until such proceeding has continued unstayed for more than 60
consecutive days.
(b) If
an Event of Default occurs, Landlord shall have the following rights and
remedies:
(i)
Landlord, without any obligation to do so, may elect to cure the default on
behalf of Tenant, in which event Tenant shall reimburse Landlord upon demand for
any sums paid or costs incurred by Landlord (together with an administrative fee
of 15% thereof) in curing the default, plus interest at the Interest Rate from
the respective dates of Landlord’s incurring such costs, which sums and costs
together with interest at the Interest Rate shall be deemed additional
Rent;
(ii) To
enter and repossess the Premises lawfully, by breaking open locked doors if
necessary and lawful, and remove all
persons and all or any property, by action at law or otherwise in accordance with law, without being liable for
prosecution or damages. Landlord may, at Landlord’s option, make
Alterations and repairs in order to relet the Premises and relet all or any
part(s) of the Premises for Tenant’s account. Tenant agrees to pay to
Landlord on demand any deficiency (taking into account all costs incurred by
Landlord) that may arise by reason of such reletting. In the event of
reletting without termination of this Lease, Landlord may at any time thereafter
elect to terminate this Lease for such previous breach;
(iii) To
accelerate the whole or any part of the Rent for the balance of the Term, and
declare the same to be immediately due and payable;
(iv) To
terminate this Lease and the Term without any right on the part of Tenant to
save the forfeiture by payment of any sum due or by other performance of any
condition, term or covenant broken; and
(v) Notwithstanding
anything to the contrary in this Lease, Landlord shall use commercially
reasonable efforts to relet the Premises in order to mitigate its damages
hereunder, but Landlord shall not be required to prefer the Premises over other
space available for lease in the Building or in other buildings owned by
Landlord or its Affiliates in the southern New Jersey market area.
(c) Any
provision to the contrary in this Section 22 notwithstanding, (i) Landlord shall
not be required to give Tenant the notice and opportunity to cure provided in
Section 22(a) above more than twice in any consecutive 12-month period, and
thereafter Landlord may declare an Event of Default without affording Tenant any
of the notice and cure rights provided under this Lease, (ii) Landlord shall not
be required to give such notice prior to exercising its rights under
Section 22(b) if Tenant fails to comply with the provisions of Section 27
or in an emergency, and (iii) only a 5 day notice shall be required if Tenant
fails to comply with the provisions of Sections 13 or 20.
(d) No
waiver by Landlord of any breach by Tenant shall be a waiver of any subsequent
breach, nor shall any forbearance by Landlord to seek a remedy for any breach by
Tenant be a waiver by Landlord of any rights and remedies with respect to such
or any subsequent breach. Efforts by Landlord to mitigate the damages
caused by Tenant’s default shall not constitute a waiver of Landlord’s right to
recover damages hereunder. No right or remedy herein conferred upon
or reserved to Landlord is intended to be exclusive of any other right or remedy
provided herein or by law, but each shall be cumulative and in addition to every
other right or remedy given herein or now or hereafter existing at law or in
equity. No payment by Tenant or receipt or acceptance by Landlord of
a lesser amount than the total amount due Landlord under this Lease shall be
deemed to be other than on account, nor shall any endorsement or statement on
any check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord’s right to recover
the balance of Rent due, or Landlord’s right to pursue any other available
remedy.
(e) If
either party commences an action against the other party arising out of or in
connection with this Lease, the prevailing party shall be entitled to have and
recover from the other party attorneys’ fees, costs of suit, investigation
expenses and discovery costs, including costs of appeal.
(f)
Landlord and Tenant waive the right to a trial by jury in any action or
proceeding based upon or related to, the subject matter of this
Lease.
23. Tenant’s
Authority. Tenant
represents and warrants to Landlord that: (a) Tenant is duly formed,
validly existing and in good standing under the laws of the state under which
Tenant is organized, and qualified to do business in the state in which the
Property is located, and (b) the person(s) signing this Lease are duly
authorized to execute and deliver this Lease on behalf of Tenant.
24. Liability
of Landlord. The word
“Landlord” in this Lease
includes the Landlord executing this Lease as well as its successors and
assigns, each of which shall have the same rights, remedies, powers, authorities
and privileges as it would have had it originally signed this Lease as
Landlord. Any such person or entity, whether or not named in this
Lease, shall have no liability under this Lease after it ceases to hold title to
the Premises except for obligations already accrued (and, as to any unapplied
portion of Tenant’s Security Deposit, Landlord shall be relieved of all
liability upon transfer of such portion to its successor in
interest). Tenant shall look solely to Landlord’s successor in
interest for the performance of the covenants and obligations of the Landlord
hereunder which subsequently accrue. Landlord shall not be deemed to
be in default under this Lease unless Tenant gives Landlord notice specifying
the default and Landlord fails to cure the default within a reasonable period
following Tenant’s notice. In no event shall Landlord be liable to
Tenant for any loss of business or profits of Tenant or for consequential,
punitive or special damages of any kind. Neither Landlord nor any
principal of Landlord nor any owner of the Property, whether disclosed or
undisclosed, shall have any personal liability with respect to any of the
provisions of this Lease or the Premises; Tenant shall look solely to the equity
of Landlord in the Property (including, without limitation, rents, condemnation
awards, insurance and sale proceeds) for the satisfaction of any claim by Tenant
against Landlord.
25. Miscellaneous.
(a) The
captions in this Lease are for convenience only, are not a part of this Lease
and do not in any way define, limit, describe or amplify the terms of this
Lease.
(b) This
Lease represents the entire agreement between the parties hereto and there are
no collateral or oral agreements or understandings between Landlord and Tenant
with respect to the Premises or the Property. No rights, easements or
licenses are acquired in the Property or any land adjacent to the Property by
Tenant by implication or otherwise except as expressly set forth in this
Lease. This Lease shall not be modified in any manner except by an
instrument in writing executed by the parties. The masculine (or
neuter) pronoun and the singular number shall include the masculine, feminine
and neuter genders and the singular and plural number. The word
“including” followed by any specific item(s) is deemed to refer to examples
rather than to be words of limitation. The word “person” includes a
natural person, a partnership, a corporation, a limited liability company, an
association and any other form of business association or
entity. Both parties having participated fully and equally in the
negotiation and preparation of this Lease, this Lease shall not be more strictly
construed, nor any ambiguities in this Lease resolved, against either Landlord
or Tenant.
(c) Each
covenant, agreement, obligation, term, condition or other provision contained in
this Lease shall be deemed and construed as a separate and independent covenant
of the party bound by, undertaking or making the same, not dependent on any
other provision of this Lease unless otherwise expressly
provided. All of the terms and conditions set forth in this Lease
shall apply throughout the Term unless otherwise expressly set forth
herein.
(d) If
any provisions of this Lease shall be declared unenforceable in any respect,
such unenforceability shall not affect any other provision of this Lease, and
each such provision shall be deemed to be modified, if possible, in such a
manner as to render it enforceable and to preserve to the extent possible the
intent of the parties as set forth herein. This Lease shall be
construed and enforced in accordance with the laws of the State of New
Jersey.
(e) This
Lease shall be binding upon and inure to the benefit of Landlord and Tenant and
their respective heirs, personal representatives and permitted successors and
assigns. All persons liable for the obligations of Tenant under this
Lease shall be jointly and severally liable for such obligations.
(f) Tenant
shall not record this Lease or any memorandum without Landlord’s prior
consent.
26. Notices.
Any
notice, consent or other communication under this Lease shall be in writing and
addressed to Landlord or Tenant at their respective addresses specified in
Section 1 above (or to such other address as either may designate by notice to
the other) with a copy to any Mortgagee or other party designated by
Landlord. Each notice or other communication shall be deemed given if
sent by prepaid overnight delivery service or by certified mail, return receipt
requested, postage prepaid or in any other manner, with delivery in any case
evidenced by a receipt, and shall be deemed to have been given on the day of
actual delivery to the intended recipient or on the business day delivery is
refused. The giving of notice by Landlord’s attorneys,
representatives and agents under this Section shall be deemed to be the acts of
Landlord.
27. Security
Deposit. At the
time of signing this Lease, Tenant shall deposit with Landlord the Security
Deposit to be retained by Landlord as cash security for the faithful performance
and observance by Tenant of the provisions of this Lease. Tenant
shall not be entitled to any interest on the Security
Deposit. Landlord shall have the right to commingle the Security
Deposit with its other funds. Landlord may use the whole or any part
of the Security Deposit for the payment of any amount as to which Tenant is in
default or to compensate Landlord for any loss or damage it may suffer by reason
of Tenant’s default under this Lease. If Landlord uses all or any
portion of the Security Deposit as herein provided, within 10 days after demand,
Tenant shall pay Landlord cash in an amount equal to that portion of the
Security Deposit used by Landlord. If Tenant complies fully and
faithfully with all of the provisions of this Lease, the Security Deposit shall
be returned to Tenant after the Expiration Date and surrender of the Premises to
Landlord.
28. No
Improvements by Landlord. The Premises shall be delivered by
Landlord and accepted by Tenant broom clean in “as is” “where is” condition and
Landlord shall have no obligations whatsoever to improve or pay to improve the
Premises for Tenant’s use or occupancy, except that Landlord shall, at
Landlord’s sole expense, using Building standard materials, paint the existing,
interior walls of the second office on the left past the conference room of the
Premises.
29. Brokers. Tenant
agrees that it has dealt with no brokers in connection with this Lease, except
for CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc., whose commission shall be paid by Landlord pursuant
to separate agreement. Tenant agrees to indemnify and hold Landlord
harmless from any and all claims for commissions or fees in connection with the
Premises and this Lease from any other real estate brokers or agents with whom
Tenant may have dealt.
Landlord
and Tenant have executed this Lease on the respective date(s) set forth
below.
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Landlord:
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LIBERTY
PROPERTY LIMITED PARTNERSHIP
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By:Liberty
Property Trust, Sole General Partner
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Date
signed:
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By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
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Title:
Senior Vice President, Regional Director
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Date
signed:
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Tenant:
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Attest/Witness:
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By:
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Name:
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Name:
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Title:
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Title:
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Rider 1 to Lease
Agreement
(Multi-Tenant
Office)
ADDITIONAL
DEFINITIONS
“ADA”
means the Americans With Disabilities Act of 1990 (42 U.S.C. § 1201 et
seq.), as amended and supplemented from time to time.
“Affiliate”
means (i) any entity controlling, controlled by, or under common control
of, Tenant, (ii) any successor to Tenant by merger, consolidation or
reorganization, and (iii) any purchaser of all or substantially all of the
assets of Tenant as a going concern.
“Agents”
of a party means such party’s employees, agents, representatives, contractors,
licensees or invitees.
“Alteration”
means any addition, alteration or improvement to the Premises or Property, as
the case may be.
“Building
Rules” means the rules and regulations attached to this Lease as Exhibit “B” as they may be
amended from time to time.
“Building
Systems” means any electrical, mechanical, structural, plumbing, heating,
ventilating, air conditioning, sprinkler, life safety or security systems
serving the Building.
“Common
Areas” means all areas and facilities as provided by Landlord from time to time
for the use or enjoyment of all tenants in the Building or Property, including,
if applicable, lobbies, hallways, restrooms, elevators, driveways, sidewalks,
parking, loading and landscaped areas.
“Environmental
Laws” means all present or future federal, state or local laws, ordinances,
rules or regulations (including the rules and regulations of the federal
Environmental Protection Agency and comparable state agency) relating to the
protection of human health or the environment.
“Event of
Default” means a default described in Section 22(a) of this Lease.
“Hazardous
Materials” means pollutants, contaminants, toxic or hazardous wastes or other
materials the removal of which is required or the use of which is regulated,
restricted, or prohibited by any Environmental Law.
“Interest
Rate” means interest at the rate of 1 ½% per month.
“Land”
means the lot or plot of land on which the Building is situated or the portion
thereof allocated by Landlord to the Building.
“Laws”
means all laws, ordinances, rules, orders, regulations, guidelines and other
requirements of federal, state or local governmental authorities or of any
private association or contained in any restrictive covenants or other
declarations or agreements, now or subsequently pertaining to the Property or
the use and occupation of the Property.
“Lease
Year” means the period from the Commencement Date through the succeeding 12 full
calendar months (including for the first Lease Year any partial month from the
Commencement Date until the first day of the first full calendar month) and each
successive 12-month period thereafter during the Term.
“Maintain”
means to provide such maintenance, repair and, to the extent necessary and
appropriate, replacement, as may be needed to keep the subject property in good
condition and repair.
“Monthly
Rent” means the monthly installment of Minimum Annual Rent plus the monthly
installment of estimated Annual Operating Expenses payable by Tenant under this
Lease.
“Mortgage”
means any mortgage, deed of trust or other lien or encumbrance on Landlord’s
interest in the Property or any portion thereof, including without limitation
any ground or master lease if Landlord’s interest is or becomes a leasehold
estate.
“Mortgagee”
means the holder of any Mortgage, including any ground or master lessor if
Landlord’s interest is or becomes a leasehold estate.
“Normal
Business Hours” means 8:00 a.m. to 6:00 p.m., Monday through Friday, legal
holidays excepted.
“Operating
Expenses” means all costs, fees, charges and expenses incurred or charged by
Landlord in connection with the ownership, operation, maintenance and repair of,
and services provided to, the Property, including, but not limited to, (i) the
charges at standard retail rates for any services provided by Landlord pursuant
to Section 7 of this Lease, (ii) the cost of insurance carried by Landlord
pursuant to Section 8 of this Lease together with the cost of any deductible
paid by Landlord in connection with an insured loss, (iii) Landlord’s cost
to Maintain the Property pursuant to Section 9 of this Lease, (iv) the cost of
trash collection, (v) to the extent not otherwise payable by Tenant pursuant to
Section 5 of this Lease, all levies, taxes (including real estate taxes, sales
taxes and gross receipt taxes), assessments, liens, license and permit fees,
together with the reasonable cost of contesting any of the foregoing, which are
applicable to the Term, and which are imposed by any authority or under any Law,
or pursuant to any recorded covenants or agreements, upon or with respect to the
Property, or any improvements thereto, or directly upon this Lease or the Rent
or upon amounts payable by any subtenants or other occupants of the Premises, or
against Landlord because of Landlord’s estate or interest in the Property,
(vi) the annual amortization (over their estimated economic useful life or
payback period, whichever is shorter) of the costs (including reasonable
financing charges) of capital improvements or replacements (a) required by
any Laws, (b) made for the purpose of reducing Operating Expenses, or
(c) made for the purpose of directly enhancing the safety of tenants in the
Building, and (vii) a management and administrative
fee. The foregoing notwithstanding, Operating Expenses will not
include: (i) depreciation on the Building, (ii) financing and
refinancing costs (except as provided above), interest on debt or amortization
payments on any mortgage, or rental under any ground or underlying lease, (iii)
leasing commissions, advertising expenses, tenant improvements or other costs
directly related to the leasing of the Property, or (iv) income, excess profits
or corporate capital stock tax imposed or assessed upon Landlord, unless such
tax or any similar tax is levied or assessed in lieu of all or any part of any
taxes includable in Operating Expenses above. If Landlord elects to
prepay real estate taxes during any discount period, Landlord shall be entitled
to the benefit of any such prepayment. Landlord shall have the right
to directly perform (by itself or through an affiliate) any services provided
under this Lease provided that the Landlord’s charges included in Operating
Expenses for any such services shall not exceed competitive market rates for
comparable services.
“Property”
means the Land, the Building, the Common Areas, and all appurtenances to
them.
“Rent”
means the Minimum Annual Rent, Annual Operating Expenses and any other amounts
payable by Tenant to Landlord under this Lease.
“Taken”
or “Taking” means acquisition by a public authority having the power of eminent
domain by condemnation or conveyance in lieu of condemnation.
“Tenant’s
Share” means the percentage obtained by dividing the rentable square feet of the
Premises by the rentable square feet of the Building, as set forth in Section 1
of this Lease.
“Transfer”
means (i) any assignment, transfer, pledge or other encumbrance of all or a
portion of Tenant’s interest in this Lease, (ii) any sublease, license or
concession of all or a portion of Tenant’s interest in the Premises, or (iii)
any transfer of a controlling interest in Tenant.
EXHIBIT
“A”
PLAN SHOWING
PREMISES
EXHIBIT
“B”
BUILDING
RULES
1. Any
sidewalks, lobbies, passages, elevators and stairways shall not be obstructed or
used by Tenant for any purpose other than ingress and egress from and to the
Premises. Landlord shall in all cases retain the right to control or
prevent access by all persons whose presence, in the judgment of Landlord, shall
be prejudicial to the safety, peace or character of the Property.
2. The
toilet rooms, toilets, urinals, sinks, faucets, plumbing or other service
apparatus of any kind shall not be used for any purposes other than those for
which they were installed, and no sweepings, rubbish, rags, ashes, chemicals or
other refuse or injurious substances shall be placed therein or used in
connection therewith or left in any lobbies, passages, elevators or
stairways.
3. Tenant
shall not impair in any way the fire safety system and shall comply with all
security, safety, fire protection and evacuation procedures and regulations
established by Landlord or any governmental agency. No person shall
go on the roof without Landlord’s prior written permission.
4. Skylights,
windows, doors and transoms shall not be covered or obstructed by Tenant, and
Tenant shall not install any window covering which would affect the exterior
appearance of the Building, except as approved in writing by
Landlord. Tenant shall not remove, without Landlord’s prior written
consent, any shades, blinds or curtains in the Premises.
5. Without
Landlord’s prior written consent, Tenant shall not hang, install, mount, suspend
or attach anything from or to any sprinkler, plumbing, utility or other
lines. If Tenant hangs, installs, mounts, suspends or attaches
anything from or to any doors, windows, walls, floors or ceilings, Tenant shall
spackle and sand all holes and repair any damage caused thereby or by the
removal thereof at or prior to the expiration or termination of the
Lease.
6. Tenant
shall not change any locks nor place additional locks upon any
doors.
7. Tenant
shall not use nor keep in the Building any matter having an offensive odor, nor
explosive or highly flammable material, nor shall any animals other than
handicap assistance dogs in the company of their masters be brought into or kept
in or about the Property.
8. If
Tenant desires to introduce electrical, signaling, telegraphic, telephonic,
protective alarm or other wires, apparatus or devices, Landlord shall direct
where and how the same are to be placed, and except as so directed, no
installation boring or cutting shall be permitted. Landlord shall
have the right to prevent and to cut off the transmission of excessive or
dangerous current of electricity or annoyances into or through the Building or
the Premises and to require the changing of wiring connections or layout at
Tenant’s expense, to the extent that Landlord may deem necessary, and further to
require compliance with such reasonable rules as Landlord may establish relating
thereto, and in the event of non-compliance with the requirements or rules,
Landlord shall have the right immediately to cut wiring or to do what it
considers necessary to remove the danger, annoyance or electrical interference
with apparatus in any part of the Building. All wires installed by
Tenant must be clearly tagged at the distributing boards and junction boxes and
elsewhere where required by Landlord, with the number of the office to which
said wires lead, and the purpose for which the wires respectively are used,
together with the name of the concern, if any, operating same. No
machinery of any kind other than customary small business machines shall be
allowed in the Premises. Tenant shall not use any method of heating,
air conditioning or air cooling other than that provided by
Landlord.
9. Tenant
shall not place weights anywhere beyond the safe carrying capacity of the
Building which is designed to normal office building standards for floor loading
capacity. Landlord shall have the right to exclude from the Building
heavy furniture, safes and other articles which may be hazardous or to require
them to be located at designated places in the Premises.
10. The
use of rooms as sleeping quarters is strictly prohibited at all
times.
11. Tenant
shall have the right, at Tenant’s sole risk and responsibility, to use only
Tenant’s Share of the parking spaces at the Property as reasonably determined by
Landlord. Tenant shall comply with all parking regulations
promulgated by Landlord from time to time for the orderly use of the vehicle
parking areas, including without limitation the following: Parking shall be
limited to automobiles, passenger or equivalent vans, motorcycles, light four
wheel pickup trucks and (in designated areas) bicycles. No vehicles
shall be left in the parking lot overnight without Landlord’s prior written
approval. Parked vehicles shall not be used for vending or any other
business or other activity while parked in the parking
areas. Vehicles shall be parked only in striped parking spaces,
except for loading and unloading, which shall occur solely in zones marked for
such purpose, and be so conducted as to not unreasonably interfere with traffic
flow within the Property or with loading and unloading areas of other
tenants. Employee and tenant vehicles shall not be parked in spaces
marked for visitor parking or other specific use. All vehicles
entering or parking in the parking areas shall do so at owner’s sole risk and
Landlord assumes no responsibility for any damage, destruction, vandalism or
theft. Tenant shall cooperate with Landlord in any measures
implemented by Landlord to control abuse of the parking areas, including without
limitation access control programs, tenant and guest vehicle identification
programs, and validated parking programs, provided that no such validated
parking program shall result in Tenant being charged for spaces to which it has
a right to free use under its Lease. Each vehicle owner shall
promptly respond to any sounding vehicle alarm or horn, and failure to do so may
result in temporary or permanent exclusion of such vehicle from the parking
areas. Any vehicle which violates the parking regulations may be
cited, towed at the expense of the owner, temporarily or permanently excluded
from the parking areas, or subject to other lawful
consequence. Bicycles are not permitted in the Building.
12. Tenant
and its Agents shall not smoke in the Building or at the Building entrances and
exits.
13. Tenant
shall provide Landlord with a written identification of any vendors engaged by
Tenant to perform services for Tenant at the Premises (examples: security
guards/monitors, telecommunications installers/maintenance), and all vendors
shall be subject to Landlord’s reasonable approval. No mechanics
shall be allowed to work on the Building or Building Systems other than those
engaged by Landlord. Tenant shall permit Landlord’s employees and
contractors and no one else to clean the Premises unless Landlord consents in
writing. Tenant assumes all responsibility for protecting its
Premises from theft and vandalism and Tenant shall see each day before leaving
the Premises that all lights are turned out and that the windows and the doors
are closed and securely locked.
14. Tenant
shall comply with any move-in/move-out rules provided by Landlord and with any
rules provided by Landlord governing access to the Building outside of Normal
Business Hours. Throughout the Term, no furniture, packages,
equipment, supplies or merchandise of Tenant will be received in the Building,
or carried up or down in the elevators or stairways, except during such hours as
shall be designated by Landlord, and Landlord in all cases shall also have the
exclusive right to prescribe the method and manner in which the same shall be
brought in or taken out of the Building.
15. Tenant
shall not place oversized cartons, crates or boxes in any area for trash pickup
without Landlord’s prior approval. Landlord shall be responsible for
trash pickup of normal office refuse placed in ordinary office trash receptacles
only. Excessive amounts of trash or other out-of-the-ordinary refuse
loads will be removed by Landlord upon request at Tenant’s expense.
16. Tenant
shall cause all of Tenant’s Agents to comply with these Building
Rules.
17. Landlord
reserves the right to rescind, suspend or modify any rules or regulations and to
make such other rules and regulations as, in Landlord’s reasonable judgment, may
from time to time be needed for the safety, care, maintenance, operation and
cleanliness of the Property. Notice of any action by Landlord
referred to in this section, given to Tenant, shall have the same force and
effect as if originally made a part of the foregoing Lease. New rules
or regulations will not, however, be unreasonably inconsistent with the proper
and rightful enjoyment of the Premises by Tenant under the Lease.
18. These
Building Rules are not intended to give Tenant any rights or claims in the event
that Landlord does not enforce any of them against any other tenants or if
Landlord does not have the right to enforce them against any other tenants and
such nonenforcement will not constitute a waiver as to Tenant.
EXHIBIT
“C”
TENANT ESTOPPEL
CERTIFICATE
Please
refer to the documents described in Schedule 1 hereto, (the “Lease Documents”)
including the “Lease” therein described; all defined terms in this Certificate
shall have the same meanings as set forth in the Lease unless otherwise
expressly set forth herein. The undersigned Tenant hereby certifies
that it is the tenant under the Lease. Tenant hereby further
acknowledges that it has been advised that the Lease may be collaterally
assigned in connection with a proposed financing secured by the Property and/or
may be assigned in connection with a sale of the Property and certifies both to
Landlord and to any and all prospective mortgagees and purchasers of the
Property, including any trustee on behalf of any holders of notes or other
similar instruments, any holders from time to time of such notes or other
instruments, and their respective successors and assigns (the “Beneficiaries”)
that as of the date hereof:
1. The
information set forth in attached Schedule 1 is true and correct.
2. Tenant
is in occupancy of the Premises and the Lease is in full force and effect, and,
except by such writings as are identified on Schedule l, has not been modified,
assigned, supplemented or amended since its original execution, nor are there
any other agreements between Landlord and Tenant concerning the Premises,
whether oral or written.
3. All
conditions and agreements under the Lease to be satisfied or performed by
Landlord have been satisfied and performed.
4. Tenant
is not in default under the Lease Documents, Tenant has not received any notice
of default under the Lease Documents, and, to Tenant’s knowledge, there are no
events which have occurred that, with the giving of notice and/or the passage of
time, would result in a default by Tenant under the Lease
Documents.
5. Tenant
has not paid any Rent due under the Lease more than 30 days in advance of the
date due under the Lease and Tenant has no rights of setoff, counterclaim,
concession or other rights of diminution of any Rent due and payable under the
Lease except as set forth in Schedule 1.
6. To
Tenant’s knowledge, there are no uncured defaults on the part of Landlord under
the Lease Documents, Tenant has not sent any notice of default under the Lease
Documents to Landlord, and there are no events which have occurred that, with
the giving of notice and/or the passage of time, would result in a default by
Landlord thereunder, and that at the present time Tenant has no claim against
Landlord under the Lease Documents.
7. Except
as expressly set forth in Part G of Schedule 1, there are no provisions for any,
and Tenant has no, options with respect to the Premises or all or any portion of
the Property.
8. No
action, voluntary or involuntary, is pending against Tenant under federal or
state bankruptcy or insolvency law.
9. The
undersigned has the authority to execute and deliver this Certificate on behalf
of Tenant and acknowledges that all Beneficiaries will rely upon this
Certificate in purchasing the Property or extending credit to Landlord or its
successors in interest.
10. This
Certificate shall be binding upon the successors, assigns and representatives of
Tenant and any party claiming through or under Tenant and shall inure to the
benefit of all Beneficiaries.
IN
WITNESS WHEREOF, Tenant has executed this Certificate this ____ day of
__________, 2____.
Name of Tenant
By:
Title:
SCHEDULE
1 TO TENANT ESTOPPEL CERTIFICATE
Lease Documents, Lease Terms
and Current Status
A. Date
of Lease:
B. Parties:
1. Landlord:
2. Tenant:
C. Premises:
D. Modifications,
Assignments, Supplements or Amendments to Lease:
E. Commencement
Date:
F. Expiration
of Current Term:
G. Option
Rights:
H. Security
Deposit Paid to Landlord: $
I. Current
Minimum Annual Rent: $
J. Current
Annual Operating Expenses: $
K. Current
Total Rent: $
L. Square
Feet Demised:
EXHIBIT
“D”
CLEANING
SCHEDULE