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EXHIBIT 10.6.1
LEASE AGREEMENT BETWEEN
WHATR REAL ESTATE LIMITED PARTNERSHIP,
AS LANDLORD, AND
DIGITAL SOLUTIONS, INC., AS TENANT
DATED MAY 30, 1997
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TABLE OF CONTENTS
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1. Lease Grant 1
2. Term 1
3. Rent 1
(a) Basic Rent 1
(b) Payment 2
(c) Consumer Price Index Increases to Basic Rent 2
(d) Operating Costs 2
4. Delinquent Payment; Handling Charges 4
5. Security Deposit 5
6. Landlord's Obligations 5
(a) Services 5
(b) Excess Utility Use 6
(c) Restoration of Services; Abatement 6
7. Improvements; Alterations; Repairs; Maintenance 7
(a) Improvements; Alterations 7
(b) Repairs; Maintenance 7
(c) Performance of Work 7
(d) Mechanic's Liens 8
8. Use 8
9. Assignment and Subletting 8
(a) Transfers; Consent 8
(b) Cancellation 9
(c) Additional Compensation 10
10. Insurance; Waivers; Subrogation; Indemnity 10
(a) Insurance 10
(b) Waiver of Negligence; No Subrogation 10
(c) Indemnity 11
11. Subordination; Attornment; Notice to Landlord's Mortgagee 11
(a) Subordination 11
(b) Attornment 11
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(c) Notice to Landlord's Mortgagee 11
(d) Current Status; Future Landlord's Mortgagee 11
12. Rules and Regulations 11
13. Condemnation 12
(a) Total Taking 12
(b) Partial Taking - Tenant's Rights 12
(c) Partial Taking - Landlord's Rights 12
(d) Award 12
14. Fire or Other Casualty 12
(a) Repair Estimate 12
(b) Landlord's and Tenant's Rights 12
(c) Landlord's Rights 13
(d) Repair Obligation 13
15. Personal Property Taxes 13
16. Events of Default 13
17. Remedies 14
18. Payment by Tenant; Non-Waiver 15
(a) Payment by Tenant 15
(b) No Waiver 15
19. Landlord's Lien 15
20. Surrender of Premises 16
21. Holding Over 16
22. Certain Rights Reserved by Landlord 16
23. Substitution Space 17
24. Miscellaneous 17
(a) Landlord Transfer 17
(b) Landlord's Liability 17
(c) Force Majeure 17
(d) Brokerage 17
(e) Estoppel Certificates 17
(f) Notices 18
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(g) Separability 18
(h) Amendments; and Binding Effect 18
(i) Quiet Enjoyment 18
(j) No Merger 18
(k) No Offer 18
(l) Entire Agreement 18
(m) Waiver of Jury Trial 19
(n) Governing Law 19
(o) Joint and Several Liability 19
(p) Financial Reports 19
(q) Landlord's Fees 19
(r) Telecommunications 19
(s) General Definitions 19
(t) Confidentiality 20
(u) List of Exhibits 20
25. Other Provisions 20
(a) Hazardous Substances 20
(b) ISRA Obligations 21
(c) Indemnity 21
(d) Environmental Report 22
(e) Landlord's Environmental Representation 22
(f) Vending Machine Area 23
(g) Landlord's Work 23
(h) Signage Rights 23
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LIST OF DEFINED TERMS
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Additional Rent 2
Affiliate 19
Basic Rent 1
Building 1
Casualty 12
Collateral 15
Commencement Date 1
Construction Allowance D-2
Consultant 22
Damage Notice 12
Electrical Costs 4
Event of Default 13
Expense Stop 2
Hazardous Substance 21
including 20
Interest Rate 4
ISRA 21
Landlord 1
Landlord's Mortgagee 11
Law 19
Laws 19
Lease 1
Loss 10
Operating Costs 2
Operating Costs and Tax Statement 4
Parking Area E-1
PCBs 21
Permitted Use 8
Premises 1
Proportionate Share 4
Rent 2
Report 22
Security Deposit 5
Taking 12
Taxes 3
Tenant 1
Tenant Delay Day D-2
Tenant Party 20
Term 1
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Third Party Offer 10
Total Construction Costs D-2
Transfer 8
UCC 15
Work D-1
Working Drawings D-1
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LEASE
THIS LEASE AGREEMENT (this "LEASE") is entered into as of May , 1997,
between WHATR REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership
("LANDLORD"), and DIGITAL SOLUTIONS, INC., a New Jersey corporation ("TENANT").
1. LEASE GRANT. Subject to the terms of this Lease, Landlord leases to
Tenant, and Tenant leases from Landlord, Suite No. 103 (the "PREMISES") as
depicted in the plan attached as Exhibit A in the office building (the
"BUILDING") located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇. The land on which the Building is located is described on Exhibit
B. The term "BUILDING" includes the related land, driveways, parking facilities,
and similar improvements.
2. TERM. The term of this Lease shall be approximately 120 months,
commencing on the earlier of (a) the date on which Landlord would have delivered
the Premises with the Work (as defined in Exhibit D hereto) substantially
completed but for Tenant Delay Days (as defined in Exhibit D hereto), if any, or
(b) the date on which Tenant occupies the Premises and begins conducting
business therein (such earlier date being referred to herein as the
"COMMENCEMENT DATE"), and expiring at 5:00 p.m., Somerset, New Jersey time on
the last day of the 120th full calendar month following the Commencement Date
(the "TERM", which definition shall include all renewals of the initial Term).
If the Premises are not ready for occupancy by Tenant on the Commencement Date,
then (b) Tenant's obligation to pay Basic Rent and Additional Rent (as defined
in Section 3) shall be waived until Landlord tenders possession of the Premises
to Tenant, (c) the Term shall be extended by the time between the scheduled
Commencement Date and the date on which Landlord tenders possession of the
Premises to Tenant, (d) Landlord shall not be in default hereunder or be liable
for damages therefor, and (e) Tenant shall accept possession of the Premises
when Landlord tenders possession thereof to Tenant.
3. RENT.
(a) BASIC RENT. "BASIC RENT" (herein so called) shall be the
following amounts for the following periods of time:
LEASE MONTH MONTHLY BASIC RENT
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1 - 60 $23,818.75
61 - 120 $26,677.00
As used herein, the term "LEASE MONTH" shall mean each calendar month during the
Term (and if the Commencement Date does not occur on the first day of a calendar
month, the period from
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the Commencement Date to the first day of the next calendar month shall be
included in the first Lease Month).
(b) PAYMENT. Tenant shall timely pay to Landlord Basic Rent and all
additional sums to be paid by Tenant to Landlord under this Lease (collectively,
the "RENT"), without deduction or set off, at Landlord's address provided for in
this Lease or as otherwise specified by Landlord. Basic Rent, adjusted as herein
provided, shall be payable monthly in advance, and shall be accompanied by all
applicable state and local sales or use taxes. The first monthly installment of
Basic Rent shall be payable contemporaneously with the execution of this Lease;
thereafter, Basic Rent shall be payable on the first day of each month beginning
on the first day of the second full calendar month of the Term. The monthly
Basic Rent for any partial month at the beginning of the Term shall equal the
product of 1/365 of the annual Basic Rent in effect during the partial month and
the number of days in the partial month from and after the Commencement Date,
and shall be due on the Commencement Date.
(c) CONSUMER PRICE INDEX INCREASES TO BASIC RENT. [Intentionally
deleted].
(d) OPERATING COSTS.
(1) Tenant shall pay an amount (per each rentable square foot
in the Premises) ("ADDITIONAL RENT") equal to the difference between the
Operating Costs (defined below) per rentable square foot in the Building
and the actual Operating Costs for the calendar year 1997 (the "EXPENSE
STOP"). Landlord may collect such amount in a lump sum, which shall be due
within 30 days after Landlord furnishes to Tenant the Operating Costs and
Tax Statement (defined below). Alternatively, Landlord may make a good
faith estimate of the Additional Rent to be due by Tenant for any calendar
year or part thereof during the Term, and Tenant shall pay to Landlord, on
the Commencement Date and on the first day of each calendar month
thereafter, an amount equal to the estimated Additional Rent for such
calendar year or part thereof divided by the number of months therein.
From time to time, Landlord may estimate and re-estimate the Additional
Rent to be due by Tenant and deliver a copy of the estimate or re-estimate
to Tenant. Thereafter, but no sooner than 30 days after Landlord's
delivery of Landlord's estimate or re-estimate of the Additional Rent, the
monthly installments of Additional Rent payable by Tenant shall be
appropriately adjusted in accordance with the estimations so that, by the
end of the calendar year in question, Tenant shall have paid all of the
Additional Rent as estimated by Landlord. Any amounts paid based on such
an estimate shall be subject to adjustment as herein provided when actual
Operating Costs are available for each calendar year.
(2) The term "OPERATING COSTS" shall mean all expenses and
disbursements (subject to the limitations set forth below) that Landlord
incurs in connection with the ownership, operation, and maintenance of the
Building, determined in accordance with generally accepted accounting
principles applicable to real estate consistently applied, including, but
not limited to, the following costs: (A) wages and
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salaries (including reasonable management fees) of all employees engaged
in the operation, maintenance, and security of the Building, including
taxes, insurance and benefits relating thereto; (B) all supplies and
materials used in the operation, maintenance, repair, replacement, and
security of the Building; (C) costs for improvements made to the Building
which, although capital in nature, are expected to reduce the normal
operating costs of the Building, as well as capital improvements made in
order to comply with any law hereafter promulgated by any governmental
authority, as amortized over the useful economic life of such improvements
as determined by Landlord in its reasonable discretion; (D) cost of all
utilities, except the cost of utilities reimbursable to Landlord by the
Building's tenants other than pursuant to a provision similar to this
Section 3.(d); (E) insurance expenses; (F) repairs, replacements, and
general maintenance of the Building; and (G) service or maintenance
contracts with independent contractors for the operation, maintenance,
repair, replacement, or security of the Building (including, without
limitation, alarm service, window cleaning, and elevator maintenance).
Operating Costs shall not include costs for (i) capital improvements
made to the Building, other than capital improvements described in Section
3.(d)(2)(C) and except for items which are generally considered
maintenance and repair items, such as painting of common areas,
replacement of carpet in elevator lobbies, decorating, redecorating, or
special cleaning or other services not provided on a regular basis to
tenants of the Building, and the like; (ii) repair, replacements and
general maintenance paid by proceeds of insurance or by Tenant or other
third parties; (iii) interest, amortization or other payments on loans to
Landlord; (iv) legal expenses for services, other than those that benefit
the Building tenants generally (e.g., tax disputes); (v) renovating or
otherwise improving space for occupants of the Building or vacant space in
the Building; (vi) Taxes (defined below), (vii) federal income taxes
imposed on or measured by the income of Landlord from the operation of the
Building; (viii) any charge for depreciation of the Building or equipment
and any interest or other financing charge; (ix) any charge for Landlord's
income taxes, excess profit taxes, franchise taxes, or similar taxes on
Landlord's business; (x) all costs relating to activities for the
solicitation and execution of leases of space in the Building, including
leasing commissions; (xi) the cost of correcting defects in the
construction of the Building or in the building equipment (except that
conditions not occasioned by construction defects resulting from ordinary
wear and tear will not be deemed defects for the purpose of this
category); (xii) the cost of any repair made by Landlord because of the
total or partial destruction of the Building or the condemnation of a
portion of the Building; (xiii) the cost of any items for which Landlord
is reimbursed by insurance or otherwise compensated by parties other than
tenants of the Building pursuant to clauses similar to this Section; (xiv)
any operating expense representing an amount paid to a related
corporation, entity or person which is in excess of the amount which would
be paid in the absence of such relationship; and (xv) the cost of overtime
or other expense to Landlord in curing its defaults or performing work
expressly provided in this Lease to be borne at Landlord's expense.
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(3) Tenant shall also pay its Proportionate Share (defined
below) of any increase in Taxes for each year and partial year falling
within the Term, which shall be determined by multiplying the difference
between (A) the Taxes for the year in question and (B) the Taxes for the
year 1997 by Tenant's Proportionate Share. Tenant shall pay its
Proportionate Share of Taxes in the same manner as provided above for
Additional Rent with regard to Operating Costs. "TAXES" shall mean taxes,
assessments, and governmental charges whether federal, state, county or
municipal, and whether they be by taxing districts or authorities
presently taxing or by others, subsequently created or otherwise, and any
other taxes and assessments attributable to the Building (or its
operation), excluding, however, penalties and interest thereon and federal
and state taxes on income (if the present method of taxation changes so
that in lieu of the whole or any part of any Taxes, there is levied on
Landlord a capital tax directly on the rents received therefrom or a
franchise tax, assessment, or charge based, in whole or in part, upon such
rents for the Building, then all such taxes, assessments, or charges, or
the part thereof so based, shall be deemed to be included within the term
"Taxes" for purposes hereof). Taxes shall include the costs of consultants
retained in an effort to lower taxes and all costs incurred in disputing
any taxes or in seeking to lower the tax valuation of the Building. If
Landlord is successful in lowering the Taxes for the Building, Landlord
shall calculate Tenant's Proportionate Share of Taxes based upon the
revised tax valuation of the Building.
(4) Tenant shall also pay to Landlord an amount equal to the
product of (A) the cost of all electricity used by the Building
("ELECTRICAL COSTS") multiplied by (B) Tenant's Proportionate Share.
Tenant shall pay its Proportionate Share of Electrical Costs in the same
manner as provided above for Additional Rent with regard to Operating
Costs. Tenant's Proportionate Share of Electrical Costs shall be included
in the definition of Additional Rent under this Lease.
(5) By April 1 of each calendar year, or as soon thereafter as
practicable, but in no event later than June 30th of each calendar year,
Landlord shall furnish to Tenant a statement of Operating Costs and
Electrical Costs for the previous year, in each case adjusted as provided
in Section 3.(d)(7), and of the Taxes for the previous year (the
"OPERATING COSTS AND TAX STATEMENT"). If the Operating Costs and Tax
Statement reveals that Tenant paid more for Operating Costs than the
actual amount for the year for which such statement was prepared, or more
than its actual share of Taxes for such year, then Landlord shall promptly
credit or reimburse Tenant for such excess; likewise, if Tenant paid less
than Tenant's actual Proportionate Share of Additional Rent or share of
Taxes due, then Tenant shall promptly pay Landlord such deficiency.
(6) As used herein, Tenant's "PROPORTIONATE SHARE" shall be
10.2063%, which is the percentage obtained by dividing the rentable square
feet of area in the Premises, which is stipulated to be 15,244 rentable
square feet, by the total number of square feet of area in the Building,
which is stipulated to be 149,359 rentable square feet.
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(7) With respect to any calendar year or partial calendar year
in which the Building is not occupied to the extent of 95% of the rentable
area thereof, the Operating Costs and Electrical Costs for such period
shall, for the purposes hereof, be increased to the amount which would
have been incurred had the Building been occupied to the extent of 95% of
the rentable area thereof.
4. DELINQUENT PAYMENT; HANDLING CHARGES. All past due payments required of
Tenant hereunder shall bear interest from the date due until paid at the lesser
of 18% per annum (the "INTEREST RATE") or the maximum lawful rate of interest;
additionally, after Landlord has delivered to Tenant written notice of its
failure to pay Rent when due, then Landlord may, without delivering to Tenant
notice of such delinquency, charge Tenant a fee equal to 5% of any future
delinquent payment during the 12-month period following such delinquency to
reimburse Landlord for its cost and inconvenience incurred as a consequence of
Tenant's delinquency. In no event, however, shall the charges permitted under
this Section 4 or elsewhere in this Lease, to the extent they are considered to
be interest under law, exceed the maximum lawful rate of interest.
5. SECURITY DEPOSIT. Contemporaneously with the execution of this Lease,
Tenant shall pay to Landlord $23,818.75 (the "SECURITY DEPOSIT"), which shall be
held by Landlord to secure Tenant's performance of its obligations under this
Lease. The Security Deposit is not an advance payment of Rent or a measure or
limit of Landlord's damages upon an Event of Default (defined in Section 16).
Landlord may, from time to time and without prejudice to any other remedy, use
all or a part of the Security Deposit to perform any obligation Tenant fails to
perform hereunder (after the expiration of any applicable notice and opportunity
to cure provisions expressly set forth herein). Following any such application
of the Security Deposit, Tenant shall pay to Landlord on demand the amount so
applied in order to restore the Security Deposit to its original amount.
Provided that Tenant has performed all of its obligations hereunder, Landlord
shall, within 30 days after the Term ends, return to Tenant the portion of the
Security Deposit which was not applied to satisfy Tenant's obligations. The
Security Deposit may be commingled with other funds, and no interest shall be
paid thereon. If Landlord transfers its interest in the Premises and the
transferee assumes Landlord's obligations under this Lease, then Landlord may
assign the Security Deposit to the transferee and Landlord thereafter shall have
no further liability for the return of the Security Deposit. So long as no Event
of Default has occurred under this Lease, Landlord shall, upon Tenant's written
request therefor, apply the Security Deposit toward Tenant's Rent obligations on
the 13th full calendar month following the Commencement Date.
6. LANDLORD'S OBLIGATIONS.
(a) SERVICES. Landlord shall furnish to Tenant (1) water at those
points of supply provided for general use of tenants of the Building; (2) heated
and refrigerated air conditioning as appropriate, at such temperatures and in
such amounts as are standard for comparable buildings in the vicinity of the
Building; (3) janitorial service to the Premises on
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weekdays, other than holidays, for Building-standard installations and such
window washing as may from time to time be reasonably required; (4) elevators
for ingress and egress to the floor on which the Premises are located, in common
with other tenants, provided that Landlord may reasonably limit the number of
operating elevators during non-business hours and holidays; and (5) electrical
current during normal business hours for equipment that does not require more
than 110 volts and whose electrical energy consumption does not exceed normal
office usage and for purposes incidental to such normal office usage. Landlord
shall maintain the common areas of the Building (including any restrooms not
contained within the Premises and the structure of the Building) in reasonably
good order and condition, except for damage caused by a Tenant Party. If Tenant
desires any of the services specified in Section 6.(a)(2) at any time other than
(A) between 8:00 a.m. and 6:00 p.m. on weekdays, (B) between 8:00 a.m. and 1:00
p.m. on Saturday, or (C) on Sunday or holidays, then such services shall be
supplied to Tenant upon the written request of Tenant delivered to Landlord
before 3:00 p.m. on the business day preceding such extra usage, and Tenant
shall pay to Landlord the cost of such services within 30 days after Landlord
has delivered to Tenant an invoice therefor. The costs incurred by Landlord in
providing after-hour HVAC service to Tenant shall include costs for electricity,
water, sewage, water treatment, labor, metering, filtering, and maintenance
reasonably allocated by Landlord to providing such service. Landlord's
after-normal business hour charges for HVAC for 1997 is $75.00 per hour per air
conditioning zone in the Building; however, Landlord and Tenant agree that such
figure shall not be interpreted as a maximum amount which may be charged to
Tenant for such services.
(b) EXCESS UTILITY USE. Landlord shall not be required to furnish
electrical current for equipment that requires more than 110 volts or other
equipment whose electrical energy consumption exceeds normal office usage. If
Tenant's requirements for or consumption of electricity exceed the electricity
to be provided by Landlord as described in Section 6.(a), Landlord shall, at
Tenant's expense, make reasonable efforts to supply such service through the
then-existing feeders and risers serving the Building and the Premises, and
Tenant shall pay to Landlord the cost of such service within 30 days after
Landlord has delivered to Tenant an invoice therefor. Landlord may determine the
amount of such additional consumption and potential consumption by any
reasonable and verifiable method, including installation of a separate meter in
the Premises installed, maintained, and read by Landlord, at Tenant's expense.
Tenant shall not install any electrical equipment requiring special wiring or
requiring voltage in excess of 110 volts or otherwise exceeding Building
capacity unless approved in advance by Landlord, which approval shall not be
unreasonably withheld, delayed or conditioned. The use of electricity in the
Premises shall not exceed the capacity of existing feeders and risers to or
wiring in the Premises. Any risers or wiring required to meet Tenant's excess
electrical requirements shall, upon Tenant's written request, be installed by
Landlord, at Tenant's cost, if, in Landlord's reasonable judgment, the same are
necessary and shall not cause permanent damage to the Building or the Premises,
cause or create a dangerous or hazardous condition, entail excessive or
unreasonable alterations, repairs, or expenses, or interfere with or disturb
other tenants of the Building. If Tenant uses machines or equipment in the
Premises which affect the temperature otherwise maintained by the air
conditioning system or otherwise overload any utility, Landlord may install
supplemental air conditioning units or other supplemental
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equipment in the Premises, and the cost thereof, including the cost of
installation, operation, use, and maintenance, shall be paid by Tenant to
Landlord within 30 days after Landlord has delivered to Tenant an invoice
therefor.
(c) RESTORATION OF SERVICES; ABATEMENT. Landlord shall use
reasonable efforts to restore any service required of it that becomes
unavailable; however, such unavailability shall not render Landlord liable for
any damages caused thereby, be a constructive eviction of Tenant, constitute a
breach of any implied warranty, or, except as provided in the next sentence,
entitle Tenant to any abatement of Tenant's obligations hereunder. If, however,
Tenant is prevented from using the Premises for more than 15 consecutive
business days because of the unavailability of any such service and such
unavailability was not caused by a Tenant Party, then Tenant shall, as its
exclusive remedy be entitled to a reasonable abatement of Rent for each
consecutive day (after such 15-day period) that Tenant is so prevented from
using the Premises.
7. IMPROVEMENTS; ALTERATIONS; REPAIRS; MAINTENANCE.
(a) IMPROVEMENTS; ALTERATIONS. Improvements to the Premises shall be
installed at Tenant's expense only in accordance with plans and specifications
which have been previously submitted to and approved in writing by Landlord. No
alterations or physical additions in or to the Premises may be made without
Landlord's prior written consent, which shall not be unreasonably withheld or
delayed; however, Landlord may withhold its consent to any alteration or
addition that would affect the Building's structure or its HVAC, plumbing,
electrical, or mechanical systems. Notwithstanding the foregoing, Tenant shall
not be required to obtain Landlord's consent for repainting, recarpeting, or
other cosmetic alterations totaling less than $5,000 in any single instance or
series of related alterations performed within a six-month period, provided that
such alterations do not affect the configuration or location of any exterior or
interior walls of the Building, the HVAC system, the Building's structure, or
the Building's electrical, plumbing, or other mechanical systems. Tenant shall
not paint or install lighting or decorations, signs, window or door lettering,
or advertising media of any type on or about the Premises without the prior
written consent of Landlord, which shall not be unreasonably withheld or
delayed; however, Landlord may withhold its consent to any such painting or
installation which would affect the appearance of the exterior of the Building
or of any common areas of the Building. For taxation purposes only, any
additions or alterations to the Premises will be deemed to be the property of
Tenant during the Term of this Lease, and Tenant may claim any tax credits and
depreciate such property. All alterations, additions, or improvements made in or
upon the Premises shall, at Landlord's option, either be removed by Tenant prior
to the end of the Term (and Tenant shall repair all damage caused thereby), or
shall remain on the Premises at the end of the Term without compensation to
Tenant. All alterations, additions, and improvements shall be constructed,
maintained, and used by Tenant, at its risk and expense, in accordance with all
Laws; Landlord's approval of the plans and specifications therefor shall not be
a representation by Landlord that such alterations, additions, or improvements
comply with any Law.
(b) REPAIRS; MAINTENANCE. Tenant shall maintain the Premises in a
clean,
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safe, and operable condition, ordinary wear and tear and damage by Casualty
(defined below) excepted, and shall not permit or allow to remain any waste or
damage to any portion of the Premises. Tenant shall repair or replace, subject
to Landlord's direction and supervision, any damage to the Building caused by a
Tenant Party. If Tenant fails to make such repairs or replacements within 15
days after the occurrence of such damage, or if such damage occurred in a common
area, within 15 days of written notice by Landlord of such damage, then Landlord
may make the same at Tenant's cost. If any such damage occurs outside of the
Premises, then Landlord may elect to repair such damage at Tenant's expense,
rather than having Tenant repair such damage. The cost of all repair or
replacement work performed by Landlord under this Section 7 shall be paid by
Tenant to Landlord within ten days after Landlord has invoiced Tenant therefor.
(c) PERFORMANCE OF WORK. All work described in this Section 7 shall
be performed only by Landlord or by contractors and subcontractors approved in
writing by Landlord, which approval shall not be unreasonably withheld, delayed
or conditioned. Tenant shall cause all contractors and subcontractors to procure
and maintain insurance coverage naming Landlord as an additional insured against
such risks, in such amounts, and with such companies as Landlord may reasonably
require. All such work shall be performed in accordance with all Laws and in a
good and workmanlike manner so as not to damage the Premises, the Building, or
the components thereof.
(d) MECHANIC'S LIENS. Tenant shall not permit any mechanic's liens
to be filed against the Premises or the Building for any work performed,
materials furnished, or obligation incurred by or at the request of Tenant. If
such a lien is filed, then Tenant shall, within ten days after Landlord has
delivered notice of the filing thereof to Tenant, either pay the amount of the
lien or diligently contest such lien and deliver to Landlord a bond or other
security reasonably satisfactory to Landlord. If Tenant fails to timely take
either such action, then Landlord may pay the lien claim, and any amounts so
paid, including expenses and interest, shall be paid by Tenant to Landlord
within ten days after Landlord has invoiced Tenant therefor.
8. USE. Tenant shall continuously occupy and use the Premises only for
general office use and purposes incidental to such general office use (the
"PERMITTED USE") and shall comply with all Laws relating to the use, condition,
access to, and occupancy of the Premises. The Premises shall not be used for any
use which is disreputable, creates extraordinary fire hazards, or results in an
increased rate of insurance on the Building or its contents, or for the storage
of any hazardous materials or substances. If, because of a Tenant Party's acts,
the rate of insurance on the Building or its contents increases, then such acts
shall be an Event of Default, Tenant shall pay to Landlord the amount of such
increase on demand, and acceptance of such payment shall not waive any of
Landlord's other rights. Tenant shall conduct its business and control each
other Tenant Party so as not to create any nuisance or unreasonably interfere
with other tenants or Landlord in its management of the Building.
9. ASSIGNMENT AND SUBLETTING.
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(a) TRANSFERS; CONSENT. Tenant shall not, without the prior written
consent of Landlord, (1) assign, transfer, or encumber this Lease or any estate
or interest herein, whether directly or by operation of law, (2) permit any
other entity to become Tenant hereunder by merger, consolidation, or other
reorganization, (3) if Tenant is an entity other than a corporation whose stock
is publicly traded, permit the transfer of an ownership interest in Tenant so as
to result in a change in the current control of Tenant, (4) sublet any portion
of the Premises, (5) grant any license, concession, or other right of occupancy
of any portion of the Premises, or (6) permit the use of the Premises by any
parties other than Tenant (any of the events listed in Section 9.(a)(1) through
9.(a)(6) being a "TRANSFER"). If Tenant requests Landlord's consent to a
Transfer, then Tenant shall provide Landlord with a written description of all
terms and conditions of the proposed Transfer, copies of the proposed
documentation, and the following information about the proposed transferee: name
and address; reasonably satisfactory information about its business and business
history; its proposed use of the Premises; banking, financial, and other credit
information; and general references sufficient to enable Landlord to determine
the proposed transferee's creditworthiness and character. Landlord shall not
unreasonably withhold its consent to any assignment or subletting of the
Premises, provided that the proposed transferee (A) is creditworthy, (B) has a
good reputation in the business community, (C) does not engage in business
similar to those of other tenants in the Building, and (D) is not another
occupant of the Building or person or entity with whom Landlord is negotiating
to lease space in the Building; otherwise, Landlord may withhold its consent in
its sole discretion. Concurrently with Tenant's notice of any request for
consent to a Transfer, Tenant shall pay to Landlord a fee of $750 to defray
Landlord's expenses in reviewing such request, and Tenant shall also reimburse
Landlord immediately upon request for its attorneys' fees incurred in connection
with considering any request for consent to a Transfer. If Landlord consents to
a proposed Transfer, then the proposed transferee shall deliver to Landlord a
written agreement whereby it expressly assumes Tenant's obligations hereunder;
however, any transferee of less than all of the space in the Premises shall be
liable only for obligations under this Lease that are properly allocable to the
space subject to the Transfer for the period of the Transfer. Notwithstanding
the foregoing, Tenant may assign its interest in this Lease or sublet the
Premises to an affiliate of Tenant without Landlord's prior written consent,
provided that Tenant promptly notifies Landlord thereof after such assignment or
subletting. No Transfer shall release Tenant from its obligations under this
Lease, but rather Tenant and its transferee shall be jointly and severally
liable therefor. Landlord's consent to any Transfer shall not waive Landlord's
rights as to any subsequent Transfers. If an Event of Default occurs while the
Premises or any part thereof are subject to a Transfer, then Landlord, in
addition to its other remedies, may collect directly from such transferee all
rents becoming due to Tenant and apply such rents against Rent. Tenant
authorizes its transferees to make payments of rent directly to Landlord upon
receipt of notice from Landlord to do so. Tenant shall pay for the cost of any
demising walls or other improvements necessitated by a proposed subletting or
assignment.
(b) CANCELLATION. Landlord may, within 30 days after submission of
Tenant's written request for Landlord's consent to an assignment or subletting,
cancel this Lease as to the portion of the Premises proposed to be sublet or
assigned (the "CANCELED SPACE") as of the date the proposed Transfer is to be
effective. If Landlord cancels this Lease as to any portion of the
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Premises, then this Lease shall cease for such portion of the Premises, Tenant
shall pay to Landlord all Rent accrued through the cancellation date relating to
the portion of the Premises covered by the proposed Transfer, and thereafter
Tenant shall be relieved of all further liabilities arising with respect to the
portion of the Premises so cancelled following the cancellation date.
Thereafter, Landlord may lease such portion of the Premises to the prospective
transferee (or to any other person) without liability to Tenant. If Landlord
cancels this Lease as to less than all of the Premises, after the initial
leasing of such Canceled Space to the prospective transferee (or to any other
person) following Landlord's termination thereof and at least twenty four full
calendar months then remains in the Term of this Lease, Landlord shall first
offer (the "OFFER NOTICE") to lease to Tenant the Canceled Space in its then
"as-is" condition and otherwise on the terms and conditions contained in this
Lease (provided that the Term hereof has not expired or been terminated). Tenant
shall notify Landlord in writing whether Tenant elects to lease the entire
Canceled Space within five business days after Landlord delivers to Tenant the
Offer Notice. If Tenant timely elects to lease such Canceled Space, then
Landlord and Tenant shall execute an amendment to this Lease, effective as of
the date such Canceled Space is to be included in the Premises, on the same
terms as this Lease except that (i) the square feet of the Premises shall be
increased by the number of square feet in the Canceled Space (and Tenant's
Proportionate Share shall be adjusted accordingly), (ii) the Basic Rent shall be
increased taking into consideration the increased number of square feet in the
Premises, and (iii) Landlord shall not provide to Tenant any allowances
(construction allowance and the like) or other tenant inducements. If Tenant
fails or is unable to timely exercise its rights hereunder, then such right
shall lapse, time being of the essence with respect to the exercise thereof, and
Landlord may lease the Canceled Space to third parties on such terms as Landlord
may elect without liability to Tenant. Notwithstanding the foregoing, if prior
to Landlord's delivery to Tenant of the Offer Notice, Landlord has received an
offer to lease all or part of the Canceled Space from a third party (a "THIRD
PARTY OFFER") and such Third Party Offer includes space in excess of the
Canceled Space or for a term in excess of the remaining Term of this Lease,
Tenant must exercise its rights hereunder, if at all, as to (i) all of the space
contained in the Third Party Offer and/or (ii) the extended lease term, as
applicable.
(c) ADDITIONAL COMPENSATION. Tenant shall pay to Landlord,
immediately upon receipt thereof, the excess of (1) all compensation received by
Tenant for a Transfer less the costs reasonably incurred by Tenant with
unaffiliated third parties in connection with such Transfer (i.e., brokerage
commissions, tenant finish work, and the like) over (2) the Rent allocable to
the portion of the Premises covered thereby.
10. INSURANCE; WAIVERS; SUBROGATION; INDEMNITY.
(a) INSURANCE. Tenant shall maintain throughout the Term the
following insurance policies: (1) comprehensive general liability insurance in
amounts of $1,000,000 per occurrence with $2,000,000 in the aggregate or such
other amounts as Landlord may from time to time reasonably require, insuring
Tenant, Landlord, Landlord's agents and their respective affiliates against all
liability for injury to or death of a person or persons or damage to property
arising from the use and occupancy of the Premises, (2) insurance covering the
full value of Tenant's property and improvements, and other property (including
property of others) in the
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Premises, (3) contractual liability insurance sufficient to cover Tenant's
indemnity obligations hereunder, (4) worker's compensation insurance, containing
a waiver of subrogation endorsement acceptable to Landlord, and (5) business
interruption insurance or, at Tenant's option, extra expense insurance. Tenant's
insurance shall provide primary coverage to Landlord when any policy issued to
Landlord provides duplicate or similar coverage, and in such circumstance
Landlord's policy will be excess over Tenant's policy. Tenant shall furnish to
Landlord certificates of such insurance and such other evidence satisfactory to
Landlord of the maintenance of all insurance coverages required hereunder, and
Tenant shall obtain a written obligation on the part of each insurance company
to notify Landlord at least 30 days before cancellation or a material change of
any such insurance policies. All such insurance policies shall be in form, and
issued by companies, reasonably satisfactory to Landlord.
(b) WAIVER OF NEGLIGENCE; NO SUBROGATION. Landlord and Tenant each
waives any claim it might have against the other for any injury to or death of
any person or persons or damage to or theft, destruction, loss, or loss of use
of any property (a "LOSS"), to the extent the same is insured against under any
insurance policy that covers the Building, the Premises, Landlord's or Tenant's
fixtures, personal property, leasehold improvements, or business, or, in the
case of Tenant's waiver, is required to be insured against under the terms
hereof, REGARDLESS OF WHETHER THE NEGLIGENCE OF THE OTHER PARTY CAUSED SUCH
LOSS; however, Landlord's waiver shall not include any deductible amounts on
insurance policies carried by Landlord. Each party shall cause its insurance
carrier to endorse all applicable policies waiving the carrier's rights of
recovery under subrogation or otherwise against the other party.
(c) INDEMNITY. Subject to Section 10.(b), Tenant shall defend,
indemnify, and hold harmless Landlord and its representatives and agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages, and expenses (including attorneys' fees) arising from (1)
any Loss arising from any occurrence on the Premises (other than a Loss arising
from the sole or gross negligence or willful misconduct of Landlord) or (2)
Tenant's failure to perform its obligations under this Lease. Subject to Section
10.(b), Landlord shall defend, indemnify, and hold harmless Tenant and its
representatives and agents from and against all claims, demands, liabilities,
causes of action, suits, judgments, damages and expenses (including attorneys'
fees) arising from any loss, arising from any occurrence in the Building's
common areas (other than a Loss arising from the sole or gross negligence or
willful misconduct of a Tenant Party). The indemnities set forth in this Section
10.(c) shall survive termination or expiration of this Lease. If any proceeding
is filed for which indemnity is required hereunder, the indemnifying party
agrees, upon request therefor, to defend the indemnified party in such
proceeding at its sole cost utilizing counsel satisfactory to the indemnified
party.
11. SUBORDINATION; ATTORNMENT; NOTICE TO LANDLORD'S MORTGAGEE.
(a) SUBORDINATION. This Lease shall be subordinate to any deed of
trust, mortgage, or other security instrument, or any ground lease, master
lease, or primary lease, that now or hereafter covers all or any part of the
Premises (the mortgagee under any such mortgage
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or the lessor under any such lease is referred to herein as a "LANDLORD'S
MORTGAGEE"). Any Landlord's Mortgagee may elect, at any time, unilaterally, to
make this Lease superior to its mortgage, ground lease, or other interest in the
Premises by so notifying Tenant in writing.
(b) ATTORNMENT. Tenant shall attorn to any party succeeding to
Landlord's interest in the Premises, whether by purchase, foreclosure, deed in
lieu of foreclosure, power of sale, termination of lease, or otherwise, upon
such party's request, and shall execute such agreements confirming such
attornment as such party may reasonably request.
(c) NOTICE TO LANDLORD'S MORTGAGEE. Tenant shall not seek to enforce
any remedy it may have for any default on the part of Landlord without first
giving written notice by certified mail, return receipt requested, specifying
the default in reasonable detail, to any Landlord's Mortgagee whose address has
been given to Tenant, and affording such Landlord's Mortgagee a reasonable
opportunity to perform Landlord's obligations hereunder.
(d) CURRENT STATUS; FUTURE LANDLORD'S MORTGAGEE. Landlord represents
and warrants to Tenant that there is currently no existing Landlord's Mortgagee.
Upon written request from Tenant, Landlord shall use reasonable efforts to
obtain a Subordination, Non-Disturbance and Attornment Agreement from any future
Landlord's Mortgagee in a form reasonably acceptable to Tenant and such
Landlord's Mortgagee; however, Landlord's failure to deliver such agreement
shall not constitute a default by Landlord hereunder, prohibit the mortgaging of
the Building, or otherwise affect the subordination of Tenant's rights
hereunder.
12. RULES AND REGULATIONS. Tenant shall comply with the rules and
regulations of the Building which are attached hereto as Exhibit C. Landlord
may, from time to time, change such rules and regulations for the safety, care,
or cleanliness of the Building and related facilities, provided that such
changes are applicable to all tenants of the Building and will not unreasonably
interfere with Tenant's use of the Premises. Tenant shall be responsible for the
compliance with such rules and regulations by each Tenant Party.
13. CONDEMNATION.
(a) TOTAL TAKING. If the entire Building or Premises are taken by
right of eminent domain or conveyed in lieu thereof (a "TAKING"), this Lease
shall terminate as of the date of the Taking.
(b) PARTIAL TAKING - TENANT'S RIGHTS. If any part of the Building
becomes subject to a Taking and such Taking will prevent Tenant from conducting
its business in the Premises in a manner reasonably comparable to that conducted
immediately before such Taking for a period of more than 180 days, then Tenant
may terminate this Lease as of the date of such Taking by giving written notice
to Landlord within 30 days after the Taking, and Rent shall be apportioned as of
the date of such Taking. If Tenant does not terminate this Lease, then Rent
shall be abated on a reasonable basis as to that portion of the Premises
rendered untenantable by the Taking.
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(c) PARTIAL TAKING - LANDLORD'S RIGHTS. If any material portion, but
less than all, of the Building becomes subject to a Taking, or if Landlord is
required to pay any of the proceeds received for a Taking to a Landlord's
Mortgagee, then Landlord may terminate this Lease by delivering written notice
thereof to Tenant within 30 days after such Taking, and Rent shall be
apportioned as of the date of such Taking. If Landlord does not so terminate
this Lease, then this Lease will continue, but if any portion of the Premises
has been taken, Rent shall ▇▇▇▇▇ as provided in the last sentence of Section
13.(b).
(d) AWARD. If any Taking occurs, then Landlord shall receive the
entire award or other compensation for the land on which the Building is
situated, the Building, and other improvements taken, and Tenant may separately
pursue a claim (to the extent it will not reduce Landlord's award) against the
condemnor for the value of Tenant's personal property which Tenant is entitled
to remove under this Lease, moving costs, loss of business, and other claims it
may have.
14. FIRE OR OTHER CASUALTY.
(a) REPAIR ESTIMATE. If the Premises or the Building are damaged by
fire or other casualty (a "CASUALTY"), Landlord shall, within 90 days after such
Casualty, deliver to Tenant a good faith estimate (the "DAMAGE NOTICE") of the
time needed to repair the damage caused by such Casualty.
(b) LANDLORD'S AND TENANT'S RIGHTS. If a material portion of the
Premises or the Building is damaged by Casualty such that Tenant is prevented
from conducting its business in the Premises in a manner reasonably comparable
to that conducted immediately before such Casualty and Landlord estimates that
the damage caused thereby cannot be repaired within 240 days after the Casualty,
then Tenant may terminate this Lease by delivering written notice to Landlord of
its election to terminate within 30 days after the Damage Notice has been
delivered to Tenant. If Tenant does not so timely terminate this Lease, then
(subject to Section 14.(c)) Landlord shall repair the Building or the Premises,
as the case may be, as provided below, and Rent for the portion of the Premises
rendered untenantable and inaccessible by the damage shall be abated on a
reasonable basis from the date of damage until the completion of the repair,
unless a Tenant Party caused such damage, in which case, Tenant shall continue
to pay Rent without abatement.
(c) LANDLORD'S RIGHTS. If a Casualty damages a material portion of
the Building, and Landlord makes a good faith determination that restoring the
Premises would be uneconomical, or if Landlord is required to pay any insurance
proceeds arising out of the Casualty to a Landlord's Mortgagee, then Landlord
may terminate this Lease by giving written notice of its election to terminate
within 30 days after the Damage Notice has been delivered to Tenant, and Basic
Rent and Additional Rent shall be abated as of the date of the Casualty.
(d) REPAIR OBLIGATION. If neither party elects to terminate this
Lease
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following a Casualty, then Landlord shall, within a reasonable time after such
Casualty, begin to repair the Building and the Premises and shall proceed with
reasonable diligence to restore the Building and Premises to substantially the
same condition as they existed immediately before such Casualty; however,
Landlord shall not be required to repair or replace any of the furniture,
equipment, fixtures, and other improvements which may have been placed by, or at
the request of, Tenant or other occupants in the Building or the Premises, and
Landlord's obligation to repair or restore the Building or Premises shall be
limited to the extent of the insurance proceeds actually received by Landlord
for the Casualty in question.
15. PERSONAL PROPERTY TAXES. Tenant shall be liable for all taxes levied
or assessed against personal property, furniture, or fixtures placed by Tenant
in the Premises. If any taxes for which Tenant is liable are levied or assessed
against Landlord or Landlord's property and Landlord elects to pay the same, or
if the assessed value of Landlord's property is increased by inclusion of such
personal property, furniture or fixtures and Landlord elects to pay the taxes
based on such increase, then Tenant shall pay to Landlord, upon demand, the part
of such taxes for which Tenant is primarily liable hereunder; however, Landlord
shall not pay such amount if Tenant notifies Landlord that it will contest the
validity or amount of such taxes before Landlord makes such payment, and
thereafter diligently proceeds with such contest in accordance with law and if
the non-payment thereof does not pose a threat of loss or seizure of the
Building or interest of Landlord therein or impose any fee or penalty against
Landlord.
16. EVENTS OF DEFAULT. Each of the following occurrences shall be an
"EVENT OF DEFAULT":
(a) Tenant's failure to pay Rent within five days after Landlord has
delivered written notice to Tenant that the same is due; however, an Event of
Default shall occur hereunder without any obligation of Landlord to give any
notice if Landlord has given Tenant written notice under this Section 16.(a) on
more than two occasions during the twelve (12) month interval preceding such
failure by Tenant;
(b) Tenant (1) abandons or vacates the Premises or any substantial
portion thereof or (2) fails to continuously operate its business in the
Premises for the Permitted Use set forth herein;
(c) Tenant fails to provide any estoppel certificate as called for
in this Lease and such failure shall continue for 5 days after written notice
thereof from Landlord to Tenant;
(d) Tenant's failure to perform, comply with, or observe any other
agreement or obligation of Tenant under this Lease and the continuance of such
failure for a period of more than 30 days after Landlord has delivered to Tenant
written notice thereof; and
(e) The filing of a petition by or against Tenant (the term "TENANT"
shall include, for the purpose of this Section 16.(e), any guarantor of Tenant's
obligations hereunder) (1) in any bankruptcy or other insolvency proceeding; (2)
seeking any relief under any state or
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federal debtor relief law; (3) for the appointment of a liquidator or receiver
for all or substantially all of Tenant's property or for Tenant's interest in
this Lease; or (4) for the reorganization or modification of Tenant's capital
structure; however, if such a petition is filed against Tenant, then such filing
shall not be an Event of Default unless Tenant fails to have the proceedings
initiated by such petition dismissed within 90 days after the filing thereof.
17. REMEDIES. Upon any Event of Default, Landlord may, in addition to all
other rights and remedies afforded Landlord hereunder or by law or equity, take
any of the following actions:
(a) Terminate this Lease by giving Tenant written notice thereof, in
which event Tenant shall pay to Landlord the sum of (1) all Rent accrued
hereunder through the date of termination, (2) all amounts due under Section
18.(a), and (3) an amount equal to the total Rent that Tenant would have been
required to pay for the remainder of the Term;
(b) Terminate Tenant's right to possess the Premises without
terminating this Lease by giving written notice thereof to Tenant, in which
event Tenant shall pay to Landlord (1) all Rent and other amounts accrued
hereunder to the date of termination of possession, (2) all amounts due from
time to time under Section 18.(a), and (3) all Rent and other net sums required
hereunder to be paid by Tenant during the remainder of the Term, diminished by
any net sums thereafter received by Landlord through reletting the Premises
during such period, after deducting all costs incurred by Landlord in reletting
the Premises. Landlord shall use reasonable efforts to relet the Premises on
such terms as Landlord in its sole discretion may determine (including a term
different from the Term, rental concessions, and alterations to, and improvement
of, the Premises); however, Landlord shall not be obligated to relet the
Premises before leasing other portions of the Building. Landlord shall not be
liable for, nor shall Tenant's obligations hereunder be diminished because of,
Landlord's failure to relet the Premises or to collect rent due for such
reletting. Tenant shall not be entitled to the excess of any consideration
obtained by reletting over the Rent due hereunder. Reentry by Landlord in the
Premises shall not affect Tenant's obligations hereunder for the unexpired Term;
rather, Landlord may, from time to time, bring an action against Tenant to
collect amounts due by Tenant, without the necessity of Landlord's waiting until
the expiration of the Term. Unless Landlord delivers written notice to Tenant
expressly stating that it has elected to terminate this Lease, all actions taken
by Landlord to dispossess or exclude Tenant from the Premises shall be deemed to
be taken under this Section 17.(b). If Landlord elects to proceed under this
Section 17.(b), it may at any time elect to terminate this Lease under Section
17.(a); or
(c) Additionally, without notice, Landlord may alter locks or other
security devices at the Premises to deprive Tenant of access thereto, and
Landlord shall not be required to provide a new key or right of access to
Tenant.
18. PAYMENT BY TENANT; NON-WAIVER.
(a) PAYMENT BY TENANT. Upon any Event of Default, Tenant shall pay
to
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Landlord all costs incurred by Landlord (including court costs and reasonable
attorneys' fees and expenses) in (1) obtaining possession of the Premises, (2)
removing and storing Tenant's or any other occupant's property, (3) repairing,
restoring, altering, remodeling, or otherwise putting the Premises into
condition acceptable to a new tenant, (4) if Tenant is dispossessed of the
Premises and this Lease is not terminated, reletting all or any part of the
Premises (including brokerage commissions, cost of tenant finish work, and other
costs incidental to such reletting), (5) performing Tenant's obligations which
Tenant failed to perform, and (6) enforcing, or advising Landlord of, its
rights, remedies, and recourses arising out of the Event of Default. To the full
extent permitted by law, Landlord and Tenant agree the federal and state courts
of New Jersey shall have exclusive jurisdiction over any matter relating to or
arising from this Lease and the parties' rights and obligations under this
Lease.
(b) NO WAIVER. Landlord's acceptance of Rent following an Event of
Default shall not waive Landlord's rights regarding such Event of Default. No
waiver by Landlord of any violation or breach of any of the terms contained
herein shall waive Landlord's rights regarding any future violation of such
term. Landlord's acceptance of any partial payment of Rent shall not waive
Landlord's rights with regard to the remaining portion of the Rent that is due,
regardless of any endorsement or other statement on any instrument delivered in
payment of Rent or any writing delivered in connection therewith; accordingly,
Landlord's acceptance of a partial payment of Rent shall not constitute an
accord and satisfaction of the full amount of the Rent that is due.
19. LANDLORD'S LIEN. In addition to the statutory landlord's lien, Tenant
grants to Landlord, to secure performance of Tenant's obligations hereunder, a
security interest in all goods (including equipment and inventory), fixtures,
and other personal property of Tenant situated on the Premises, and all proceeds
thereof (the "COLLATERAL"), and the Collateral shall not be removed from the
Premises without the prior written consent of Landlord (other than in Tenant's
ordinary course of business) until all obligations of Tenant have been fully
performed. Upon the occurrence of an Event of Default, Landlord may, in addition
to all other remedies, without notice or demand except as provided below,
exercise the rights afforded to a secured party under the New Jersey Uniform
Commercial Code (the "UCC"). To the extent the UCC requires Landlord to give to
Tenant notice of any act or event and such notice cannot be validly waived
before a default occurs, then five-days' prior written notice thereof shall be
reasonable notice of the act or event. Tenant grants to Landlord a power of
attorney to execute and file any financing statement or other instrument
necessary to perfect Landlord's security interest under this Section 19, which
power is coupled with an interest and is irrevocable during the Term. Landlord
may also file a copy of this Lease as a financing statement to perfect its
security interest in the Collateral.
20. SURRENDER OF PREMISES. No act by Landlord shall be deemed an
acceptance of a surrender of the Premises, and no agreement to accept a
surrender of the Premises shall be valid unless it is in writing and signed by
Landlord. At the expiration or termination of this Lease, Tenant shall deliver
to Landlord the Premises with all improvements located therein in good repair
and condition, broom-clean, reasonable wear and tear (and condemnation and
Casualty
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damage not caused by Tenant, as to which Sections 13 and 14 shall control)
excepted, and shall deliver to Landlord all keys to the Premises. Provided that
Tenant has performed all of its obligations hereunder, Tenant may remove all
unattached trade fixtures, furniture, and personal property placed in the
Premises by Tenant, and shall remove such alterations, additions, improvements,
trade fixtures, personal property, equipment, wiring, and furniture as Landlord
may request. Tenant shall repair all damage caused by such removal. All items
not so removed shall be deemed to have been abandoned by Tenant and may be
appropriated, sold, stored, destroyed, or otherwise disposed of by Landlord
without notice to Tenant and without any obligation to account for such items.
The provisions of this Section 20 shall survive the end of the Term.
21. HOLDING OVER. If Tenant fails to vacate the Premises at the end of the
Term, then Tenant shall be a tenant at will and, in addition to all other
damages and remedies to which Landlord may be entitled for such holding over,
Tenant shall pay, in addition to the other Rent, a daily Basic Rent equal to the
greater of (a) 150% of the daily Basic Rent payable during the last month of the
Term, or (b) 125% of the prevailing rental rate paid by other tenants under
recent, comparable leases in the Building for similar space. The provisions of
this Section 21 shall not be deemed to limit or constitute a waiver of any other
rights or remedies of Landlord provided herein or at law. If Tenant fails to
surrender the Premises upon the termination or expiration of this Lease, in
addition to any other liabilities to Landlord accruing therefrom, Tenant shall
protect, defend, indemnify and hold Landlord harmless from all loss, costs
(including reasonable attorneys' fees) and liability resulting from such
failure, including, without limiting the generality of the foregoing, any claims
made by any succeeding tenant founded upon such failure to surrender, and any
lost profits to Landlord resulting therefrom.
22. CERTAIN RIGHTS RESERVED BY LANDLORD. Provided that the exercise of
such rights does not unreasonably interfere with Tenant's occupancy of the
Premises, Landlord shall have the following rights:
(a) To decorate and to make inspections, repairs, alterations,
additions, changes, or improvements, whether structural or otherwise, in and
about the Building, or any part thereof; to enter upon the Premises and, during
the continuance of any such work, to temporarily close doors, entryways, public
space, and corridors in the Building; to interrupt or temporarily suspend for a
commercially reasonable time period Building services and facilities; to change
the name of the Building; and to change the arrangement and location of
entrances or passageways, doors, and doorways, corridors, elevators, stairs,
restrooms, or other public parts of the Building;
(b) To take such reasonable measures as Landlord deems advisable for
the security of the Building and its occupants; evacuating the Building for
cause, suspected cause, or for drill purposes; temporarily denying access to the
Building; and closing the Building after normal business hours and on Sundays
and holidays, subject, however, to Tenant's right to enter when the Building is
closed after normal business hours under such reasonable regulations as Landlord
may prescribe from time to time; and
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(c) To enter the Premises at reasonable hours to show the Premises
to prospective purchasers, lenders, or, during the last 12 months of the Term,
tenants.
23. SUBSTITUTION SPACE. [Intentionally Deleted.]
24. MISCELLANEOUS.
(a) LANDLORD TRANSFER. Landlord may transfer any portion of the
Building and any of its rights under this Lease. If Landlord assigns its rights
under this Lease, then Landlord shall thereby be released from any further
obligations hereunder, provided that the assignee assumes Landlord's obligations
hereunder in writing.
(b) LANDLORD'S LIABILITY. The liability of Landlord to Tenant for
any default by Landlord under the terms of this Lease shall be limited to
Tenant's actual direct, but not consequential, damages therefor and shall be
recoverable only from the interest of Landlord in the Building, and Landlord
shall not be personally liable for any deficiency. This Section shall not limit
any remedies which Tenant may have for Landlord's defaults which do not involve
the personal liability of Landlord.
(c) FORCE MAJEURE. Other than for Tenant's obligations under this
Lease that can be performed by the payment of money (e.g., payment of Rent and
maintenance of insurance), whenever a period of time is herein prescribed for
action to be taken by either party hereto, such party shall not be liable or
responsible for, and there shall be excluded from the computation of any such
period of time, any delays due to strikes, riots, acts of God, shortages of
labor or materials, war, governmental laws, regulations, or restrictions, or any
other causes of any kind whatsoever which are beyond the control of such party.
(d) BROKERAGE. Neither Landlord nor Tenant has dealt with any broker
or agent in connection with the negotiation or execution of this Lease, other
than Insignia/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Company, Inc. and ▇▇▇▇ Management Services, Inc.,
whose commissions shall be paid by Landlord. Tenant and Landlord shall each
indemnify the other against all costs, expenses, attorneys' fees, and other
liability for commissions or other compensation claimed by any broker or agent
claiming the same by, through, or under the indemnifying party.
(e) ESTOPPEL CERTIFICATES. From time to time, Tenant shall furnish
to any party designated by Landlord, within ten days after Landlord has made a
written request therefor, a certificate signed by Tenant confirming and
containing such factual certifications and representations as to this Lease as
Landlord may reasonably request.
(f) NOTICES. All notices and other communications given pursuant to
this Lease shall be in writing and shall be (1) mailed by first class, United
States Mail, postage prepaid, certified, with return receipt requested, and
addressed to the parties hereto at the address specified next to their signature
block, (2) hand delivered to the intended address, or (3) sent by prepaid
telegram, cable, facsimile transmission, or telex followed by a confirmatory
letter. All notices shall be effective upon delivery to the address of the
addressee. The parties hereto may
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change their addresses by giving notice thereof to the other in conformity with
this provision.
(g) SEPARABILITY. If any clause or provision of this Lease is
illegal, invalid, or unenforceable under present or future laws, then the
remainder of this Lease shall not be affected thereby and in lieu of such clause
or provision, there shall be added as a part of this Lease a clause or provision
as similar in terms to such illegal, invalid, or unenforceable clause or
provision as may be possible and be legal, valid, and enforceable.
(h) AMENDMENTS; AND BINDING EFFECT. This Lease may not be amended
except by instrument in writing signed by Landlord and Tenant. No provision of
this Lease shall be deemed to have been waived by Landlord unless such waiver is
in writing signed by Landlord, and no custom or practice which may evolve
between the parties in the administration of the terms hereof shall waive or
diminish the right of Landlord to insist upon the performance by Tenant in
strict accordance with the terms hereof. The terms and conditions contained in
this Lease shall inure to the benefit of and be binding upon the parties hereto,
and upon their respective successors in interest and legal representatives,
except as otherwise herein expressly provided. This Lease is for the sole
benefit of Landlord and Tenant, and, other than Landlord's Mortgagee, no third
party shall be deemed a third party beneficiary hereof.
(i) QUIET ENJOYMENT. Provided Tenant has performed all of its
obligations hereunder, Tenant shall peaceably and quietly hold and enjoy the
Premises for the Term, without hindrance from Landlord or any party claiming by,
through, or under Landlord, but not otherwise, subject to the terms and
conditions of this Lease.
(j) NO MERGER. There shall be no merger of the leasehold estate
hereby created with the fee estate in the Premises or any part thereof if the
same person acquires or holds, directly or indirectly, this Lease or any
interest in this Lease and the fee estate in the leasehold Premises or any
interest in such fee estate.
(k) NO OFFER. The submission of this Lease to Tenant shall not be
construed as an offer, and Tenant shall not have any rights under this Lease
unless Landlord executes a copy of this Lease and delivers it to Tenant.
(l) ENTIRE AGREEMENT. This Lease constitutes the entire agreement
between Landlord and Tenant regarding the subject matter hereof and supersedes
all oral statements and prior writings relating thereto. Except for those set
forth in this Lease, no representations, warranties, or agreements have been
made by Landlord or Tenant to the other with respect to this Lease or the
obligations of Landlord or Tenant in connection therewith. The normal rule of
construction that any ambiguities be resolved against the drafting party shall
not apply to the interpretation of this Lease or any exhibits or amendments
hereto.
(m) WAIVER OF JURY TRIAL. To the maximum extent permitted by law,
Landlord and Tenant each waive right to trial by jury in any litigation arising
out of or with respect to this Lease.
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(n) GOVERNING LAW. This Lease shall be governed by and construed in
accordance with the laws of the State in which the Premises are located.
(o) JOINT AND SEVERAL LIABILITY. If Tenant is comprised of more than
one party, each such party shall be jointly and severally liable for Tenant's
obligations under this Lease.
(p) FINANCIAL REPORTS. Within 15 days after Landlord's written
request, Tenant will furnish Tenant's most recent audited financial statements
(including any notes to them) to Landlord, or, if no such audited statements
have been prepared, such other financial statements (and notes to them) as may
have been prepared by an independent certified public accountant or, failing
those, Tenant's internally prepared financial statements. Tenant will discuss
its financial statements with Landlord and will give Landlord access to Tenant's
books and records in order to enable Landlord to verify the financial
statements. Landlord will not disclose any aspect of Tenant's financial
statements that Tenant designates to Landlord as confidential except (1) to
Landlord's lenders or prospective purchasers of the Building, (2) in litigation
between Landlord and Tenant, and (3) if required by court order.
(q) LANDLORD'S FEES. Whenever Tenant requests Landlord to take any
action or give any consent required or permitted under this Lease, Tenant will
reimburse Landlord for Landlord's reasonable costs incurred in reviewing the
proposed action or consent, including without limitation reasonable attorneys',
engineers' or architects' fees, within 30 days after Landlord's delivery to
Tenant of a statement of such costs. Tenant will be obligated to make such
reimbursement without regard to whether Landlord consents to any such proposed
action.
(r) TELECOMMUNICATIONS. Tenant and its telecommunications companies,
including but not limited to local exchange telecommunications companies and
alternative access vendor services companies shall have no right of access to
and within the Building, for the installation and operation of
telecommunications systems including but not limited to voice, video, data, and
any other telecommunications services provided over wire, fiber optic,
microwave, wireless, and any other transmission systems, for part or all of
Tenant's telecommunications within the Building and from the Building to any
other location without Landlord's prior written consent, which shall not be
unreasonably withheld, delayed or conditioned.
(s) GENERAL DEFINITIONS. The following terms shall have the
following meanings: "LAWS" means all federal, state, and local laws, rules and
regulations, all court orders, all governmental directives and governmental
orders, and all restrictive covenants affecting the Property, and "LAW" means
any of the foregoing; "AFFILIATE" means any person or entity which, directly or
indirectly, controls, is controlled by, or is under common control with the
party in question; "TENANT PARTY" shall include Tenant, any assignees claiming
by, through, or under Tenant, any subtenants claiming by, through, or under
Tenant, and any agents, contractors, employees, invitees of the foregoing
parties; and "INCLUDING" means including, without
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limitation.
(t) CONFIDENTIALITY. Tenant acknowledges that the terms and
conditions of this Lease are to remain confidential for Landlord's benefit, and
may not be disclosed by Tenant to anyone, by any manner or means, directly or
indirectly, without Landlord's prior written consent. The consent by Landlord to
any disclosures shall not be deemed to be a waiver on the part of Landlord of
any prohibition against any future disclosure.
(u) LIST OF EXHIBITS. All exhibits and attachments attached hereto
are incorporated herein by this reference.
Exhibit A - Outline of Premises
Exhibit B - Legal Description of Building
Exhibit C - Building Rules and Regulations
Exhibit D - Tenant Finish-Work: Allowance
Exhibit E - Parking
Exhibit F - Renewal Option
(v) ATTORNEYS' FEES. In the event of any action or proceeding
brought by either party against the other under this Lease, the prevailing party
shall be entitled to recover its actual out-of-pocket attorneys' fees in such
action or proceeding.
25. OTHER PROVISIONS.
(a) HAZARDOUS SUBSTANCES. Neither Tenant nor any Tenant Party shall
cause or permit any Hazardous Substance to be used, stored, generated, or
disposed of on, in or about the Property by Tenant or any Tenant Party without
first obtaining Landlord's written consent. If Hazardous Substances are used,
stored, generated, or disposed of on, in or about the Property by Tenant or any
Tenant Party or if the Premises becomes contaminated in any manner by Tenant or
any Tenant Party, Tenant shall indemnify, defend and hold harmless the Landlord
(and its agents and employees) for any and all claims, damages, fines,
judgments, penalties, costs, liabilities, or losses (including, without
limitation, a decrease in value of the Premises or the Land or Building of which
they are a part, damages caused by loss or restriction of rentable or usable
space, or any damages cause by adverse impact on marketing of the space, and any
and all sums paid for settlement of claims, attorney's fees, consultant, and
expert fees) arising during or after the Term and arising as a result of any
use, storage, generation or disposal of any Hazardous Substance or any such
contamination by Tenant or any Tenant Party. This indemnification includes,
without limitation, any and all costs incurred because of any investigation in
connection with Tenant or any Tenant Party of the site or any cleanup, removal,
or restoration mandated by a federal, state, or local agency or political
subdivision. If Tenant or any Tenant Party causes or permits the present of any
Hazardous Substance on the Property that results in contamination, Tenant shall
promptly, at its sole expense, take any and all necessary actions to return the
Property to the condition existing prior to the presence of any such Hazardous
Substance on the Property. Tenant shall first obtain Landlord's approval for any
such remedial action, which approval shall
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not be unreasonably withheld, delayed or conditioned. As used herein, "HAZARDOUS
SUBSTANCE" means any substance that is toxic, ignitable, reactive, or corrosive
regardless whether same is regulated by any local government, the State of New
Jersey, or the United States Government, other than normal cleaning materials
customarily used in cleaning office buildings so long as such materials are
stored and used in compliance with all Laws. "HAZARDOUS SUBSTANCE" includes, but
is not limited to any toxic or hazardous substance and any and all material or
substances that are defined as "hazardous waste," "extremely hazardous waste",
or a "hazardous substance" pursuant to state, federal, or local governmental law
including but not limited to the Spill and Compensation and Control Act,
N.J.S.A. 58:10-23.11 et seq. "HAZARDOUS SUBSTANCE" includes but is not
restricted to asbestos, polycholorbiphenyls ("PCBS"), petroleum and petroleum
products. Tenant may use toners in copying operations and ammonium in blue
printing, provided such use and the storage and disposal of same are in
compliance with Law.
(b) ISRA OBLIGATIONS. Tenant will not engage in any activity which
would subject Tenant to the provisions of the Industrial Site Recovery Act
N.J.S.A. 13-1K-6 et and the regulations promulgated thereunder (collectively,
"ISRA") if applicable to the occupancy of the Premises by Tenant pursuant to
this Lease or otherwise. If, for any reason, Tenant is hereafter subjected to
the provisions of ISRA, Tenant shall, at its sole cost and expense, comply
therewith. Tenant will not engage in any activity which would subject the Tenant
to the provisions of the Federal Comprehensive Environmental Response, Liability
and Clean-Up Act, 42 U.S.C.A. Section 9601 et seq, the Resource Conservation and
Recovery Act, 42 U.S.C.A. Section 6901 et seq, the Toxic Substances Control Act,
7 U.S.C.A. Section 136 et seq, the Occupations Safety and Health Act of 1970, 29
U.S.C.A. Section 651 et seq, the Emergency Planning and Community Right to Know
Act of 1986, 42 U.S.C.A. Section 11001 et seq, the Safe Drinking Water Act 42
U.S.C.A. Section 300f et seq, the Hazardous and Solid Waste Amendments of 1984,
P.I. 86-616, the Hazardous Materials Transportation Act, 49 U.S.C.A. Section
1801 et seq, the Federal Clean Air Act, 42 U.S.C.A. Section 7401 et seq, the
Federal Water Pollution Control Act, 33 U.S.C.A. Section 1151 et seq, the Clean
Water Act of 1977, 33 U.S.C.A., 1251 et seq, the Underground Storage of
Hazardous Substances Act, N.J.S.A. Section 58:10A-21 et seq, the Spill
Compensation and Control Act, N.J.S.A. Section 58:10A-23.11 et seq, the Water
Pollution Control Act N.J.S.A. Section 58:10A-1 et seq, or any other federal,
state or local environmental law, regulation, or ordinance.
(c) INDEMNITY. Tenant shall indemnify, defend and save harmless
Landlord from and against all fines, suits, procedures, claims, actions,
damages, liabilities, judgments, costs and expenses (including, without
limitation reasonable attorneys' fees) of any kind arising out of or in any way
connected with Tenant's any other Tenant Party whose actions or omissions or
failure to maintain the Premises results in any spills or discharges of
Hazardous Substances, hazardous wastes or pollutants at or within the Premises,
the Building, or the property which occur during the term of this Lease; and
from all fines, suites, procedures, claims, actions, damages, liabilities,
judgements, costs and expense (including but not limited to reasonable
attorney's fees) of any kind arising out of Tenant's failure to provide all
information, make all submissions, and take all actions necessary to comply with
all of the provisions of all applicable federal, state, and local environmental
laws, regulations, rules, and ordinances, whether or not
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specifically described in this Section 25.(c) Tenant's obligations and
liabilities under this Section 25.(c) shall continue after expiration of the
term of this Lease, including any extensions thereof for so long as Landlord
remains liable or responsible for any spills or discharges of Hazardous
Substances or wastes or other pollutants at the Premises or the Building of the
property which occur during the term of this Lease.
(d) ENVIRONMENTAL REPORT. Landlord has provided to Tenant a copy of
a Phase I Environmental Site Assessment (Fugro Job No. 16-90-1469), ("REPORT")
with respect to the Land, dated February 19, 1997, prepared by Fugro East, Inc.
("CONSULTANT"). Tenant agrees not to release the Report, or a copy of it, or any
part of it, or disclose any of the information contained in the Report to any
third party (other than Tenant's counsel) without the express prior written
consent of Landlord. Such consent shall not be unreasonably withheld as long as
the proposed party to whom the report is given executes a letter agreement
containing covenants similar to this Section 25.(d). Tenant releases Landlord
for any inaccuracies, omissions, or errors contained in the Report. Tenant
agrees that it will not rely on the Report and it will make whatever independent
investigation it feels is necessary to investigate the environmental and other
conditions of the Land. Tenant agrees that Landlord has no duty to provide it
with the Report, to correct any inaccuracies, errors, or omission in the Report,
to supplement the Report with any additional information, or to provide Tenant
with any information concerning the environmental conditions of the Land. Tenant
agrees that Landlord considers the Report to be confidential proprietary
information and Tenant agrees to maintain the confidentiality and security of
the Report information in accordance with the highest standards of
confidentiality and security associated with the protection of "trade secrets."
Landlord hereby expressly disclaims responsibility for the investigation of the
Land by Tenant and further disclaims any responsibility for the contents of the
Report. Tenant's obligations pursuant to this Section 25.(d) shall survive the
expiration or termination of this Lease.
(e) LANDLORD'S ENVIRONMENTAL REPRESENTATION. Landlord represents and
warrants to Tenant that to the best of Landlord's actual knowledge, Landlord has
not received written notice of any Hazardous Substance on the Land or the
Premises in violation of any Environmental Law except as may be disclosed in the
Report. Landlord and Tenant each specifically acknowledge and agree that all
references in this Lease to the phrase "to the best of Landlord's actual
knowledge" (or other similar phrase) (1) shall mean the actual (not
constructive) personal knowledge of Wm. ▇▇▇▇▇ ▇▇▇▇▇▇ of Archon Group, L.P.
("LANDLORD'S PERSONNEL"), without any duty of inquiry; (2) shall in no case mean
or refer to the actual or constructive knowledge of any other employee, trustee,
partner, agent or partner of a partner, officer, director or other
representative of Landlord, Archon Group, L.P. or any investment advisor,
attorney, contractor or representative of Landlord (together with Landlord's
Personnel, "LANDLORD'S REPRESENTATIVES"); and (3) shall in no event or
circumstance impose upon Landlord or any of Landlord's Representatives any duty
or obligation to verify, inquire or make any independent inquiry or
investigation of any such representation, warranty or statement, or to otherwise
investigate the facts or circumstances relating or otherwise pertinent thereto.
Tenant further acknowledges and agrees that none of Landlord's Representatives
shall be personally liable, or otherwise have any personal liability, under or
in connection with this Lease, including
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without limitation, in connection with any of the representations, warranties or
statements made in connection with, or pursuant to, this Lease.
(f) VENDING MACHINE AREA. Prior to August 1, 1997, Landlord shall
install a vending machine area in the common areas of the Building for the
common use of tenants in the Building.
(g) LANDLORD'S WORK. Contemporaneously with the performance of the
Work (as defined in Exhibit D hereto), Landlord shall remove, at its sole cost
and expense, (1) the existing internal stairway affecting the Premises, and (2)
the existing Liebert units in the Premises and the raised flooring, together
with any piping or wiring equipment associated with such Liebert units.
(h) SIGNAGE RIGHTS. Landlord shall provide Tenant directory signage
in the lobby area of the Building and any other additional signage rights
similarly given to all of the tenants in the Building.
LANDLORD AND TENANT EXPRESSLY DISCLAIM ANY IMPLIED WARRANTY THAT THE
PREMISES ARE SUITABLE FOR TENANT'S INTENDED COMMERCIAL PURPOSE, AND TENANT'S
OBLIGATION TO PAY RENT HEREUNDER IS NOT DEPENDENT UPON THE CONDITION OF THE
PREMISES OR THE PERFORMANCE BY LANDLORD OF ITS OBLIGATIONS HEREUNDER, AND,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, TENANT SHALL CONTINUE TO PAY THE
RENT, WITHOUT ABATEMENT, SETOFF OR DEDUCTION, NOTWITHSTANDING ANY BREACH BY
LANDLORD OF ITS DUTIES OR OBLIGATIONS HEREUNDER, WHETHER EXPRESS OR IMPLIED.
NOTHING IN THIS PARAGRAPH SHALL BE CONSTRUED TO DIMINISH THE OBLIGATIONS OF
LANDLORD THAT ARE EXPRESSLY SET FORTH ELSEWHERE IN THIS LEASE.
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Dated as of the date first above written.
TENANT:
DIGITAL SOLUTIONS, INC.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President and CEO
Prior to Commencement Date:
---------------------------
Digital Solutions, Inc.
▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Project Manager
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
After Commencement Date:
------------------------
Digital Solutions, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Project Manager
Telecopy:
---------------------
LANDLORD:
WHATR REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership
By: WHATR Gen-Par, Inc., a Delaware
corporation, General Partner
By:
Name:
Title:
Address: WHATR Real Estate Limited
Partnership
c/▇ ▇▇▇▇ Management Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ (fax)
With a copy to:
Archon Group, L.P.
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Asset Manager
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
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EXHIBIT A
[OUTLINE OF PREMISES]
A-1
34
EXHIBIT B
[LEGAL DESCRIPTION OF BUILDING]
All that certain tract, parcel and lot of land lying and being situate in the
Township of Franklin, County of Somerset, State of New Jersey, being more
particularly described as follows:
Being known as Block 468.01, Lot 21.06 as shown on a map entitled "amended
Section Two of the Atrium at Somerset, Township of Franklin, Somerset County,
New Jersey" filed in the Somerset County Clerk's office December 14, 1983 as Map
Number 2067. Being further described as beginning at a point in the most
southeasterly line of the whole tract of which this is a part being distant
1050.23 feet along said outside line on a course of North 48 degrees 54 minutes
40 seconds East from the most southerly corner of the whole tract of which this
is a part and corner of the lands of Worlds Fair Associates and running; thence
1. Along the northeasterly line of Lot 21.08 as shown on said map on a course
of North 40 degrees 51 minutes 00 seconds West a distance of 308.94 feet
to a point; thence
2. Still along said line of Lot 21.08 in a northwesterly direction along a
curve to the right having a radius of 60.00 feet an arc distance of
79.54 feet to a point; thence
3. Along the southeasterly line of Lot 21.07 as shown on said map on a course
of North 48 degrees 44 minutes 36 seconds East a distance of 115.14 feet
to a point; thence
4. Along the northeasterly line of lot 21.07 as shown on said map in a
northwesterly direction along a curve to the left having a radius of
60.00 feet an arc distance of 30.17 feet to a point; thence
5. Still along said line of Lot 21.07 in a northwesterly direction along a
curve to the right having a radius of 40.00 feet an arc distance of
31.82 feet to a point; thence
6. Still along said line of Lot 21.07 on a course of North 40 degrees 51
minutes 00 seconds West a distance of 319.66 feet to a point; thence
7. On a course of North 48 degrees 49 minutes 16 seconds East a distance
of 58.43 feet to a point; thence
8. Still along the southeasterly line of Lot 21.03 as shown on a map entitled
"amended section one of the atrium at Somerset" filed in the Somerset
County Clerk's office June 4, 1982 as Map Number 1963, on a course of
North 48 degrees 35 minutes 40 seconds East a distance of 324.59 feet to a
point; thence
B-3
35
9. Still along said line of Lot 21.03 in a northerly direction along a
curve to the left having a radius of 195.00 feet an arc distance of
192.08 feet to a point; thence
10. Still along said line of Lot 21.03 on a course of North 7 degrees 50
minutes 38 seconds West a distance of 7.40 feet to a point; thence
11. Still along said line of Lot 21.03 in a northwesterly direction along a
curve to the left having a radius of 35.00 feet an arc distance of
48.34 feet to a point; thence
12. Still along a line of Lot 21.03 on a course of North 3 degrees 00
minutes 57 seconds East a distance of 60.00 feet; thence
13. Along the southerly line of Lot 21.04 as shown on said map of Section One
in an easterly direction along a curve to the left having a radius of
250.00 feet an arc distance of 193.82 feet to a point; thence
14. Still along said line of Lot 21.04 on a course of North 48 degrees 35
minutes 40 seconds East a distance of 175.00 feet to a point; thence
15. Along the southwesterly line of Lot 21.05 as shown on said map of Section
Two in an easterly direction along a curve to the right having a radius of
110.00 feet an arc distance of 172.79 feet to a point; thence
16. Still along said line of Lot 21.05 on a course of South 41 degrees 24
minutes 20 seconds East a distance of 250.00 feet to a point; thence
17. Still along said line of Lot 21.05 and the southwesterly line of Lot 21.09
in a southeasterly direction along a curve to the left having a radius of
40.00 feet an arc distance of 31.82 feet to a point; thence
18. Still along said line of Lot 21.09 in a southeasterly direction along a
curve to the right having a radius of 60.00 feet an arc distance of
99.02 feet to a point; thence
19. Still along said line of Lot 21.09 South 55 degrees 57 minutes 41
seconds East a distance of 290.11 feet to a point; thence
20. Along an outside line of the whole tract of which this is a part on a
course of South 15 degrees 35 minutes 50 seconds East a distance of 97.02
feet to a point; thence
21. Still along an outside line of the whole tract on a course of South 48
degrees 37 minutes 00 seconds West a distance of 904.26 feet to a
point; thence
22. Still along an outside line of the whole tract on a course of South 39
degrees 47 minutes 00 seconds East a distance of 17.16 feet to a point;
thence
B-4
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23. Still along an outside line of the whole tract on a course of South 48
degrees 54 minutes 40 seconds West a distance of 249.51 feet to a point
being the point or place of beginning.
Together with an easement being identified as follows:
Together with an subject to all of the right title and interest of S/A
Associates In, to and under that certain Declaration of Easements dated April
15, 1982 by S/A Associates recorded in Deed Book 1457 Page 828 on April 20,
1982, as amended by Amendment to Declaration of Easements dated April 15, 1983
by S/A Associates and recorded in Deed Book 1488 Page 315 on September 16, 1983
The above description is in accordance with a survey prepared by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, P.L.S. dated July 30, 1996 and last revised to August 22, 1996.
Lot 21.06, Block 468.1, on the Official Tax Map of Franklin Township
B-5
37
EXHIBIT C
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply to the Premises, the
Building, the parking garage associated therewith, and the appurtenances
thereto:
1. Sidewalks, doorways, vestibules, halls, stairways, and other similar
areas shall not be obstructed by tenants or used by any tenant for purposes
other than ingress and egress to and from their respective leased premises and
for going from one to another part of the Building.
2. Plumbing, fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable material
shall be thrown or deposited therein. Damage resulting to any such fixtures or
appliances from misuse by a tenant or its agents, employees or invitees, shall
be paid by such tenant.
3. No signs, advertisements or notices shall be painted or affixed on or
to any windows or doors or other part of the Building without the prior written
consent of Landlord. No nails, hooks or screws shall be driven or inserted in
any part of the Building except by Building maintenance personnel. No curtains
or other window treatments shall be placed between the glass and the Building
standard window treatments.
4. Landlord shall provide and maintain an alphabetical directory for all
tenants in the main lobby of the Building.
5. Landlord shall provide all door locks in each tenant's leased premises,
at the cost of such tenant, and no tenant shall place any additional door locks
in its leased premises without Landlord's prior written consent, which consent
shall not be unreasonably withheld, delayed or conditioned. Landlord shall
furnish to each tenant a reasonable number of keys to such tenant's leased
premises, at such tenant's cost, and no tenant shall make a duplicate thereof.
6. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by tenants of any bulky material, merchandise or materials
which require use of elevators or stairways, or movement through the Building
entrances or lobby shall be conducted under Landlord's supervision at such times
and in such a manner as Landlord may reasonably require. Each tenant assumes all
risks of and shall be liable for all damage to articles moved and injury to
persons or public engaged or not engaged in such movement, including equipment,
property and personnel of Landlord if damaged or injured as a result of acts in
connection with carrying out this service for such tenant.
7. Landlord may prescribe weight limitations and determine the locations
for safes and other heavy equipment or items, which shall in all cases be placed
in the Building so as to distribute weight in a manner acceptable to Landlord
which may include the use of such
C-2
38
supporting devices as Landlord may require. All damages to the Building caused
by the installation or removal of any property of a tenant, or done by a
tenant's property while in the Building, shall be repaired at the expense of
such tenant.
8. Corridor doors, when not in use, shall be kept closed. Nothing shall be
swept or thrown into the corridors, halls, elevator shafts or stairways. No
birds or animals shall be brought into or kept in, on or about any tenant's
leased premises. No portion of any tenant's leased premises shall at any time be
used or occupied as sleeping or lodging quarters.
9. Tenant shall cooperate with Landlord's employees in keeping its leased
premises neat and clean. Tenants shall not employ any person for the purpose of
such cleaning other than the Building's cleaning and maintenance personnel.
10. To ensure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, etc. shall be delivered to any leased area except by
persons approved by Landlord.
11. Tenant shall not make or permit any vibration or improper,
objectionable or unpleasant noises or odors in the Building or otherwise
interfere in any way with other tenants or persons having business with them.
12. No machinery of any kind (other than normal office equipment) shall be
operated by any tenant on its leased area without Landlord's prior written
consent, which consent shall not be unreasonable withheld, delayed or
conditioned, nor shall any tenant use or keep in the Building any flammable or
explosive fluid or substance.
13. Landlord will not be responsible for lost or stolen personal property,
money or jewelry from tenant's leased premises or public or common areas
regardless of whether such loss occurs when the area is locked against entry or
not.
14. No vending or dispensing machines of any kind may be maintained in any
leased premises without the prior written permission of Landlord.
15. Tenant shall not conduct any activity on or about the Premises or
Building which will draw pickets, demonstrators, or the like.
16. All vehicles are to be currently licensed, in good operating
condition, parked for business purposes having to do with Tenant's business
operated in the Premises, parked within designated parking spaces, one vehicle
to each space. No vehicle shall be parked as a "billboard" vehicle in the
parking lot. Any vehicle parked improperly may be towed away. Tenant, Tenant's
agents, employees, vendors and customers who do not operate or park their
vehicles as required shall subject the vehicle to being towed at the expense of
the owner or driver. Landlord may place a "boot" on the vehicle to immobilize it
and may levy a charge of $50.00 to remove the "boot." Tenant shall indemnify,
hold and save harmless Landlord of any liability arising from
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the towing or booting of any vehicles belonging to a Tenant Party.
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EXHIBIT D
TENANT FINISH-WORK: ALLOWANCE
1. Except as set forth in this Exhibit, Tenant accepts the Premises in
their "AS-IS" condition on the date that this lease is entered into.
2. On or before ________________, 1997, Tenant shall provide to Landlord
for its approval final working drawings, prepared by an architect that has been
approved by Landlord (which approval shall not unreasonably be withheld), of all
improvements that Tenant proposes to install in the Premises; such working
drawings shall include the partition layout, ceiling plan, electrical outlets
and switches, telephone outlets, drawings for any modifications to the
mechanical and plumbing systems of the Building, and detailed plans and
specifications for the construction of the improvements called for under this
Exhibit in accordance with all applicable governmental laws, codes, rules, and
regulations. If Tenant fails to timely deliver such drawings, then each day
after _____________, 1997, that such drawings are not delivered to Landlord
shall be a Tenant Delay Day (defined below). Further, if any of Tenant's
proposed construction work will affect the Building's HVAC, electrical,
mechanical, or plumbing systems, then the working drawings pertaining thereto
must be approved by the Building's engineer of record. Landlord's approval of
such working drawings shall not be unreasonably withheld, provided that (a) they
comply with all laws, rules, and regulations, (b) such working drawings are
sufficiently detailed to allow construction of the improvements in a good and
workmanlike manner, and (c) the improvements depicted thereon conform to the
rules and regulations promulgated from time to time by Landlord for the
construction of tenant improvements (a copy of which has been delivered to
Tenant). As used herein, "WORKING DRAWINGS" shall mean the final working
drawings approved by Landlord, as amended from time to time by any approved
changes thereto, and "WORK" shall mean all improvements to be constructed in
accordance with and as indicated on the Working Drawings. Landlord's approval of
the Working Drawings shall not be a representation or warranty of Landlord that
such drawings are adequate for any use or comply with any law, but shall merely
be the consent of Landlord thereto. Tenant shall, at Landlord's request, sign
the Working Drawings to evidence its review and approval thereof. All changes in
the Work must receive the prior written approval of Landlord, and in the event
of any such approved change Tenant shall, upon completion of the Work, furnish
Landlord with an accurate, reproducible "as-built" plan of the improvements as
constructed.
3. The Work shall be performed only by contractors and subcontractors
approved in writing by Landlord, which approval shall not be unreasonably
withheld. All contractors and subcontractors shall be required to procure and
maintain insurance against such risks, in such amounts, and with such companies
as Landlord may reasonably require. Certificates of such insurance, with paid
receipts therefor, must be received by Landlord before the Work is commenced.
The Work shall be performed in a good and workmanlike manner free of defects,
shall conform strictly with the Working Drawings, and shall be performed in such
a manner and at such times as and not to interfere with or delay Landlord's
other contractors, the operation of
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the Building, and the occupancy thereof by other tenants. All contractors and
subcontractors shall contact Landlord and schedule time periods during which
they may use Building facilities in connection with the Work (e.g., elevators,
excess electricity, etc.).
4. If a delay in the performance of the Work occurs (a) because of any
change by Tenant to the Space Plans or the Working Drawings, (b) because of any
specification by Tenant of materials or installations in addition to or other
than Landlord's standard finish-out materials, or (c) if Tenant or Tenant's
agents otherwise delays completion of the Work, then, notwithstanding any
provision to the contrary in this Lease, Tenant's obligation to pay Rent
hereunder shall commence on the scheduled Commencement Date (each day of delay
caused by any such event shall be a "TENANT DELAY DAY"). If the Premises are not
ready for occupancy and the Work is not substantially completed (as reasonably
determined by Landlord, but in no event earlier than the date on which Landlord
obtains a preliminary or permanent certificate of occupancy for the Premises) on
the scheduled Commencement Date for any reason other than the reasons specified
in the immediately preceding sentence, then the obligations of Landlord and
Tenant shall continue in full force and Rent shall be abated until the date the
Work is substantially completed less the number of Tenant Delay Days, which date
shall be the Commencement Date.
5. The entire cost of performing the Work (including, without limitation,
design of the Work and preparation of the Working Drawings, costs of
construction labor and materials, electrical usage during construction,
additional janitorial services, general tenant signage, related taxes and
insurance costs, all of which costs are herein collectively called the "TOTAL
CONSTRUCTION COSTS") in excess of the Construction Allowance (hereinafter
defined) shall be paid by Tenant. Upon approval of the Working Drawings and
selection of a contractor, Tenant shall promptly (a) execute a work order
agreement prepared by Landlord which identifies such drawings and itemizes the
Total Construction Costs and sets forth the Construction Allowance, and (b) pay
to Landlord 50% of the amount by which Total Construction Costs exceed the
Construction Allowance. Upon substantial completion of the Work, Tenant shall
pay to Landlord an amount equal to the Total Construction Costs (as adjusted for
any approved changes to the Work), less (1) the amount of the advance payment
already made by Tenant, (2) the amount of the Construction Allowance, and (3)
the cost reasonably estimated by Landlord for completing all "punch list" items.
Tenant shall pay to Landlord the costs incurred in completing the punch list
items upon completion thereof.
6. Landlord shall provide to Tenant a construction allowance (the
"CONSTRUCTION ALLOWANCE") equal to the lesser of (a) $26.00 per rentable square
foot in the Premises or (b) the Total Construction Costs, as adjusted for any
approved changes to the Work.
7. To the extent not inconsistent with this Exhibit, Section 7.(a) of this
Lease shall govern the performance of the Work and Landlord's and Tenant's
respective rights and obligations regarding the improvements installed pursuant
thereto.
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EXHIBIT E
PARKING
Tenant may use fifty-one (51) undesignated parking spaces in the parking
area associated with the Building (the "PARKING AREA") during the initial Term
at no cost to Tenant and subject to such terms, conditions and regulations as
are from time to time charged or applicable to patrons of the Parking Area.
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▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ OPTION
Provided no Event of Default exists and Tenant is occupying the entire
Premises at the time of such election, Tenant may renew this Lease for two (2)
additional periods of five (5) years each, by delivering written notice of the
exercise thereof to Landlord not later than nine (9) months before the
expiration of the initial Term. On or before the commencement date of the
extended Term in question, Landlord and Tenant shall execute an amendment to
this Lease extending the Term on the same terms provided in this Lease, except
as follows:
(a) The Basic Rent payable for each month during the first extended
Term shall be ninety-five percent (95%) of the prevailing rental rate, at the
commencement of such extended Term, for space of equivalent quality, size,
utility and location, with the length of the extended Term and the credit
standing of Tenant to be taken into account;
(b) The Basic Rent payable for each month during the second extended
Term shall be one hundred percent (100%) of the prevailing rental rate, at the
commencement of such extended Term, for space of equivalent quality, size,
utility and location, with the length of the extended Term and the credit
standing of Tenant to be taken into account;
(c) Tenant shall have no further renewal options unless expressly
granted by Landlord in writing; and
(d) Landlord shall lease to Tenant the Premises in their
then-current condition, and Landlord shall not provide to Tenant any allowances
(e.g., moving allowance, construction allowance, and the like) or other tenant
inducements.
Tenant's rights under this Exhibit shall terminate if (1) this Lease or
Tenant's right to possession of the Premises is terminated, (2) Tenant assigns
any of its interest in this Lease or sublets any portion of the Premises or (3)
Tenant fails to timely exercise its option under this Exhibit, time being of the
essence with respect to Tenant's exercise thereof.
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