SADDLE RIVER EXECUTIVE CENTRE
ONE ROUTE 17 SOUTH
SADDLE RIVER, NEW JERSEY
STANDARD OFFICE LEASE
1. Basic Lease Provisions.
1.1. Parties: This Lease, dated for reference purposes only November 20,
2003, is made by and between VRS SADDLE RIVER LLC, a Virginia limited
liability company ("Landlord") and PDI, INC., a Delaware corporation
("Tenant"). The Tenant's Employer Identification Number is 22-2919486.
1.2 Premises: Entire Third (3rd) Floor, portion of the Second (2nd) Floor
and Entire First (1st) Floor, as shown on Exhibit A attached hereto
and known as Suite 300.
1.3. Rentable Area of Premises: Approximately 84,122 rentable square feet,
consisting of 46,912 rentable square feet on the third (3rd) floor,
21,190 rentable square feet on the second (2nd) floor and 16,020
rentable square feet on the first (1st) floor.
1.4. Building Address: One Route 17 South, Saddle River, Bergen County, New
Jersey.
1.5. Use: General administrative office use, subject to the requirements
and limitations contained in Section 7.
1.6. Term: Approximately twelve (12) years commencing on the Commencement
Date, as defined below and expiring January 31, 2016, unless sooner
terminated pursuant to the Term of the Lease.
1.7. Possession Date/Commencement Date:
a. Possession Date: The date that Landlord delivers possession of the
Premises to Tenant for purposes of Tenant constructing the
Improvements, as more particularly described in Schedule 1 attached
hereto with Landlord's Work, as defined in Schedule 1-A, Substantially
Completed, which is estimated to be on or about the date which is
sixty (60) days following the date on which this Lease is executed by
both Landlord and Tenant, whichever signs later.
b. Commencement Date: The date Tenant commences the conduct of its
business from the Premises.
The period between the Possession Date and the Commencement Date shall
be referred to herein as the Construction Period, as more particularly
defined in Paragraph 4 of Schedule 1-B.
1.8. Base Rent:
Months: Commencement Date-01/31/06 $24.75 per rentable square foot per annum
02/01/06-01/31/09 $25.75 per rentable square foot per annum
02/01/09-01/31/12 $26.75 per rentable square foot per annum
02/01/12-01/31/14 $27.75 per rentable square foot per annum
02/01/14-01/31/16 $28.75 per rentable square foot per annum
See Addendum Paragraph 1
1.9. Base Rent Paid Upon the Commencement Date: Tenant will deposit with
Landlord the sum of $173,501.62 for the Base Rent due for January,
2005 and February, 2005.
1.10. Security Deposit: $2,000,000.00.
See Addendum Paragraph 3
1.11. Tenant's Share (i.e. proportionate share for purposes of Operating
Expense Increases): 79.39%.
1.12. Base Year is the calendar year 2004.
1.13. Number of Parking Spaces: See Addendum Paragraph 6
1.14. Initial Monthly Parking Rates Per Space: Reserved: $0.00; Unreserved:
$0.00 .
1.15. Real Estate Broker(s): Kwartler Associates, Inc. and CB Richard Ellis
Real Estate Services, Inc.
1.16. Attachments to Lease: Addendum; Exhibit A - "Premises", Exhibit A-1 -
"Right of First Refusal Space", Exhibit A-2 - "Parking Plan", Exhibit
A-3 - "Storage Space", Exhibit B - "Verification Letter", Exhibit C -
"Rules and Regulations", Exhibit D - "HVAC Specifications", Exhibit E
- "Cleaning Specifications", Exhibit F - "Building Holidays", Exhibit
G - "License Agreement for Satellite Dish", Exhibit H - "Form of
Letter of Credit", Exhibit I - "Memorandum of Lease", Exhibit J -
"Discharge of Memorandum of Lease", Exhibit K - "Subordination,
Non-Disturbance and Attornment Agreement", Schedule 1-A - "Landlord's
Work", Schedule 1-B - "Work Letter Agreement"; Schedule 1-C -
"Improvements to be removed by Tenant at end of Term", and Schedule
1-D - "Electric Plans".
1.17. Address for Notices:
Landlord: VRS Saddle River LLC With Copy To:
c/o Kwartler Associates, Inc. TA Associates Realty
2 North Street 28 State Street
Waldwick, NJ 07463 Boston, MA 02109
Attn.: Mr. Christopher J. Good
Tenant: PDI, Inc. With Copy To (subject to the:
One Route 17 South limitations contained in Section 40 below):
Saddle River, New Jersey Greenbaum, Rowe, Smith,
Suite 300 Ravin, Davis & Himmel LLP
Attn: Mr. Peter Lynch Metro Corporate Campus One
99 Wood Avenue South
Iselin, New Jersey 08830-2712
Attn.: Steven C. Delinko, Esq.
1.18. Agent for Service of Process: If Tenant is a corporation, the name
and address of Tenant's registered agent for service of process is:
National Registered Agents, Inc.
9 East Lookerman Street, Suite 1B
Dover, Delaware 19901
1.19. Tenant's Standard Industrial Classification (herein "SIC") Number:
422990, as determined by reference to the SIC Manual and its
operations shall consist of the Use described in Section 1.5.
2. Premises.
2.1 Lease of Premises. The "Project" consists of one (1) building to be
built (hereinafter, the "Building"), the Common Areas (as defined below), the
land upon which the same are located, along with all other buildings and
improvements thereon or thereunder, including all parking facilities. Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord, upon all of the
conditions set forth herein, the Premises, together with the non-exclusive right
to use the Common Areas as hereinafter specified. The Premises shall not include
an easement for light, air or view.
2.2 Calculation of Size of Building and Premises. All provisions included
in this Lease relating to the number of rentable square feet in the Premises,
including, but not limited to, Base Rent and Tenant's Share, shall reflect the
number of rentable square feet in the Premises and in the Building. The
calculation of the number of rentable square feet in the Premises is specified
in Section 1.3 hereinabove.
2.3 Common Areas-Defined. The term "Common Areas" is defined as all areas
and facilities outside the Premises and within the exterior boundary line of the
Project that are designated by Landlord from time to time for the general
non-exclusive use of Landlord, Tenant and the other tenants of the Project and
their respective employees, suppliers, customers and invitees, including, but
not limited to, common entrances, lobbies, corridors, stairwells, public
restrooms, elevators, parking areas, loading and unloading areas, roadways and
sidewalks. Landlord may also designate other land and improvements outside the
boundaries of the Project to be a part of the Common Areas, provided that such
other land and improvements have a reasonable and functional relationship to the
Project.
3. Term.
3.1 Term and Commencement Date. The Term, Possession Date and Commencement
Date of this Lease are as specified in Sections 1.6 and 1.7. The Possession Date
set forth in Section 1.7 is an estimated Possession Date. Subject to the
limitations contained in Section 3.3 below, the actual Possession Date shall be
the date possession of the Premises is tendered to Tenant for purposes of Tenant
constructing the Improvements in accordance with Section 3.4 below. If the
Commencement Date is other than the first day of a month, then the Term of this
Lease shall commence on the Commencement Date but the Term of the Lease shall be
computed from the first day of the calendar month following the Commencement
Date. When the actual Commencement Date is established by Landlord, Tenant
shall, within five (5) days after Landlord's request, complete and execute the
letter attached hereto as Exhibit "B" (the "Verification Letter") and deliver it
to Landlord. Tenant's failure to execute the Verification Letter within said
five (5) day period shall be a material default hereunder and shall constitute
Tenant's acknowledgment of the truth of the facts contained in the Verification
Letter delivered by Landlord to Tenant. Tenant shall have the right to contest
in good faith the facts set forth in the Verification Letter sent to Tenant by
Landlord. Notwithstanding anything to the contrary contained herein, provided
that Tenant delivers written notice to Landlord stating with specificity the
nature of Tenant's dispute within such five (5) day period referenced above,
then Tenant's failure to execute the Verification Letter within such time period
shall not be considered to be a default hereunder. In the event Tenant delivers
written notice of a dispute regarding the Verification Letter to Landlord
pursuant to this provision, then the parties agree to negotiate in good faith in
order to resolve the dispute. If the parties are unable to come to an agreement
regarding the facts of the Verification Letter within thirty (30) days following
the date on which Tenant delivered its notice of dispute to Landlord, then the
matter shall be submitted to arbitration in accordance with the rules of the
American Arbitration Association, in a venue which is nearest to the location of
the Premises and mutually agreed upon by Landlord and Tenant.
3.2 Delay in Possession. Notwithstanding the estimated Possession Date
specified in Section 1.7, if for any reason Landlord cannot deliver possession
of the Premises to Tenant on said date, Landlord shall not be subject to any
liability therefor, nor shall such failure affect the validity of this Lease or
the obligations of Tenant hereunder or extend the Term hereof. If Landlord shall
not have tendered possession of the Premises to Tenant within one hundred twenty
(120) days following the estimated Possession Date specified in Section 1.7 for
any reason including a Force Majeure Event as hereinafter defined, Tenant may,
at Tenant's option, by notice in writing to Landlord within ten (10) days after
the expiration of the one hundred twenty (120) day period, terminate this Lease.
If Tenant terminates this Lease as provided in the preceding sentence, the
parties shall be discharged from all obligations hereunder, except that Landlord
shall return any money previously deposited with Landlord by Tenant. A Force
Majeure Event shall mean fire, earthquake, weather delays or other acts of God,
strikes, boycotts, war, riot, insurrection, embargoes, shortages of equipment,
labor or materials, delays in issuance of governmental permits or approvals, or
any other cause beyond the reasonable control of Landlord.
3.3 Delays Caused by Tenant. [Intentionally omitted].
3.4 Tender of Possession. Possession of the Premises shall be deemed
tendered to Tenant when Landlord's architect or agent has determined that (a)
Landlord's Work, as defined in Schedule 1-A is
substantially completed, (b) the Project utilities are ready for use in the
Premises, and (c) Tenant has reasonable access to the Premises.
3.5 Early Possession. [Intentionally omitted].
4. Rent.
4.1 Base Rent. Subject to adjustment as hereinafter provided in Section 5
of the Lease, Tenant shall pay to Landlord the Base Rent for the Premises set
forth in Section 1.8, without offset or deduction on the first day of each
calendar month commencing January 1, 2005. Tenant shall deposit with Landlord
the advance Base Rent described in Section 1.9 in accordance with Addendum
Paragraph 1. Base Rent for any period during the Term hereof which is for less
than one month shall be prorated based upon the actual number of days of the
calendar month involved. Base Rent and all other amounts payable to Landlord
hereunder shall be payable to Landlord in lawful money of the United States at
the address stated herein or to such other persons or at such other places as
Landlord may designate in writing.
See Addendum Paragraph 1
5. Adjustments in Rent (also referred to as "Additional Rent").
5.1 Operating Expense Increases. Tenant shall pay to Landlord during the
Term hereof, in addition to the Base Rent, Tenant's Share of the amount by which
all Operating Expenses for each Comparison Year exceeds the amount of all
Operating Expenses for the Base Year. The Operating Expenses for the Base Year
shall be adjusted, if necessary, to a level of that of a 95% occupied and fully
operational office building at cost levels prevailing in the geographic market
in which the Building is located for an entire calendar year. This adjustment
shall include (a) when Building systems are under warranty during the Base Year,
an adjustment for the cost of service contracts and other expenses that would
have been incurred in the absence of such warranties; (b) an adjustment for all
other expenses that are not incurred if the Building is new and start-up
discounts or similar savings have been achieved; and (c) adjustments for all
other atypical costs that occur or do not occur during the Base Year other than
those costs which would occur in the Base Year in the ordinary course of
business. The purpose of these adjustments is to include in the Operating
Expenses for the Base Year all reasonable cost components that occur or are
likely to occur in later years. If a new category of expense is incurred after
the Base Year, the first full year's expense for such item shall be added to the
Building Operating Expenses for the Base Year commencing with the first full
calendar year that such expense is incurred, so that Tenant shall only be
required to pay subsequent increases in such expense. The expense incurred for
such item during the first year shall be subject to the adjustments described in
this paragraph.
Tenant's Share of Operating Expense increases shall be determined in
accordance with the following provisions:
(a) "Base Year" as used in this Section 5, shall mean the calendar
year (January through December) set forth in Section 1.12. "Base Year Expenses"
shall mean the Operating Expenses for the Base Year (as grossed up pursuant to
Section 5.1 above).
(b) "Tenant's Share" is defined as the percentage set forth in Section
1.11, which percentage has been determined by dividing the number of rentable
square feet attributed to the Premises by the total number of rentable square
feet in the Building and multiplying the resulting quotient by one hundred
(100). In the event that the number of rentable square feet in the Building or
the Premises changes, Tenant's Share shall be adjusted in the year the change
occurs, and Tenant's Share for such year shall be determined on the basis of the
days during such year that each Tenant's Share was in effect.
(c) "Comparison Year" is defined as each calendar year during the Term
of this Lease subsequent to the Base Year. "Comparison Expenses" are those
Operating Expenses occurring during a Comparison Year, to be compared to Base
Year Expenses. Tenant's Share of the Operating Expense increases for the last
Comparison Year of the Term shall be prorated according to that portion of such
Comparison Year as to which Tenant is responsible for a share of such increase.
(d) "Operating Expenses" shall include all costs, expenses and fees
incurred by Landlord in connection with or attributable to the Project,
including but not limited to, the following items: (i) all costs, expenses and
fees associated with or attributable to the ownership, management, operation,
repair, maintenance, improvement, alteration and replacement of the Project, or
any part thereof, including but not limited to, the following: (A) all surfaces,
coverings, decorative items, carpets, drapes, window coverings, parking areas,
loading and unloading areas, trash areas, roadways, sidewalks, stairways,
landscaped areas, striping, bumpers, irrigation systems, lighting facilities,
building exteriors and roofs, fences and gates; (B) all heating, ventilating and
air conditioning equipment ("HVAC"), plumbing, mechanical, electrical systems,
life safety systems and equipment, telecommunication equipment, elevators,
escalators, tenant directories, fire detection systems including sprinkler
system maintenance and repair; (ii) the cost of trash disposal, janitorial
services and security services and systems; (iii) the cost of all insurance
purchased by Landlord and enumerated in Section 9 of this Lease, including any
deductibles; (iv) the amount of the real property taxes to be paid by Landlord
under Section 5.2 hereof; (v) the cost of water, sewer, gas, electricity, and
other utilities available at the Project and paid by Landlord; (vi) the cost of
labor, salaries and applicable fringe benefits incurred by Landlord; (vii) the
cost of materials, supplies and tools used in managing, maintaining and/or
cleaning the Project; (viii) the cost of accounting fees, management fees, legal
fees and consulting fees attributable to the ownership, operation, management,
maintenance and repair of the Project plus the cost of any space occupied by the
property manager and leasing agent (if Landlord is the property manager,
Landlord shall be entitled to receive a fair market management fee); (ix) the
cost of replacing and/or adding improvements mandated by any law, statute,
regulation or directive of any governmental agency and any repairs or removals
necessitated thereby; (x) personal property taxes imposed upon the fixtures,
machinery, equipment, furniture and personal property used in connection with
the operation of the Project; (xi) payments made by Landlord under any easement,
license, operating agreement, declaration, restrictive covenant, or instrument
pertaining to the payment or sharing of costs among property owners; and (xii)
the cost of any other service provided by Landlord or any cost that is elsewhere
stated in this Lease to be an "Operating Expense." Landlord shall have the right
but not the obligation, from time to
time, to equitably allocate some or all of the Operating Expenses among
different tenants of the Project (the "Cost Pools"). Such Cost Pools may
include, but shall not be limited to, the office space tenants of the Project
and the retail space tenants of the Project.
See Addendum Paragraph 2
(e) Operating Expenses shall not include: (i) any expenses paid by any
tenant directly to third parties, or as to which Landlord is otherwise
reimbursed (or entitled to be reimbursed regardless of whether or not Landlord
actually receives such reimbursement) by any third party or by insurance
proceeds; (ii) electricity paid for by any tenant of the Project as described in
Section 11.6 of the Lease; (iii) salaries for Landlord's executives above the
grade of building manager and/or any employee of Landlord not directly involved
with the Project; (iv) costs associated with Landlord's performance of work or
services solely for the benefit of other tenant(s) and not for the benefit of
the Tenant; (v) leasing commissions; and (vi) interest and amortization payments
on any mortgage or mortgages.
(f) If the cost incurred in making an improvement or replacing any
equipment is not fully deductible as an expense in the year incurred in
accordance with generally accepted accounting principles, the cost shall be
amortized over the useful life of the improvement or equipment, as reasonably
determined by Landlord, together with an interest factor of ten percent (10%)
per annum on the unamortized cost of such item.
(g) As soon as practicable after each calendar year, Landlord shall
furnish Tenant with a statement (the "Statement") which shall show the
Comparison Expenses for the preceding Comparison Year compared to the Base Year
Expenses. On the same day as the next payment of Base Rent is due following the
furnishing of such Statement: (1) Tenant shall pay to Landlord a sum (the
"Expense Increase") equal to Tenant's Share of the increase, if any, of the
Operating Expenses for the preceding Comparison Year over the Base Year Expenses
as determined by comparing the Comparison Expenses to the Base Year Expenses;
(2) Tenant shall pay to Landlord a sum equal to one-twelfth (1/12th) of the
Expense Increase multiplied by the number of months then elapsed commencing with
the first day of the then current Lease Year; (3) Tenant shall pay, in advance,
one-twelfth (1/12th) of the Expense Increase with respect to the then current
month and thereafter, each and every month, until a different Statement shall be
submitted to Tenant as provided hereinabove. Notwithstanding the above, if the
Landlord shall estimate that any Comparison Year's Operating Expenses shall be
in excess of those for the preceding Comparison Year, then the said monthly
installments of Expense Increase shall be increased to an amount equal to
Tenant's Share of one-twelfth (1/12th) of Landlord's estimate of said Comparison
Expenses. If Tenant's payments under this Section 5.1(g) during said Comparison
Year exceed Tenant's Share as indicated on the Statement, Tenant shall be
entitled to credit the amount of such overpayment against Tenant's Share of
Expense Increases next falling due. If Tenant's payments under this Section
5.1(g) during said Comparison Year were less than Tenant's Share as indicated on
the statement, Tenant shall pay to Landlord the amount of the deficiency within
thirty (30) days after delivery by Landlord to Tenant of the Statement. Landlord
and Tenant shall forthwith adjust between them by cash payment any balance
determined to exist with respect to that portion of the last Comparison Year for
which Tenant is responsible for Expense Increases, notwithstanding that the Term
of the Lease may have terminated before the end of such Comparison Year; and
this provision shall survive the expiration or earlier termination of the Lease.
(h) The computation of Tenant's Share of Operating Expense increases
is intended to provide a formula for the sharing of costs by Landlord and Tenant
and will not necessarily result in the reimbursement to Landlord of the exact
costs it has incurred.
(i) If Tenant disputes the amount set forth in the Statement, Tenant
shall have the right, at Tenant's sole expense, not later than one hundred
twenty (120) days following receipt of such Statement, to cause Landlord's books
and records in respect to the
calendar year which is the subject of the Statement to be audited by an
accountant mutually acceptable to Landlord and Tenant. The audit shall take
place at the offices of Landlord where its books and records are located at a
mutually convenient time during Landlord's regular business hours. Before
conducting any audit, Tenant must pay the full amount of Operating Expenses
billed. Tenant shall have no right to conduct an audit or to give Landlord
notice that it desires to conduct an audit at any time Tenant is in default
under the Lease after the expiration of any applicable notice and cure periods.
The accountant conducting the audit shall be compensated on an hourly basis and
shall not be compensated based upon a percentage of overcharges it discovers. No
subtenant shall have any right to conduct an audit, and no assignee shall
conduct an audit for any period during which such assignee was not in possession
of the Premises. Tenant's right to undertake an audit with respect to any
calendar year shall expire one hundred twenty (120) days after Tenant's receipt
of the Statement for such calendar year, and such Statement shall be final and
binding upon Tenant and shall, as between the parties, be conclusively deemed
correct, at the end of such one hundred twenty (120) day period, unless prior
thereto Tenant shall have given Landlord written notice of its intention to
audit Operating Expenses for the calendar year which is the subject of the
Statement. If Tenant gives Landlord notice of its intention to audit Operating
Expenses, it must commence such audit within sixty (60) days after such notice
is delivered to Landlord, and the audit must be completed within one hundred
twenty (120) days after such notice is delivered to Landlord. If Tenant does not
commence and complete the audit within such periods, the Statement which Tenant
elected to audit shall be deemed final and binding upon Tenant and shall, as
between the parties, be conclusively deemed correct. Tenant agrees that the
results of any Operating Expenses audit shall be kept strictly confidential by
Tenant and shall not be disclosed to any other person or entity except Tenant's
agents and consultants on an as-needed basis. If the parties agree to the
results of such audit, Tenant's Share of Operating Expenses shall be
appropriately adjusted based upon the results of such audit, and the results of
such audit shall be final and binding upon Landlord and Tenant. If the parties
do not agree upon the inclusion or amount of any Operating Expense charged by
Landlord, the sole remedy of Tenant shall be to conduct an audit within the time
specified in this Lease and, if still in disagreement with Landlord, to submit
the matter to arbitration within thirty (30) days after completion of the audit
to request an adjustment to any disputed Operating Expense item.
5.2 Real Property Taxes.
(a) Landlord shall pay the real property tax, as defined in Section
5.2(b), applicable to the Project, subject to reimbursement by Tenant of
Tenant's Share of increases in such Taxes in accordance with the provisions of
Section 5.1.
(b) "Real property tax" shall include any form of real property tax or
assessment, general, special, or otherwise, and any license fee, commercial
rental tax, improvement bond or bonds, levy or tax levied upon or with respect
to the Building, the Project, and the Land, imposed upon or with respect to the
Building, the Project, and the Land, imposed by Federal, State and/or local
governments, as well as school districts and/or other taxing authorities (but
shall not include income, franchise, capital stock, estate or inheritance taxes
or taxes based upon receipts of rentals, unless the same be in substitution for
or in lieu of a real property tax or assessment), and any personal property
taxes imposed upon the fixtures, machinery, equipment. apparatus, systems and
appurtenances in, upon or used in connection with the Building and the Project
for the operation thereof. However, if, because of any change in the method of
taxation of real property, any other or additional tax or assessment is imposed
upon Landlord or upon or with respect to the Building, the Project, and/or the
Land or the rents or income therefrom, in addition to or in substitution for, or
in lieu of any tax or assessment which would otherwise be a real property tax,
or personal property tax of the type referred to above, such other tax or
assessment
shall also be deemed a real property tax. As used herein, the term "real
property tax" shall be deemed to include "real estate tax".
(c) Tenant shall pay prior to delinquency all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises or related to Tenant's use of the
Premises. If any of Tenant's personal property shall be assessed with Landlord's
real property, Tenant shall pay to Landlord the taxes attributable to Tenant
within ten (10) days after receipt of a written statement from Landlord setting
forth the taxes applicable to Tenant's property.
(d) From time to time Landlord may challenge the assessed value of the
Project as determined by applicable taxing authorities and/or Landlord may
attempt to cause the real property taxes to be reduced on other grounds. If
Landlord is successful in causing the real property taxes to be reduced or in
obtaining a refund, rebate, credit or similar benefit (hereinafter collectively
referred to as a "reduction"), Landlord shall, to the extent practicable, credit
the reduction(s) to real property taxes for the calendar year to which a
reduction applies and recalculate the Expense Increases owed by Tenant for years
after the year in which the reduction applies based on the reduced real property
taxes (if a reduction applies to Tenant's Base Year, the Base Year Expenses
shall be reduced by the amount of the reduction and Tenant's Share of Expense
Increases shall be recalculated for all Comparison Years following the year of
the reduction based on the lower Base Year amount). All costs incurred by
Landlord in obtaining the real property taxes reductions shall be considered an
Operating Expense and Landlord shall determine, in its sole discretion to which
years any reductions will be applied. In addition, all accounting and related
costs incurred by Landlord in calculating new Base Years for tenants and in
making all other adjustments shall be an Operating Expense.
6. Security Deposit. Tenant shall deliver to Landlord at the time it executes
this Lease the security deposit set forth in Section 1.10 as security for
Tenant's faithful performance of Tenant's obligations hereunder. If Tenant fails
to pay Base Rent or other charges due hereunder, or otherwise defaults with
respect to any provision of this Lease and such default continues after the
expiration of any applicable notice and cure periods, Landlord may use all or
any portion of said deposit for the payment of any Base Rent or other charge due
hereunder, to pay any other sum to which Landlord may become obligated by reason
of Tenant's default, or to compensate Landlord for any loss or damage which
Landlord may suffer thereby. If Landlord so uses or applies all or any portion
of said deposit, Tenant shall within ten (10) days after written demand therefor
deposit cash with Landlord in an amount sufficient to restore said deposit to
its full amount. Landlord shall not be required to keep said security deposit
separate from its general accounts. If Tenant performs all of Tenant's
obligations hereunder, said deposit, or so much thereof as has not heretofore
been applied by Landlord, shall be returned, without payment of interest or
other amount for its use, to Tenant (or, at Landlord's option, to the last
assignee, if any, of Tenant's interest hereunder) at the expiration of the Term
hereof, and after Tenant has vacated the Premises. No trust relationship is
created herein between Landlord and Tenant with respect to said security
deposit. Tenant acknowledges that the security deposit is not an advance payment
of any kind or a measure of Landlord's damages in the event of Tenant's default.
See Addendum Paragraph 3
7. Use.
7.1 Use. The Premises shall be used and occupied only for the purpose set
forth in Section 1.5 and for no other purpose. If Section 1.5 gives Tenant the
right to use the Premises for general office use, by way of example and not
limitation, general office use shall not include medical office use or any
similar use, laboratory use, classroom use, any use not characterized by
applicable zoning and land use restrictions as general office use, or any use
which would require Landlord or Tenant to obtain a conditional use permit or
variance from any federal, state or local authority. No exclusive use has been
granted to Tenant hereunder.
7.2 Compliance with Law. Notwithstanding any permitted use inserted in
Section 1.5, Tenant shall not use the Premises for any purpose which would
violate the Project's certificate of occupancy, any conditional use permit or
variance applicable to the Project or violate any covenants, conditions or other
restrictions applicable to the Project. Tenant shall, at Tenant's expense,
promptly comply with all applicable laws, ordinances, rules, regulations,
orders, certificates of occupancy, conditional use permits, variances, covenants
and restrictions of record, and requirements of any fire insurance underwriters,
rating bureaus or government agencies, now in effect or which may hereafter come
into effect, whether or not they reflect a change in policy from that now
existing, during the Term or any part of the Term hereof, relating in any manner
to the Premises and the occupation and use by Tenant of the Premises. Tenant
shall conduct its business and use the Premises in a lawful manner and shall not
use or permit the use of the Premises or the Common Areas in any manner that
will tend to create waste or a nuisance or shall tend to disturb other occupants
of the Project. Tenant shall obtain, at its sole expense, any permit or other
governmental authorization required to operate its business from the Premises.
Landlord shall not be liable for the failure of any other tenant or person to
abide by the requirements of this section or to otherwise comply with applicable
laws and regulations, and Tenant shall not be excused from the performance of
its obligations under this Lease due to such a failure.
7.3 Condition of Premises. Except as otherwise provided in this Lease,
Tenant hereby accepts the Premises and the Project in their condition existing
as of the Possession Date, subject to all applicable federal, state and local
laws, ordinances, regulations and permits governing the use of the Premises, the
Project's certificate of occupancy, any applicable conditional use permits or
variances, and any easements, covenants or restrictions of record affecting the
use of the Premises or the Project. Tenant shall comply with all federal, state
and local laws and regulations governing occupational safety and health at
Tenant's sole cost and expense. Tenant acknowledges that it has satisfied itself
by its own independent investigation that the Premises and the Project are
suitable for its intended use, and that neither Landlord nor Landlord's agents
has made any representation or warranty as to the present or future suitability
of the Premises, or the Project for the conduct of Tenant's business.
Notwithstanding anything to the contrary contained in this Section 7.3, Landlord
warrants to Tenant that, to the best of Landlord's knowledge, the Building, in
the state existing on the Possession Date, but without regard to alterations or
improvements to be made by Tenant or the use for which Tenant will occupy the
Premises, does not violate any covenants or restrictions of record, or any
applicable building code, regulation or ordinance in effect on such date.
Notwithstanding anything to the contrary contained in Section 7.2 above,
Landlord shall comply with all present and future applicable laws relating to
the Building and the operation of the Building generally as an office building.
Without limiting the generality of the foregoing, Landlord expressly
acknowledges that if, as a result of Tenant's construction of the Improvements
or its occupancy of the Premises, any work must be performed in the lavatories
or other Common Areas or public portions of the Building in order to comply with
ADA, then Landlord at its sole cost and expense shall promptly perform such work
to the extent that (i) the occupancy of the Premises by Tenant for its normal
conduct of business is affected by reason of the Building's failure to comply
with ADA, or (ii) the Landlord receives any notice from a governmental entity
that the Building is not in compliance with the ADA. To the extent
that such notice requires action within the Premises with regard to Tenant's
particular use of the Premises, Tenant shall be obligated to undertake such
action at Tenant's sole cost and expense. If Landlord incurs an expense to
comply with an amendment to the ADA that is enacted after the date of this
Lease, the foregoing provisions of this Section 7.3 shall not be construed to
prohibit Landlord from including such expense in Operating Expenses, to the
extent and in the manner prescribed by Article 5 above.
8. Maintenance, Repairs and Alterations.
8.1 Landlord's Obligations. Landlord shall keep the Project, including
without limitation, the roof, structure, Building systems and Common Areas (but
excluding the interior of the Premises and space leased to other occupants of
the Project) in good condition and repair. Except as provided in Section 10.3,
there shall be no abatement of rent or liability to Tenant on account of any
injury or interference with Tenant's business with respect to any improvements,
alterations or repairs made by Landlord to the Project or any part thereof.
Tenant expressly waives the benefits of any statute now or hereafter in effect
which would otherwise afford Tenant the right to make repairs at Landlord's
expense or to terminate this Lease because of Landlord's failure to keep the
Project in good order, condition and repair.
8.2 Tenant's Obligations.
(a) Subject to the requirements of Section 8.3, Tenant shall be
responsible for payment of the cost of keeping the Premises in good condition
and repair, and if Landlord makes any repairs to the Premises, the cost thereof
shall be paid by Tenant to Landlord. Tenant shall be responsible for the cost of
painting, repairing or replacing wall coverings, and the cost of repairing or
replacing any improvements made to the Premises by Tenant. Landlord may, but
shall not be obligated to, enter the Premises at all reasonable times to make
such repairs, alterations, improvements and additions to the Premises or to any
equipment located therein as Landlord deems necessary, in its sole discretion.
(b) Tenant is responsible for the maintenance of the lighting fixtures
in the Premises. At the option of Tenant, Landlord agrees to sell to Tenant,
replacement parts for the lighting fixtures, including lamps, ballasts,
starters, lenses and grills used in the Premises. In addition, if Landlord
provides replacement part installation and/or repair work, then in said event,
Tenant shall pay Landlord the cost of installation thereof.
(c) Except as expressly provided to the contrary in Section 8.3 below,
on the last day of the Term hereof, or on any sooner termination, Tenant shall
surrender the Premises to Landlord in the same condition as received, ordinary
wear and tear excepted, clean and free of debris and Tenant's personal property.
Tenant shall repair any damage to the Premises occasioned by the installation or
removal of Tenant's trade fixtures, furnishings and equipment. Except as
otherwise stated in this Lease, Tenant shall leave the power panels, electrical
distribution systems, lighting fixtures, HVAC, window coverings, wall coverings,
carpets, wall paneling, ceilings and plumbing at the Premises and in good
operating condition.
8.3 Alterations and Additions.
(a) Tenant shall not, without Landlord's prior written consent, which
may be given or withheld in Landlord's sole discretion, make any alterations,
improvements, additions, utility installations or repairs (hereinafter
collectively referred to as "Alterations") in, on or about the Premises or the
Project. As used in this Lease, the term "utility installation" shall mean
carpeting or other floor covering, window and wall coverings, power panels,
electrical distribution systems, lighting fixtures, telephone or computer system
wiring, HVAC and plumbing. At the expiration of the Term, Landlord may require
the removal of any Alterations (including non-structural Alterations made
without Landlord's consent as more particularly described below) installed by
Tenant and the restoration of the Premises and the Project to their prior
condition, at Tenant's expense. To the extent Landlord's consent is required
pursuant to this Section 8.3(a), at the written request of Tenant, Landlord
agrees to notify Tenant concurrently with Landlord's consent to such Alteration
whether Landlord will require Tenant to remove such Alteration at the end of the
Term. Except as set forth on Schedule 1-C attached hereto, Tenant shall not be
obligated to remove the tenant improvements constructed in accordance with the
work letter agreement attached hereto as Schedule 1-B or any improvements
performed by Tenant in connection with its initial fit-out of the Premises.
Should Landlord permit Tenant to make its own Alterations, Tenant shall use only
such contractor as has been reasonably approved by Landlord. Should Tenant make
any Alterations without the prior approval of Landlord, or use a contractor not
approved by Landlord in its reasonable discretion, Landlord may, at any time
during the Term of this Lease, require that Tenant remove all or part of the
Alterations and return the Premises to the condition it was in prior to the
making of the Alterations. In the event Tenant makes any Alterations, Tenant
agrees to cause its contractor to obtain, prior to the commencement of any work,
"builders all risk" insurance in an amount approved by Landlord and workers
compensation insurance.
See Addendum Paragraph 4
(b) Any Alterations in or about the Premises that Tenant shall desire
to make shall be presented to Landlord in written form, with plans and
specifications which are sufficiently detailed to obtain a building permit. If
Landlord consents to an Alteration, the consent shall be deemed conditioned upon
Tenant acquiring a building permit from the applicable governmental agencies,
furnishing a copy thereof to Landlord prior to the commencement of the work, and
compliance by Tenant with all conditions of said permit in a prompt and
expeditious manner. Tenant shall provide Landlord with as-built plans and
specifications for any Alterations made to the Premises.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or for use in
the Premises, which claims are or may be secured by any mechanic's or
materialmen's lien against the Premises or the Project, or any interest therein.
If Tenant shall, in good faith, contest the validity of any such lien, Tenant
shall furnish to Landlord a surety bond satisfactory to Landlord in an amount
equal to such contested lien claim or demand indemnifying Landlord against
liability arising out of such lien or claim. In addition, Landlord may require
Tenant to pay Landlord's reasonable attorneys' fees and costs in participating
in such action.
(d) Tenant shall give Landlord not less than ten (10) days' advance
written notice prior to the commencement of any work in the Premises by Tenant,
and Landlord shall have the right to post notices of non-responsibility in or on
the Premises or the Project as provided by law.
(e) All Alterations (whether or not such Alterations constitute trade
fixtures of Tenant) which may be made to the Premises by Tenant shall be made
and done in a good and workmanlike manner and with new materials satisfactory to
Landlord and shall be the property of Landlord and remain upon and be
surrendered with the Premises at the expiration of the Lease Term, unless
Landlord requires their removal pursuant to Section 8.3(a). Provided Tenant is
not in default, notwithstanding the provisions of this Section 8.3(e), Tenant's
personal property and equipment, other than that which is affixed to the
Premises so that it cannot be removed without material damage to the Premises or
the Project, shall remain the property of Tenant and may be removed by Tenant
subject to the provisions of Section 8.2(c). Notwithstanding anything to the
contrary contained herein, any Improvements made by and paid for by Tenant
pursuant to the Work Letter Agreement attached hereto as Schedule 1-B shall be
deemed
to be the property of Tenant until the expiration or earlier termination of the
Lease and, if set forth in Schedule 1-C attached hereto, Tenant shall, at
Tenant's sole cost and expense, remove such Improvements and repair any damage
caused by such removal.
8.4 Failure of Tenant to Remove Property. If this Lease is terminated due
to the expiration of its Term or otherwise, and Tenant fails to remove its
property as required by Section 8.2(b), in addition to any other remedies
available to Landlord under this Lease, and subject to any other right or remedy
Landlord may have under applicable law, Landlord may remove any property of
Tenant from the Premises and store the same elsewhere at the expense and risk of
Tenant and at any time (before or after Landlord stores said property), Landlord
may sell any or all such property at public or private sale, in such a manner
and at such times and places as Landlord, in its sole discretion, may deem
proper, without notice to or demand upon Tenant. Landlord shall apply the
proceeds of such sale: first, to the cost and expenses of the sale, including
reasonable attorneys' fees actually incurred; second, to the payment of the cost
of or charges for storing any such property; third, to the payment of any other
sums of money which may then or thereafter be due to Landlord from Tenant under
this Lease; and fourth, the balance, if any, to Tenant.
9. Insurance.
9.1 Insurance-Tenant.
(a) During the Term of the Lease and at such other times as Tenant
occupies the Premises, Tenant shall keep in force at its expense "comprehensive
general liability" insurance including an ISO broad form endorsement or its
equivalent with respect to the Premises with limits of not less than One Million
Dollars ($1,000,000) combined single limit or such higher amount as Landlord may
reasonably require in writing from time to time. The insurance shall cover
liability arising out of Tenant's operations and liability arising out of work
performed at the Premises by other persons on behalf of Tenant, and shall
specifically include the contractual liability assumed by Tenant under this
Lease. Such coverage, if written on a claims-made basis, must provide for a
retroactive date which is prior to the date Tenant occupies the Premises, and
the same retroactive date shall continue during the entire Term of this Lease.
(b) Tenant will also maintain "all risk" extended coverage property
insurance written on a one hundred percent (100%) replacement cost basis on
Tenant's personal property, all tenant improvements installed at the Premises
and paid for by Tenant, Tenant's trade fixtures and other property. Such
policies shall provide protection against any peril included within the
classification "fire and extended coverage," against vandalism and malicious
mischief, theft, sprinkler leakage and flood damage. If this Lease is terminated
as the result of a casualty in accordance with Section 10, the proceeds of said
insurance attributable to the replacement of all tenant improvements at the
Premises shall be paid to Landlord.
(c) Tenant shall, at all times during the Term hereof, maintain in
effect workers' compensation insurance as required by applicable law .
9.2 Insurance-Landlord.
(a) Landlord shall obtain and keep in force a policy of comprehensive
general liability insurance with coverage against such risks and in such amounts
as Landlord deems reasonably advisable insuring Landlord against liability
arising out of the ownership, operation and management of the Project.
(b) Landlord shall also obtain and keep in force during the Term of
this Lease a policy or policies of "all risk" insurance covering loss or damage
to the Project in the amount of not less than the full replacement cost thereof
(less foundations and
footings), as reasonably determined by Landlord from time to time. The terms and
conditions of said policies and the perils and risks covered thereby shall be
reasonably determined by Landlord, from time to time, in Landlord's sole
discretion. In addition, at Landlord's option, Landlord shall obtain and keep in
force, during the Term of this Lease, a policy of rental interruption insurance,
with loss payable to Landlord, which insurance shall, at Landlord's option, also
cover all Operating Expenses. Tenant will not be named as an additional insured
in any insurance policies carried by Landlord and shall have no right to any
proceeds therefrom. At Landlord's option, Landlord may obtain insurance
coverages and/or bonds related to the operation of the parking areas. At
Landlord's option, Landlord may obtain coverage for flood and earthquake
damages. In addition, Landlord shall have the right to obtain such additional
insurance as is customarily carried by owners or operators of other comparable
office buildings in the geographical area of the Project. The policies purchased
by Landlord shall contain such deductibles as Landlord may reasonably determine.
In addition to amounts payable by Tenant in accordance with Section 5, Tenant
shall pay any increase in the property insurance premiums for the Project over
what was payable immediately prior to the Commencement Date to the extent the
increase is specified by Landlord's insurance carrier as being caused by the
nature of Tenant's occupancy or any act or omission of Tenant.
9.3 Insurance Policies. Tenant shall deliver to Landlord copies of the
certificates of insurance required under Section 9.1 within fifteen (15) days
prior to the Possession Date of this Lease, and Landlord shall have the right to
approve the terms and conditions of said policies. Tenant's insurance policies
shall not be cancelable or subject to reduction of coverage or other
modification except after thirty (30) days prior written notice to Landlord.
Tenant shall, at least thirty (30) days prior to the expiration of such
policies, furnish Landlord with renewals thereof. Tenant's insurance policies
shall be issued by insurance companies authorized to do business in the state in
which the Project is located, with a general policyholders rating of not less
than "A" and a financial rating of not less than "Class X," as rated in the most
recent edition of "Best Insurance Reports." Tenant's insurance policies shall be
issued as primary policies and not contributing with and not in excess of
coverage which Landlord may carry. Landlord, and at Landlord's option the holder
of any mortgage or deed of trust encumbering the Project, shall be named as an
additional insured on all insurance policies Tenant is obligated to obtain by
Section 9.1 above. Tenant's insurance policies shall not include deductibles in
excess of One Hundred Thousand Dollars ($100,000).
9.4 Waiver of Subrogation. Tenant and Landlord each hereby release and
relieve the other, and waive their entire right of recovery against the other,
for direct or consequential loss or damage arising out of or incident to the
perils covered by insurance carried by such party (or required to be carried by
such party by this Lease) to the extent of the insurance proceeds actually
received (or which would have been received had the party carried the insurance
required to be maintained by such party pursuant to this Section 9), whether due
to the negligence of Landlord or Tenant or their agents, employees, contractors
and/or invitees. Landlord and Tenant shall each cause the insurance policies
they obtain in accordance with this Section 9 to provide that the insurance
company waives all right of recovery by subrogation against either party in
connection with any damage covered by any policy.
9.5 Coverage. Landlord makes no representation to Tenant that the limits or
forms of coverage specified above or approved by Landlord are adequate to insure
Tenant's property or Tenant's obligations under this Lease, and the limits of
any insurance carried by Tenant shall not limit its obligations under this
Lease.
10. Damage or Destruction.
10.1 Effect of Damage or Destruction. If all or part of the Project is
materially damaged (as defined in Section 10.2 below) by fire, earthquake,
flood, explosion, the elements, riot or any other casualty, Landlord shall have
the right in its sole and complete discretion to repair or to rebuild the
Project or to terminate this Lease. Landlord shall within ninety (90) days after
the occurrence of such damage notify Tenant in writing of Landlord's intention
to repair or to rebuild or to terminate this Lease. Tenant shall in no event be
entitled to compensation or damages on account of annoyance or inconvenience in
making any repairs, or on account of construction, or on account of Landlord's
election to terminate this Lease. Notwithstanding the foregoing, if Landlord
shall elect to rebuild or repair the Project, but in good faith determines that
the Project cannot be rebuilt or repaired within two hundred seventy (270) days
after the date of the occurrence of the damage, without payment of overtime or
other premiums, and the damage to the Project has rendered the Premises
unusable, Landlord shall notify Tenant thereof in writing at the time of
Landlord's election to rebuild or repair, and Tenant shall thereafter have a
period of fifteen (15) days within which Tenant may elect to terminate this
Lease, upon written notice to Landlord. Tenant's termination right described in
this Section 10.1 shall not apply if the damage was caused by Tenant's willful
misconduct. Failure of Tenant to exercise said election within said period shall
constitute Tenant's agreement to accept delivery of the Premises under this
Lease whenever tendered by Landlord (provided the Premises have been
substantially completed and Landlord has obtained a temporary certificate of
occupancy ("TCO"), provided Landlord thereafter pursues reconstruction or
restoration diligently to completion, subject to delays beyond Landlord's
reasonable control; provided further, however, in the event Landlord pursues
reconstruction or restoration of the Project and such reconstruction and
restoration is not substantially complete due to delays within Landlord's
control within two hundred seventy (270) days after the date of the occurrence
of the damage, then Tenant shall have a further right to terminate this Lease
upon written notice to Landlord, so long as Tenant's written notice is delivered
to Landlord prior to Landlord's delivery of the Premises substantially completed
to Tenant together with delivery of a TCO. If Landlord is unable to repair the
damage to the Premises or the Project during such two hundred seventy (270) day
period due to a Force Majeure Event, the two hundred seventy (270) day period
shall be extended by the period of delay caused by the Force Majeure Event, not
to exceed forty-five (45) days following the expiration of such two hundred
seventy (270) day period.
10.2 Definition of Material Damage. The damage shall be deemed material if,
(a) the Project cannot be repaired to substantially the same condition it was in
prior to the damage due to laws or regulations in effect at the time the repairs
will be made, (b) the holder of any mortgage or deed of trust encumbering the
Project requires that insurance proceeds available to repair the damage in
excess of Twenty-Five Thousand Dollars ($25,000) be applied to the repayment of
the indebtedness secured by the mortgage or the deed of trust, or (c) the damage
occurs during the last twelve (12) months of the Lease Term as extended unless
Tenant has exercised (or does exercise) its Option to renew the Lease pursuant
to Paragraph 8 of the Addendum, or (d) insurance proceeds are not available to
Landlord in an amount which is sufficient to pay the entire cost of repairing
all of the damage to the Project due to the casualty being an uninsured event
(assuming Landlord had carried the insurance required under Section 9.2 and such
event is not typically insured by comparable landlords of comparable properties
in the same geographic area). Notwithstanding the foregoing, upon the sale of
the Project by Landlord, Landlord agrees to endeavor to have language included
in any SNDA provided to Tenant pursuant to
Section 25 of the Lease requiring the lender to release the insurance proceeds
for restoration of any damage..
10.3 Abatement of Rent. If Landlord elects to repair damage to the Project
and all or part of the Premises will be unusable or inaccessible to Tenant in
the ordinary conduct of its business until the damage is repaired, and the
damage was not caused by the willful misconduct of Tenant or its employees,
agents, contractors or invitees, Tenant's Base Rent and Tenant's Share of
Operating Expense increases shall be abated in proportion to the amount of the
Premises which is unusable or inaccessible to Tenant in the ordinary conduct of
its business until the repairs are completed.
10.4 Tenant's Negligence. If such damage or destruction occurs as a result
of the willful misconduct of Tenant or Tenant's employees, agents, contractors
or invitees, and the proceeds of insurance which are actually received by
Landlord are not sufficient to repair all of the damage, Tenant shall pay, at
Tenant's sole cost and expense, to Landlord upon demand, the difference between
the cost of repairing the damage and the insurance proceeds received by
Landlord.
10.5 Tenant's Property. Landlord shall not be required to repair any injury
or damage to, or to make any repairs or replacements of, any fixtures,
furniture, equipment or tenant improvements installed in the Premises, and
Tenant shall repair and restore all such property at Tenant's sole expense.
10.6 Waiver. Landlord and Tenant hereby waive the provisions of any
statutes which relate to the termination of leases when leased property is
damaged or destroyed and agree that such event shall be governed by the terms of
this Lease.
11. Services Provided by Landlord. Landlord shall furnish, without charge to
Tenant (except where otherwise specified herein), the following services
("Building Services"):
11.1 Air-Conditioning. Air-conditioning during Business Hours on Business
Days (as those terms are hereinafter defined) when, it may be required for the
comfortable occupancy of the Premises in accordance with the specifications set
forth in Exhibit D. At other times during Business Hours on Business Days,
Landlord shall provide ventilation for the Premises. Tenant at all times agrees
to cooperate fully with Landlord and to abide by all regulations and
requirements which Landlord may reasonably prescribe, for the proper functioning
and protection of its heating, ventilating and air-conditioning systems.
Landlord shall have free access to any and all mechanical installations of
Landlord, including but not limited to: air-conditioning, fans, ventilating and
machine rooms and electrical closets; and Tenant agrees that there shall be no
construction of partitions or other obstructions which might interfere with
Landlord's equipment to or from the enclosures containing said installations.
Tenant agrees that Tenant, its agents, employees or contractors shall not at any
time enter the said enclosures or tamper with, adjust, touch or otherwise in any
manner, affect Landlord's said mechanical installations.
11.2 Heat. Heat, on Business Days during Business Hours in accordance with
the specifications set forth in Exhibit D.
11.3 Water. Cold and hot water at standard building temperatures to all
lavatories, public or private, for ordinary drinking, cleaning, sanitary and
lavatory purposes.
11.4 Janitorial and Maintenance Services. Janitorial and maintenance
services for the Premises as defined in Exhibit E. Tenant shall pay to Landlord
the cost incurred by Landlord, for the removal of any of Tenant's refuse and
rubbish which exceeds by quantity and nature, the daily refuse and rubbish that
might otherwise result from the daily use of such premises as offices. Bills for
the such additional cost shall be rendered by Landlord to Tenant and shall be
due and payable when rendered; and the amount of such bills shall be deemed to
be, and shall be paid as, Additional Rent. Alternately, Tenant shall use
Landlord's contractors or employees, at the option of Landlord, for the removal
of such excess rubbish and refuse and Tenant agrees to pay reasonable charges
therefor.
11.5 Elevators. Automatic (non-attended) elevator facilities during
Business Hours on Business Days and at least one (1) automatic elevator
available at all other times.
11.6 Electricity.
(a) Electric current, with the understanding, however, that the Base
Rent does not include the cost of electricity consumed by Tenant in the
Premises; and Tenant shall, in addition to the Base Rent, be required to pay an
Electric Energy Charge as a condition for the Landlord to provide electric
current to the Premises. The Electric Energy Charge shall be paid monthly, as
Additional Rent, together with Base Rent for the Premises, based on Tenant's
actual electric consumption which shall be measured by a separate checkmeter,
installed by Landlord, at Landlord's sole expense, commencing on the
Commencement Date and throughout the Term and any renewals or extensions
thereof. The Electric Energy Charge shall be equal to the actual amount payable
by Landlord to the utility company without mark-up of any kind by Landlord.
Landlord will endeavor to obtain the lowest rates offered by the utility company
to similar landlords in comparable buildings in the same geographic area.
(b) (i) [Intentionally omitted].
(ii) [Intentionally omitted].
(iii) [Intentionally omitted].
(iv) [Intentionally omitted].
(v) [Intentionally omitted].
(c) [Intentionally omitted].
(d) (i) [Intentionally omitted].
(ii) [Intentionally omitted].
(e) [Intentionally omitted].
(f) Landlord shall not in any way be responsible or liable to Tenant
at any time for any loss, damage or expense resulting from any change in the
quantity or character of the electric service or for its being no longer
suitable for Tenant's requirements or from any cessation or interruption of the
supply or current; nor except as set forth in Section 11.10 herein, shall any
such loss, damage or expense, or non-supply of electric service or current in
any way affect the tenancy or in any way relieve Tenant of any obligation under
the terms of this Lease.
(g) Tenant covenants and agrees that at all times its use of electric
current shall never exceed the capacity provided by Landlord pursuant to
subsection 11.6(g) and Schedule 1-A. Tenant shall make no changes, alterations,
additions, substitutions ("Changes") to any risers, conduits, meters, panel
boxes, switch gear, wiring, or any other part of the electric service without
the express prior written consent of Landlord. Any Changes requested by Tenant
shall be sent in writing to Landlord; and if, in the reasonable judgment of
Landlord, such Changes will not cause or create a dangerous or hazardous
condition or damage or injury to the Building, or entail excessive or
unreasonable alterations or repairs, or interfere with or disturb other tenants
or occupants and/or the electrical service then or thereafter to be supplied to
tenants or occupants, Landlord will, at the sole cost and expense of Tenant,
make such Changes. Tenant covenants and agrees to pay Landlord for such costs
and expenses as additional rent, upon the rendition of a bill indicating the
amount due therefor.
(h) (i) Landlord reserves the right to terminate the furnishing of
electricity to the Premises at any time, upon no less than ninety (90) days'
written notice to the Tenant, in
which event, Tenant shall make immediate application directly to the utility
company servicing the Building for the Tenant's entire separate supply of
electric current; and Landlord shall permit its risers, wires, conduits and
other electrical equipment, to the extent available and safely capable, to be
used for such purpose. Any meters, and additional risers, wires, conduits and
equipment or connections necessary to enable Tenant to obtain electric current
directly from such utility company shall be installed at Tenant's sole cost and
expense if the termination of Landlord's service is legally required; otherwise,
they shall be installed at Landlord's sole cost and expense, and in compliance
with all applicable laws, ordinances and regulations and requirements of
insurance companies and fire underwriters.
(ii) No alterations, modifications or changes shall be made by
the Tenant to any meters, risers, conduits or other equipment or connections in
the Building in a manner which would cause damage to the Building or interfere
with the use, enjoyment, occupancy or possession of the Building by Landlord and
its other tenants. Rigid conduit only, or such other type as may be specified by
Landlord, will be allowed.
(iii) Tenant's liability for the Electric Energy Charge provided
for in this Lease shall terminate as of the date of discontinuance by Landlord
of the supplying of electric current, but this Lease shall otherwise remain in
full force and effect. Unless required by law, however, Landlord shall not
discontinue furnishing electricity to the Premises until after Tenant shall have
commenced receiving its electricity directly from the utility company unless
Tenant shall have failed to make such arrangements with due diligence.
11.7 Building Services on Non-Business Days or Non-Business Hours.
(a) Tenant acknowledges that Landlord is only required to provide the
Building Services specified in Sub-sections 11.1 through 11.6 hereinabove only
during Business Hours on Business Days and in addition, access to electricity,
water and one (1) automatic elevator, during Non-Business Hours on Non-Business
Days as well. Anything to the contrary notwithstanding, Landlord shall provide
Tenant reasonable access to the Common Areas of the Project and Building and to
the Premises, twenty-four (24) hours a day, seven (7) days per week, subject to
such security procedures, restrictions and regulations which Landlord may
reasonably promulgate.
(b) Landlord shall use its best efforts to provide HVAC to Tenant at
times other than those set forth above subject to (i) the payment by Tenant of
Landlord's standard charge, as determined by Landlord from time to time, in
Landlord's sole discretion, for after hours HVAC and (ii) Tenant providing to
Landlord at least one (1) Business Day's advance written notice of Tenant's need
for Non-Business Hours and/or Non-Business Day HVAC service. As of the date of
this Lease, and subject to future increases in accordance with the terms of this
subsection, the standard charge for after hours HVAC is Fifty Dollars ($50.00)
per hour with a four (4) hour minimum, unless such overtime usage is continuous
to the Business Hours, in which case no hourly minimum will be required. The
standard charge shall be increased by a percentage equal to the percentage
increase in utility charges during the Term of this Lease. For example, if the
usage charge for electricity increases from twenty-five cents ($.25) per
Kilowatt-Hour (KWHR) to thirty cents ($.30) KWHR, then the after hours HVAC
charge shall increase by twenty percent (20%) to Sixty Dollars ($60.00) per
hour. Tenant shall pay all after hours HVAC charges to Landlord within thirty
(30) days after Landlord bills Tenant for said charges.
11.8 Definition of Business Days and Business Hours of Building Services.
"Business Days" as defined herein, shall be Monday through Friday from 8:00 A.M.
to 6:00 PM and Saturdays from 8:00 A.M. to 1:00 P.M., excluding all days
observed as non-working (vacation) holidays by the State and/or Federal
government ("Holidays") as listed on Exhibit F attached hereto. "Business Hours"
as defined herein, shall mean 8:00 A.M. and 6:00 P.M. on
Monday through Friday, excluding Holidays, and Saturday, from 8:00 A.M. to 1:00
P.M., excluding Holidays.
11.9 Excess Usage by Tenant. Notwithstanding the use set forth in Section
1.5 and/or Section 11 and its sub-sections, Tenant shall not use Building
utilities or services in excess of those used by the average office building
tenant using its premises for ordinary office use.
11.10 Interruptions. Tenant agrees that Landlord shall not be liable to
Tenant for its failure to furnish utilities or other Building Services when such
failure is occasioned, in whole or in part, by repairs, replacements, or
improvements, by any strike, lockout or other labor trouble, by inability to
secure electricity, gas, water, or other fuel at the Project after reasonable
effort to do so, by any accident or casualty whatsoever, by act or default of
Tenant or other parties, or by any other cause beyond Landlord's reasonable
control, and such failures shall never be deemed to constitute an eviction or
disturbance of Tenant's use and possession of the Premises or relieve Tenant
from paying rent or performing any of its obligations under this Lease.
Furthermore, Landlord shall not be liable under any circumstances for loss of
property or for injury to, or interference with, Tenant's business, including,
without limitation, loss of profits, however occurring, through or in connection
with or incidental to a failure to furnish any of the Building Services or
utilities as set forth in this Section 11 and its sub-sections. Landlord may
comply with voluntary controls or guidelines promulgated by any governmental
entity relating to the use or conservation of energy, water, gas, light or
electricity or the reduction of automobile or other emissions without creating
any liability of Landlord to Tenant under this Lease. Notwithstanding anything
contained herein to the contrary, if any interruption of utilities or services
or inability of Tenant to gain access to the Premises shall continue for more
than seven (7) consecutive business days and shall render all or any portion of
the Premises unusable for the normal conduct of Tenant's business, and if Tenant
does not in fact so use or occupy such portion of the Premises, then all Base
Rent and additional rent payable hereunder with respect to such portion of the
Premises which Tenant does not so occupy shall be abated from and after such
seventh (7th) business day until full use of such portion of the Premises is
restored to Tenant. In the event any such interruption of services continues for
more than two hundred seventy (270) days, the Premises are unusable or
inaccessible to Tenant in the ordinary conduct of its business during such
period and Tenant does not, in fact, use the Premises for the conduct of its
business during such period, Tenant shall have the same termination rights
afforded to Tenant pursuant to Section 10 hereinabove.
11.11 Services Exclusive to Tenant. Tenant shall pay for all water, gas,
heat, electricity, telephone and other utilities and services supplied and/or
metered exclusively to the Premises or to Tenant, together with any taxes
thereon. If any such services are not separately metered to the Premises, Tenant
shall pay, at Landlord's option, either Tenant's Share or a reasonable
proportion to be determined by Landlord of all charges jointly metered with
other premises in the Project.
Landlord agrees to permit Tenant to install, operate and maintain
supplementary HVAC units ("Supplemental HVAC") subject to Tenant's satisfaction
of the following conditions: (i) Tenant shall obtain all necessary approvals,
permits and licenses from all governmental authorities having jurisdiction over
such matters; and (ii) Tenant shall
obtain Landlord's prior approval of Tenant's plans, which such plans shall
include the location and size of the Supplemental HVAC and such other
information as Landlord deems necessary. Landlord shall have the right to have a
representative present at the time of such installation. Landlord reserves the
right to require Tenant to remove the Supplemental HVAC at the expiration of the
Term or earlier termination of the Lease and to restore the Premises to its
prior condition, provided that Landlord agrees to notify Tenant at such time as
Landlord approves Tenant's plans, at the written request of Tenant, whether or
not Landlord will require Tenant to remove such Supplemental HVAC at the
expiration or earlier termination of the Lease. Tenant understands that such
usage shall be separately submetered and that Tenant shall pay all costs
associated with the use of such Supplemental HVAC.
12. Assignment and Subletting.
12.1 Landlord's Consent Required. Tenant shall not voluntarily or by
operation of law assign, transfer, hypothecate, mortgage, sublet, or otherwise
transfer or encumber all or any part of Tenant's interest in this Lease or in
the Premises (hereinafter collectively a "Transfer"), without Landlord's prior
written consent, which shall not be unreasonably withheld. Landlord shall
respond to Tenant's written request for consent hereunder within fifteen (15)
business days after Landlord's receipt of the written request from Tenant. Any
attempted Transfer without such consent shall be void and shall constitute a
material default and breach of this Lease. Tenant's written request for
Landlord's consent shall include, and Landlord's fifteen (15) business day
response period referred to above shall not commence, unless and until Landlord
has received from Tenant, all of the following information: (a) financial
statements for the proposed assignee or subtenant for the past three (3) years
prepared in accordance with generally accepted accounting principles, (b)
federal tax returns for the proposed assignee or subtenant for the past three
(3) years, (c) a TRW credit report or similar report on the proposed assignee or
subtenant, (d) a detailed description of the business the assignee or subtenant
intends to operate at the Premises, (e) the proposed effective date of the
assignment or sublease, (f) a copy of the proposed sublease or assignment
agreement which includes all of the terms and conditions of the proposed
assignment or sublease, and (g) a detailed description of any ownership or
commercial relationship between Tenant and the proposed assignee or subtenant.
If the obligations of the proposed assignee or subtenant will be guaranteed by
any person or entity, Tenant's written request shall not be considered complete
until the information described in (a), (b) and (c) of the previous sentence has
been provided with respect to each proposed guarantor. "Transfer" shall also
include the transfer (a) if Tenant is a corporation, and Tenant's stock is not
publicly traded over a recognized securities exchange, of more than twenty five
percent (25%) of the voting stock of such corporation during the term of this
Lease (whether or not in one or more transfers) or the dissolution or merger of
the corporation, or (b) if Tenant is a partnership or other entity, of more than
twenty five percent (25%) of the profit and loss participation in such
partnership or entity during the term of this Lease (whether or not in one or
more transfers) or the dissolution or liquidation of the partnership.
See Addendum Paragraph 5
12.2 Standard For Approval. Landlord shall not unreasonably withhold its
consent to a Transfer provided that Tenant has complied with each and every
requirement, term and condition of this Section 12. Tenant acknowledges and
agrees that each requirement, term and condition in this Section 12 is a
reasonable requirement, term or condition. It shall be deemed reasonable for
Landlord to withhold its consent to a Transfer if any requirement, term or
condition of this Section 12 is not complied with or: (a) the Transfer would
cause Landlord to be in violation of its obligations under another lease or
agreement to which Landlord is a party; (b) a proposed assignee has sufficient
assets to meet the remaining obligations of Tenant under the Lease, in
Landlord's reasonable judgment
; (c) a proposed assignee's or subtenant's business will impose a burden on the
Project's parking facilities, elevators, Common Areas or utilities that is
greater than the burden imposed by Tenant, in Landlord's reasonable judgment;
(d) the terms of a proposed assignment or subletting will allow the proposed
assignee or subtenant (other than a Permitted Transferee as that term is defined
in Paragraph 5 of the Addendum) to exercise a right of renewal, right of
expansion, right of first offer, right of first refusal or similar right held by
Tenant; (e) a proposed assignee does not, in Landlord's reasonable judgment,
have a good credit rating; (f) [intentionally omitted] ; (g) a proposed assignee
or subtenant refuses to enter into a written assignment agreement or sublease,
reasonably satisfactory to Landlord, which provides that it will abide by and
assume all of the terms and conditions of this Lease for the term of any
assignment or sublease and containing such other terms and conditions as
Landlord reasonably deems necessary; (h) the use of the Premises by the proposed
assignee or subtenant will not be identical to the use permitted by this Lease;
(i) ) Landlord is marketing space in the Project at the time of Tenant's request
and is able to accommodate such person or entity with the space Landlord has
available and the proposed assignee or subtenant is then currently a tenant of
the Landlord at the Project; (j) Landlord has ever evicted or been involved in
litigation with the proposed assignee or subtenant; (k) any guarantor of this
Lease refuses to consent to the Transfer or to execute a written agreement
reaffirming the guaranty; (l) Tenant is in default after expiration of any
applicable notice and cure periods at the time of the request; (m) if requested
by Landlord, the assignee or sublessee refuses to sign a non-disturbance and
attornment agreement in favor of Landlord's lender; (n) [intentionally omitted]
; or (o) the proposed assignee or subtenant is a person or entity then, or
during the prior six (6) months, negotiating with Landlord for the lease of
space in the Project unless Landlord is unable to accommodate such person or
entity with the space Landlord has available in the Project at the time of
Tenant's request.
12.3 Additional Terms and Conditions. The following terms and conditions
shall be applicable to any Transfer:
(a) Regardless of Landlord's consent, no Transfer shall release Tenant
from Tenant's obligations hereunder or alter the primary liability of Tenant to
pay the rent and other sums due Landlord hereunder and to perform all other
obligations to be performed by Tenant hereunder or release any guarantor from
its obligations under its guaranty.
(b) Landlord may accept rent from any person other than Tenant pending
approval or disapproval of an assignment or subletting.
(c) Neither a delay in the approval or disapproval of a Transfer, nor
the acceptance of rent, shall constitute a waiver or estoppel of Landlord's
right to exercise its rights and remedies for the breach of any of the terms or
conditions of this Section 12.
(d) The consent by Landlord to any Transfer shall not constitute a
consent to any subsequent Transfer by Tenant or to any subsequent or successive
Transfer by an assignee or subtenant. However, Landlord may consent to
subsequent Transfers or any amendments or modifications thereto without
notifying Tenant or anyone else liable on the Lease and without obtaining their
consent, and such action shall not relieve such persons from liability under
this Lease.
(e) In the event of any default under this Lease, Landlord may proceed
directly against Tenant, any guarantors or anyone else responsible for the
performance of this Lease, including any subtenant or assignee, without first
exhausting Landlord's remedies against any other person or entity responsible
therefor to Landlord, or any security held by Landlord.
(f) Landlord's written consent to any Transfer by Tenant shall not
constitute an acknowledgment that no default then exists under this Lease nor
shall such consent be deemed a waiver of any then existing default.
(g) The discovery of the fact that any financial statement relied upon
by Landlord in giving its consent to an assignment or subletting was materially
false shall, at Landlord's election, render Landlord's consent null and void.
(h) Landlord shall not be liable under this Lease or under any
assignment or sublease to any assignee or subtenant.
(i) No assignment or sublease may be modified or amended without
Landlord's prior written consent.
(j) Tenant or its agent shall not advertise the Premises for lease,
sublet or assignment for less Rent than the then current asking rent for space
in the Project.
12.4 Additional Terms and Conditions Applicable to Subletting. The
following terms and conditions shall apply to any subletting by Tenant of all or
any part of the Premises and shall be deemed included in all subleases under
this Lease whether or not expressly incorporated therein:
(a) Tenant hereby absolutely and unconditionally assigns and transfers
to Landlord all of Tenant's interest in all rentals and income arising from any
sublease entered into by Tenant, and Landlord may collect such rent and income
and apply same toward Tenant's obligations under this Lease; provided, however,
that until a default shall occur in the performance of Tenant's obligations
under this Lease which continues after the expiration of any applicable notice
and cure period, Tenant may receive, collect and enjoy the rents accruing under
such sublease. Landlord shall not, by reason of this or any other assignment of
such rents to Landlord nor by reason of the collection of the rents from a
subtenant, be deemed to have assumed or recognized any sublease or to be liable
to the subtenant for any failure of Tenant to perform and comply with any of
Tenant's obligations to such subtenant under such sublease, including, but not
limited to, Tenant's obligation to return any security deposit. Tenant hereby
irrevocably authorizes and directs any such subtenant, upon receipt of a written
notice from Landlord stating that a default exists in the performance of
Tenant's obligations under this Lease, to pay to Landlord the rents due as they
become due under the sublease. Tenant agrees that such subtenant shall have the
right to rely upon any such statement and request from Landlord, and that such
subtenant shall pay such rents to Landlord without any obligation or right to
inquire as to whether such default exists and notwithstanding any notice from or
claim from Tenant to the contrary.
(b) In the event Tenant shall default in the performance of its
obligations under this Lease, Landlord at its option and without any obligation
to do so, may require any subtenant to attorn to Landlord, in which event
Landlord shall undertake the obligations of Tenant under such sublease from the
time of the exercise of said option to the termination of such sublease;
provided, however, Landlord shall not be liable for any prepaid rents or
security deposit paid by such subtenant to Tenant or for any other prior
defaults of Tenant under such sublease.
12.5 Transfer Premium from Assignment or Subletting. Landlord shall be
entitled to receive from Tenant (as and when received by Tenant) as an item of
additional rent fifty percent (50%) of all amounts received by Tenant from such
assignee or subtenant in excess of the amounts payable by Tenant to Landlord
hereunder (the "Transfer Premium"). "Transfer Premium" shall mean all Base Rent,
additional rent or other consideration of any type whatsoever payable by the
assignee or subtenant in excess of the Base Rent and additional rent payable by
Tenant under this Lease. If less than all of the Premises is transferred,
the Base Rent and the additional rent shall be determined on a per rentable
square foot basis. The Transfer Premium shall be reduced by the bona fide third
party transaction costs actually paid by Tenant in order to assign the Lease or
to sublet a portion of the Premises. "Transfer Premium" shall also include, but
not be limited to, key money and bonus money paid by the assignee or subtenant
to Tenant in connection with such Transfer, and any payment in excess of fair
market value for services rendered by Tenant to the assignee or subtenant or for
assets, fixtures, inventory, equipment, or furniture transferred by Tenant to
the assignee or subtenant in connection with such Transfer. For purposes of
calculating the Transfer Premium, expenses will be amortized over the life of
the sublease. The provisions of this Section 12.5 shall not apply with respect
to a Permitted Transfer (as that term is defined in Paragraph 5 of the
Addendum).
12.6 Landlord's Option to Recapture Space. Notwithstanding anything to the
contrary contained in this Section 12, if Tenant shall request (i) to assign
this Lease, or (ii) sublease space in the Premises, the term of which sublease
shall expire during the last twelve (12) months of the Term, then Landlord shall
have the option, by giving written notice to Tenant ("Recapture Notice") within
thirty (30) days after receipt of Tenant's request for consent to such sublease
or assignment, to terminate this Lease and recapture the Premises. Tenant shall
have five (5) business days after receipt of such Recapture Notice to notify
Landlord of its intention to withdraw its request to assign or sublease the
Premises. If Tenant does not withdraw its request to assign or sublease the
Premises, then Landlord may terminate this Lease as of the commencement date of
the proposed sublease or assignment and recapture the Premises, whereupon this
Lease shall terminate. If Tenant so withdraws its request to assign or sublease
the Premises, then this Lease shall continue in full force and effect. Tenant
acknowledges that the purpose of this Section 12.6 is to enable Landlord to
receive profit in the form of higher rent or other consideration to be received
from an assignee or sublessee, to give Landlord the ability to meet additional
space requirements of other tenants of the Project and to permit Landlord to
control the leasing of space in the Project. Tenant acknowledges and agrees that
the requirements of this Section 12.6 are commercially reasonable and are
consistent with the intentions of Landlord and Tenant. The provisions of this
Section 12.6 shall not apply with respect to a Permitted Transfer.
12.7 Landlord's Expenses. In the event Tenant shall assign this Lease or
sublet the Premises or request the consent of Landlord to any Transfer, then
Tenant shall pay Landlord's reasonable costs and expenses incurred in connection
therewith, including, but not limited to, attorneys', architects', accountants',
engineers' or other consultants' fees.
13. Default; Remedies.
13.1 Default by Tenant. Landlord and Tenant hereby agree that the
occurrence of any one or more of the following events is a material default by
Tenant under this Lease and that said default shall give Landlord the rights
described in Section 13.2. Landlord or Landlord's authorized agent shall have
the right to serve any notice of default, notice to pay rent or quit or similar
notice.
(a) Tenant's failure to make any payment of Base Rent, Electric Energy
Charge, Tenant's Share of Operating Expense increases, parking charges, charges
for after hours HVAC, late charges, or any other payment required to be made by
Tenant hereunder, as and when due, where such failure shall continue for a
period of five (5) business days after written notice thereof from Landlord to
Tenant. In the event that Landlord serves Tenant with a notice to pay rent or
quit pursuant to applicable unlawful detainer statutes, such notice shall also
constitute the notice required by this Section 13.1(a).
(b) The abandonment of the Premises by Tenant in which event Landlord
shall not be obligated to give any notice of default to Tenant, unless expressly
required by law.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant
(other than those referenced in Sections 13.1(a) and (b), above), where such
failure shall continue for a period of thirty (30) days after written notice
thereof from Landlord to Tenant; provided, however, that if the nature of
Tenant's non-performance is such that more than thirty (30) days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within said thirty (30) day period and thereafter
diligently pursues such cure to completion. In the event that Landlord serves
Tenant with a notice to quit pursuant to applicable unlawful detainer statutes,
said notice shall also constitute the notice required by this Section 13.1(c).
(d) (i) The making by Tenant or any guarantor of any general
arrangement or general assignment for the benefit of creditors; (ii) Tenant or
any guarantor becoming a "debtor" as defined in 11 U.S.C. 101 or any successor
statute thereto (unless, in the case of a petition filed against Tenant or
guarantor, the same is dismissed within sixty (60) days); (iii) the institution
of proceedings seeking the appointment of a trustee or receiver to take
possession of substantially all of Tenant's assets located at the Premises or of
Tenant's interest in this Lease, where possession is not restored to Tenant
within thirty (30) days or the institution of a foreclosure proceeding against
Tenant's real or personal property; or (iv) the attachment, execution or other
judicial seizure of substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease, where such seizure is not discharged
within thirty (30) days. In the event that any provision of this Section 13.1(e)
is contrary to any applicable law, such provision shall be of no force or
effect.
(e) The discovery by Landlord that any financial statement,
representation or warranty given to Landlord by Tenant, or by any guarantor of
Tenant's obligations hereunder, is or was materially false.
(f) If Tenant is a corporation, limited liability company or a
partnership, the dissolution or liquidation of Tenant.
13.2 Remedies.
(a) In the event of any material default or breach of this Lease by
Tenant, Landlord may, at any time thereafter, with or without notice or demand,
and without limiting Landlord in the exercise of any right or remedy which
Landlord may have by reason of such default:
(i) Terminate Tenant's right to possession of the Premises. Upon
any such termination, Tenant shall immediately surrender possession of the
Premises to Landlord. Landlord reserves all rights and remedies available to it
pursuant to the terms and conditions of this Lease as well as under applicable
law. Tenant hereby grants Landlord the full and free right to enter the Premises
with process of law. Tenant releases Landlord of any liability for any damage
resulting therefrom and waives any right to claim damage for such re-entry.
Tenant also agrees that Landlord's right to re-lease or any other right given to
Landlord as a consequence of Tenant's default hereunder or by operation of law
is not relinquished. On termination of Tenant's right of possession, Landlord
shall be entitled to recover from Tenant: (i) the unpaid rent which had been
earned at the time of the termination; (ii) the amount by which the unpaid rent
which would have been earned after termination until the time of the award
exceeds the amount of any rental, if any, received for the Premises during such
time period; (iii) the amount by which the unpaid rent for the balance of the
Term of the Lease after the time of award exceeds the amount of any rent to be
received (net of re-letting expenses as described below) from any replacement
tenant occupying the Premises at the time of the award, or, if the Premises are
not occupied at the time of the award by a rent-paying replacement tenant, the
full amount of the rent to be earned hereunder for the balance of the Term of
the Lease discounted to
net present value assuming a discount rate of one percent (1%) above the
discount rate of the Federal Reserve Bank of New York in effect at the time of
the award; and provided further, however, that Landlord shall repay to Tenant
the excess of the foregoing amount over any rent received for the Premises
during the balance of the Term of the Lease (net of reletting expenses as
described below) similarly discounted; and (iv) at the time of the award any
other amount necessary to compensate Landlord for all the damage proximately
caused by Tenant's failure to perform its obligations under this Lease or which
in the ordinary course of events would likely result therefrom, including but
not limited to, all costs and expenses attributable to recovering possession of
the Premises, re-letting expenses (including the costs and expenses of any
necessary repairs, renovations and alterations to the Premises (collectively,
the "Costs of Reletting"), provided that in the event the relet term extends
beyond the date this Lease would have terminated in the absence of such default,
then the Costs of Reletting shall be prorated based upon the period of time in
the remaining Term of this Lease in relationship to the relet term under the
relet lease), costs of carrying the Premises (including but not limited to,
Landlord's payment of real property taxes and insurance premiums), actual legal
fees and associated costs and expenses. Landlord shall use commercially
reasonable efforts to relet the Premises. The phrase "reasonable efforts" as it
relates to Landlord's duty to attempt to relet the Premises, shall require
Landlord to do only the following: (i) notify Landlord's leasing agent in
writing of the availability of the Premises for reletting, (ii) post Landlord's
leasing contact telephone number in the Project management office, (iii) show
the Premises to any prospective tenant who requests to see the Premises and to
any prospective tenant specifically referred to Landlord by Tenant, and (iv)
show the "vacant" status of the Premises in posters and information brochures
used at leasing trade meetings and conventions. Landlord shall not be required
to relet the Premises before reletting any comparable space in the Project not
producing any income to Landlord and Landlord shall be entitled to consider
tenant quality, tenant-mix, and the nature of the Project and office centre in
making any leasing decision. If Landlord shall substantially perform the
foregoing then, anything in this Lease, or any statute or common law rule to the
contrary notwithstanding, Landlord shall be deemed to have met its duty to
mitigate its damages hereunder.
(ii) maintain Tenant's right of possession in which event
Landlord shall have the remedy which permits Landlord to continue this Lease in
effect after Tenant's breach and abandonment and recover rent as it becomes due.
Acts of maintenance or preservation, efforts to relet the Premises, or removal
or storage of Tenant's personal property, shall not constitute a termination of
Tenant's right to possession or act as an acceptance of any surrender of the
Premises. Landlord shall not be required to relet any or all of the Premises
prior to leasing other vacant space at the Project, nor shall Landlord be
required to accept a tenant: (i) that does not otherwise meet Landlord's
financial and other criteria, nor (ii) a tenant who intends to make a use other
than the use permitted by the Lease.
(iii) collect sublease rents (or appoint a receiver to collect
such rent) and otherwise perform Tenant's obligations at the Premises, it being
agreed, however, that the appointment of a receiver for Tenant shall not
constitute an election by Landlord to terminate this Lease.
(iv) pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the state in which the Premises
are located.
(b) No remedy or election hereunder shall be deemed exclusive, but
shall, wherever possible, be cumulative with all other remedies at law or in
equity. The expiration or termination of this Lease and/or the termination of
Tenant's right to possession of the Premises shall not relieve Tenant of
liability under any indemnity provisions of this Lease as to matters occurring
or accruing during the Term hereof or by reason of Tenant's occupancy of the
Premises.
(c) If Tenant abandons the Premises, Landlord may re-enter the
Premises and such re-entry shall not be deemed to constitute Landlord's election
to accept a surrender of the Premises or to otherwise relieve Tenant from
liability for its breach of this Lease. No surrender of the Premises shall be
effective against Landlord unless Landlord has entered into a written agreement
with Tenant in which Landlord expressly agrees to (i) accept a surrender of the
Premises and (ii) relieve Tenant of liability under the Lease. The delivery by
Tenant to Landlord of possession of the Premises shall not constitute the
termination of the Lease or the surrender of the Premises.
13.3 Default by Landlord. Landlord shall not be in default under this Lease
unless Landlord fails to perform obligations required of Landlord within thirty
(30) days after written notice by Tenant to Landlord and to the holder of any
mortgage or deed of trust encumbering the Project whose name and address shall
have theretofore been furnished to Tenant in writing, specifying wherein
Landlord has failed to perform such obligation; provided, however, that if the
nature of Landlord's obligation is such that more than thirty (30) days are
required for its cure, then Landlord shall not be in default if Landlord
commences performance within such thirty (30) day period and thereafter
diligently pursues the same to completion. This Lease and the obligations of
either party hereunder shall not be affected or impaired because such party is
unable to fulfill any of its obligations hereunder (other than the payment of
monetary obligations hereunder) or is delayed in doing so, if such inability or
delay is caused by reason of strike or other labor problems, acts of God, riot,
insurrection, governmental actions or requirements, or any other cause beyond
the reasonable control of such party (hereinafter, a "Force Majeure Event") ,
and the time for such party's performance shall be extended for the period of
any such delay. Financial inability of any party shall not be considered to be a
Force Majeure Event suffered by such party.
13.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant
to Landlord of Base Rent, Tenant's Share of Operating Expense increases, parking
charges, after hours HVAC charges, or other sums due hereunder will cause
Landlord to incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include, but are not
limited to, processing and accounting charges and late charges which may be
imposed on Landlord by the terms of any mortgage or trust deed encumbering the
Project. Accordingly, if any installment of Base Rent, Tenant's Share of
Operating Expense increases, parking charges, after hours HVAC charges or any
other sum due from Tenant shall not be received by Landlord when such amount
shall be due, then, without any requirement for notice to Tenant, Tenant shall
pay to Landlord a late charge equal to six percent (6%) of such overdue amount.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount, nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder including
the assessment of interest under Section 13.5. Notwithstanding anything to the
contrary in this Section 13.4, Landlord agrees to waive imposition of such late
charge on the first (1st) occasion in any twelve (12) month period, provided the
overdue payment is made within five (5) business days after Landlord gives
Tenant written notice that the payment was not made when due.
13.5 Interest on Past-due Obligations. Except as expressly herein provided,
any amount due to Landlord that is not paid when due shall bear interest at the
lesser of two percent (2%) per annum over the "prime rate" as established by
Citibank, N.A., or the maximum rate
permitted by applicable law. Payment of such interest shall not excuse or cure
any default by Tenant under this Lease; provided, however, that interest shall
not be payable on late charges incurred by Tenant nor on any amounts upon which
late charges are paid by Tenant.
13.6 Payment of Rent after Default. If Tenant fails to pay Base Rent,
Tenant's Share of Operating Expense increases, parking charges or any other
monetary obligation due hereunder on the date it is due, after Tenant's third
failure to pay any monetary obligation on the date it is due, at Landlord's
option, all monetary obligations of Tenant hereunder shall thereafter be paid by
cashiers check. If Landlord has required Tenant to make said payments by
cashiers check, Tenant's failure to make a payment by cashiers check shall be a
material default hereunder.
14. Landlord's Right to Cure Default; Payments by Tenant. All covenants and
agreements to be kept or performed by Tenant under this Lease shall be performed
by Tenant at Tenant's sole cost and expense and without any reduction of rent.
If Tenant shall fail to perform any of its obligations under this Lease, within
a reasonable time after such performance is required by the terms of this Lease,
Landlord may, but shall not be obligated to, after three (3) days' prior written
notice to Tenant, make any such payment or perform any such act on Tenant's
behalf without waiving its rights based upon any default of Tenant and without
releasing Tenant from any obligations hereunder. Tenant shall pay to Landlord,
within thirty (30) days after delivery by Landlord to Tenant of statements
therefor, an amount equal to the expenditures reasonably made by Landlord in
connection with the remedying by Landlord of Tenant's defaults pursuant to the
provisions of this Section 14.
15. Condemnation. If any portion of the Premises or the Project are taken under
the power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation"), this Lease shall
terminate as to the part so taken as of the date the condemning authority takes
title or possession, whichever first occurs; provided that if so much of the
Premises or Project are taken by such condemnation as would substantially and
adversely affect the operation and profitability of Tenant's business conducted
from the Premises, and said taking lasts for ninety (90) days or more, Tenant
shall have the option, to be exercised only in writing within thirty (30) days
after Landlord shall have given Tenant written notice of such taking (or in the
absence of such notice, within thirty (30) days after the condemning authority
shall have taken possession), to terminate this Lease as of the date the
condemning authority takes such possession. If a taking lasts for less than
ninety (90) days, Tenant's rent shall be abated during said period but Tenant
shall not have the right to terminate this Lease. If Tenant does not terminate
this Lease in accordance with the foregoing, this Lease shall remain in full
force and effect as to the portion of the Premises remaining, except that the
rent and Tenant's Share of Operating Expenses shall be reduced in the proportion
that the usable floor area of the Premises taken bears to the total usable floor
area of the Premises. Common Areas taken shall be excluded from the Common Areas
usable by Tenant and no reduction of rent shall occur with respect thereto or by
reason thereof. Landlord shall have the option in its sole discretion to
terminate this Lease as of the taking of possession by the condemning authority,
by giving written notice to Tenant of such election within thirty (30) days
after receipt of notice of a taking by condemnation of any part of the Premises
or the Project. Any award for the taking of all or any part of the Premises or
the Project under the power of eminent domain or any payment made under threat
of the exercise of such power shall be the property of Landlord, whether such
award shall be made as compensation for diminution in value of the leasehold or
for the taking of the fee, as severance damages, or as damages for tenant
improvements; provided, however, that Tenant shall be entitled to any separate
award for loss of or damage to Tenant's trade fixtures and removable personal
property and any award available for the relocation of Tenant's business. In the
event that this Lease is not terminated by reason of such condemnation, and
subject to the requirements of any lender that has made a loan to Landlord
encumbering the Project, Landlord shall to the extent of severance damages
received by Landlord in connection with such condemnation, repair any damage to
the Project caused by such condemnation except to the extent that Tenant has
been reimbursed therefor by the condemning authority. Tenant shall pay
any amount in excess of such severance damages required to complete such repair.
Except as set forth in this Section 15, Landlord shall have no liability to
Tenant for interruption of Tenant's business upon the Premises, diminution of
Tenant's ability to use the Premises, or other injury or damage sustained by
Tenant as a result of such condemnation.
16. Vehicle Parking.
16.1 Use of Parking Facilities. During the Term and subject to the rules
and regulations attached hereto as Exhibit "C" as modified by Landlord from time
to time (the "Rules"), Tenant shall be entitled to use the number of parking
spaces set forth in Section 1.13 in the parking facility of the Project .
Landlord reserves the right at any time to relocate Tenant's reserved and
unreserved parking spaces, provided such new spaces shall be located in the same
general area as the original parking spaces and Landlord does not reduce
Tenant's covered "reserved" spaces. The foregoing notwithstanding, Landlord
shall not have the right to relocate Tenant's reserved parking spaces designated
as not being subject to relocation on Exhibit A-2 unless required by law. If
Tenant commits or allows in the parking facility any of the activities
prohibited by the Lease or the Rules, then Landlord shall have the right,
without notice, in addition to such other rights and remedies that it may have,
to remove or tow away the vehicle involved and charge the cost to Tenant, which
cost shall be immediately payable by Tenant upon demand by Landlord. Tenant's
parking rights are the personal rights of Tenant and Tenant shall not transfer,
assign, or otherwise convey its parking rights separate and apart from this
Lease.
See Addendum Paragraph 6
16.2 Parking Charges. [Intentionally omitted].
17. Broker's Fee. Tenant and Landlord each represent and warrant to the other
that neither has had any dealings or entered into any agreements with any
person, entity, broker or finder other than the persons, if any, listed in
Section 1.15, in connection with the negotiation of this Lease, and no other
broker, person, or entity is entitled to any commission or finder's fee in
connection with the negotiation of this Lease, and Tenant and Landlord each
agree to indemnify, defend and hold the other harmless from and against any
claims, damages, costs, expenses, attorneys' fees or liability for compensation
or charges which may be claimed by any such unnamed broker, finder or other
similar party by reason of any dealings, actions or agreements of the
indemnifying party. Landlord shall pay any commission(s) due Broker identified
in Section 1.15, according to separate agreement between Broker and Landlord.
18. Estoppel Certificate.
18.1 Delivery of Certificate.
Tenant shall at any time upon not less than ten (10) days' prior written notice
from Landlord execute, acknowledge and deliver to Landlord a statement in
writing certifying such information as Landlord may reasonably request
including, but not limited to, the following: (a) that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease, as so modified, is in full force
and effect) (b) the date to which the
Base Rent and other charges are paid in advance and the amounts so payable, (c)
that there are not, to Tenant's knowledge, any uncured defaults or unfulfilled
obligations on the part of Landlord, or specifying such defaults or unfulfilled
obligations, if any are claimed, and (d) that all tenant improvements to be
constructed by Landlord, if any, have been completed in accordance with
Landlord's obligations and Tenant has taken possession of the Premises. Any such
statement may be conclusively relied upon by any prospective purchaser or
encumbrancer of the Project.
18.2 Failure to Deliver Certificate. At Landlord's option, the failure of
Tenant to deliver such statement within such time shall constitute a material
default of Tenant hereunder.
18.3 Financial Information. If Landlord desires to finance, refinance, or
sell the Project, or any part thereof, Tenant hereby agrees to deliver, and to
cause any guarantor of Tenant's obligations to deliver, to any lender or
purchaser designated by Landlord such financial statements of Tenant or any
guarantor and other information as may be reasonably required by such lender or
purchaser. All such financial statements shall be received by Landlord and such
lender or purchaser in confidence and shall be used only for the purposes herein
set forth.
19. Landlord's Liability. Tenant acknowledges that Landlord shall have the right
to transfer all or any portion of its interest in the Project and to assign this
Lease to the transferee. Tenant agrees that in the event of such a transfer
Landlord shall automatically be released from all liability under this Lease
accruing from and after the date of such transfer provided such transferee has
assumed in writing all of Landlord's obligations hereunder; and Tenant hereby
agrees to look solely to Landlord's transferee for the performance of Landlord's
obligations hereunder after the date of the transfer. Upon such a transfer,
Landlord shall, at its option, return Tenant's security deposit to Tenant or
transfer Tenant's security deposit to Landlord's transferee and, in either
event, Landlord shall have no further liability to Tenant for the return of its
security deposit. Subject to the rights of any lender holding a mortgage or deed
of trust encumbering all or part of the Project, Tenant agrees to look solely to
Landlord's equity interest in the Project (including any condemnation awards,
insurance or sales proceeds, or rental income attributable to the Project) for
the collection of any judgment requiring the payment of money by Landlord
arising out of (a) Landlord's failure to perform its obligations under this
Lease or (b) the negligence or willful misconduct of Landlord, its partners,
employees and agents. No partner, employee or agent of Landlord shall be
personally liable for the performance of Landlord's obligations hereunder or be
named as a party in any lawsuit arising out of or related to, directly or
indirectly, this Lease and the obligations of Landlord hereunder. The
obligations under this Lease do not constitute personal obligations of the
individual partners of Landlord and Tenant shall not seek recourse against the
individual partners of Landlord or their assets.
20. Indemnity. Except as set forth in Section 9.4 of the Lease, Tenant hereby
agrees to indemnify, defend and hold harmless Landlord and its employees,
partners, agents, lenders and ground lessors (said persons and entities are
hereinafter collectively referred to as the "Landlord Indemnified Parties") from
and against any and all liability, loss, cost, damage, claims, loss of rents,
liens, judgments, penalties, fines, settlement costs, investigation costs, the
cost of consultants and experts, attorneys' fees, court costs and other legal
expenses, the effect of environmental contamination, the removal, remediation
and/or abatement of Hazardous Substances (as said term is defined in Section 22
of the Lease) and other expenses (hereinafter collectively referred to as
"Damages") arising out of or related to a "Landlord Indemnified Matter," as
defined below. For purposes of this Paragraph 20, a "Landlord Indemnified
Matter" shall mean any matter for which one or more of the Landlord Indemnified
Parties incurs liability or Damages if the liability or Damages arise out of or
involve, i) Tenant or its employees or agents, (all of said persons
or entities are hereinafter collectively referred to as "Tenant Parties"),
negligent use of the Premises or the Project; ii) any negligent act or omission
of a Tenant Party; iii) Tenant's failure to perform any of its obligations under
the Lease; iv) the existence, use or disposal of any Hazardous Substance brought
on to the Project by a Tenant Party; or v) any other matter for which Tenant has
agreed to indemnify Landlord pursuant to any other provision of this Lease.
Except as set forth in Section 9.4 of the Lease, Landlord hereby agrees to
indemnify, defend and hold harmless Tenant and its shareholders, affiliated
entities, employees, partners, agents, and lenders (said persons and entities
are hereinafter collectively referred to as the "Tenant Indemnified Parties")
from and against any and all Damages arising out of or related to "Tenant
Indemnified Matters," as defined below. For purposes of this Paragraph 20, a
"Tenant Indemnified Matter" shall mean any matter for which one or more of the
Tenant Indemnified Parties incurs liability or Damages if the liability or
Damages arise out of or involve, i) Landlord or its employees, partners, agents,
lenders and ground lessors (said persons are hereinafter collectively referred
to as "Landlord Parties") negligent use, occupancy or operation of the Project;
ii) any negligent act or omission of a Landlord Party; iii) Landlord's failure
to perform any of its obligations under the Lease or the Work Letter Agreement;
iv) the existence, use or disposal of any Hazardous Substances brought on to the
Project by a Landlord Party; or v) any other matters for which Landlord has
agreed to indemnify Tenant pursuant to any other provisions of this Lease.
Landlord's and Tenant's obligations hereunder shall include, but shall not be
limited to i) compensating the Landlord Indemnified Parties or the Tenant
Indemnified Parties, as the case may be, for damages arising out of Landlord
Indemnified Matters or Tenant Indemnified Matters and ii) providing defense,
with counsel reasonably satisfactory to the indemnified party, at the other
party's sole expense, of any claims, actions or proceedings arising out of or
relating to a Landlord Indemnified Matter or a Tenant Indemnified Matter, as the
case may be, whether or not litigated or reduced to judgment and whether or not
well founded. The indemnified parties need not first pay any Damages to be
indemnified hereunder. This indemnity is intended to apply to the fullest extent
permitted by applicable law. The parties' obligations under this Paragraph shall
survive the expiration or termination of the Lease.
21. Exemption of Landlord from Liability. Landlord shall not be liable for
injury to Tenant's business or any loss of income therefrom or for loss of or
damage to the goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers, or any other person in or about the Project, nor
shall Landlord be liable for injury to the person of Tenant, Tenant's employees,
agents or contractors, whether such damage or injury is caused by or results
from any cause whatsoever including, but not limited to, theft, criminal
activity at the Project, negligent security measures, bombings or bomb scares,
hazardous waste (except as otherwise set forth in Section 22(p), fire, steam,
electricity, gas, water or rain, breakage of pipes, sprinklers, plumbing, air
conditioning or lighting fixtures, or from any other cause, whether said damage
or injury results from conditions arising upon the Premises or upon
other portions of the Project, or from other sources or places, or from new
construction or the repair, alteration or improvement of any part of the
Project, or of the equipment, fixtures or appurtenances applicable thereto,
unless the cause of the damage or injury arises out of Landlord's or its
employees or agents willful misconduct. Landlord shall not be liable for any
damages arising from any act or neglect of any other tenant, occupant or user of
the Project, nor from the failure of Landlord to enforce the provisions of the
lease of any other tenant of the Project. Notwithstanding anything to the
contrary contained in this Section 21, nothing in this Section 21 shall relieve
Landlord from liability to the extent resulting from (x) the willful misconduct
of Landlord or any of its agents, partners or employees, or (y) a breach of this
Lease by Landlord. Tenant, as a material part of the consideration to Landlord
hereunder, hereby assumes all risk of damage to property of Tenant or injury to
persons, in, upon or about the Project arising from any cause, except as
otherwise set forth in this Section 21 and Tenant hereby waives all claims in
respect thereof against Landlord, its agents, partners and employees. Landlord,
as a material part of the consideration to Tenant hereunder, hereby agrees that
Tenant shall not be liable for injury to Landlord's business or for loss of or
damage to the goods, wares, merchandise or other property of Landlord or
Landlord's employees, unless due to or caused by the willful misconduct of
Tenant, its employees or agents, and Landlord hereby waives all claims in
respect thereof against Tenant, its employees and agents. The foregoing
notwithstanding, nothing herein shall relieve Tenant from liability to the
extent resulting from (x) the willful misconduct of Tenant or any of its agents,
partners or employees, or (y) a breach of this Lease by Tenant.
22. Environmental Provisions.
(a) For purposes of this lease, the following additional definitions
shall apply:
(i) "Hazardous Substances" shall include any pollutants,
petroleum products, dangerous substances, toxic substances, hazardous wastes,
hazardous materials, or hazardous substances as defined in or pursuant to the
Industrial Site Recovery Act and all rules, regulations, orders, directives and
opinions promulgated thereunder ("ISRA") N.J.S.A. 13:1K-6 et seq.; the Spill
Compensation and Control Act, N.J.S.A. 58:10-23.11 et seq. and all rules,
regulations, orders, directives and opinions promulgated thereunder ("Spill
Act"); the Solid Waste Management Act, N.J.S.A. 13:1E-1 et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; the Comprehensive
Environmental Response Compensation and Liability Act, 42 U.S.C. 9601 et seq.
and all rules, regulations, orders, directives and opinions promulgated
thereunder ("CERCLA"); or any other Federal, State or Local environmental law or
ordinance; and all rules, regulations, orders, directives and opinions
promulgated under the foregoing, any amendments to any of the foregoing and any
successor legislation to any of the foregoing (collectively "Environmental
Laws");
(ii) "Release" means releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping;
(iii) "Notice" means any summons, citation, directive, order,
claim, litigation, investigation, proceeding, judgment, letter, submission or
other communication, written or oral, actual or threatened, from the New Jersey
Department of Environmental Protection ("DEP"), the United States Environmental
Protection Agency ("EPA"), any other Federal, State or Local agency or authority
or any other entity or any individual, concerning any act or omission resulting
or which may result in the Release of Hazardous Substances into the waters or
onto the lands of the State of New Jersey or into waters outside the
jurisdiction of the State of New Jersey or into the "environment" as such terms
are defined in CERCLA, or otherwise related to any Environmental Law or Tenant's
obligations pursuant to this Section 22. "Notice" shall include the imposition
of any liens of any real or personal property or revenues of Tenant including,
but not limited to, Tenant's interest in the Premises or any of Tenant's
property located thereon, pursuant
to or resulting from the violation of any Environmental Law, or any other
governmental actions, orders or permits or any knowledge after due inquiry and
investigation of any facts which could give rise to any of the above.
(b) To the extent that Tenant may be permitted under applicable law to
use the Premises and/or the Project for the generating, manufacturing, refining,
transporting, treating, storing, handling, disposing, transferring or processing
of Hazardous Substances, Tenant shall ensure that said use shall be conducted at
all times strictly in accordance with applicable Environmental Law. Tenant shall
not cause nor permit as a result of any intentional or unintentional act or
omission, a Release of Hazardous Substances. If any intentional or unintentional
act or omission results in any actual or alleged Release of Hazardous
Substances, Tenant promptly shall conduct necessary sampling and cleanup and
remediate such Release in accordance with applicable Environmental Laws.
(c) Tenant shall not operate any business at the Premises which shall
be subject to ISRA. Tenant hereby represents that its Standard Industrial
Classification (herein "SIC") Number is 422990 as determined by reference to the
SIC Manual and its operations shall consist of the Use described in Section 1.5.
Notwithstanding any provision of ISRA to the contrary, if the Tenant's
operations become subject to ISRA, Tenant, at Tenant's own expense, shall do
whatever is necessary to comply with ISRA whenever an obligation to do so
arises. If Landlord reasonably suspects that Tenant's operations may be subject
to ISRA or if Landlord needs a letter from DEP on behalf of Tenant in connection
with a sale or refinancing of the Project, then if requested to do so by
Landlord, but no more often than once per year, Tenant shall obtain a letter
from DEP or any successor agency confirming that ISRA does not apply to Tenant's
operations. If such letter is obtained due to Landlord's belief that Tenant's
operations are subject to ISRA, Tenant shall bear all costs of obtaining such
letter. If, however, such letter is requested due to a sale or refinancing of
the Project, Landlord shall bear the costs of obtaining such letter. At no
expense to Landlord, Tenant promptly shall provide all information requested by
Landlord regarding or in furtherance of ISRA compliance. Tenant shall sign any
affidavit concerning compliance with Environmental Laws submitted by Landlord
which is true, accurate and complete; if an affidavit is not true, accurate and
complete, Tenant shall provide the necessary information to make it true,
accurate or complete and then shall sign same.
(d) Tenant promptly shall furnish Landlord with true copies of any
Notices of any nature made by Tenant to, or received by Tenant from DEP, EPA, or
any local, state or federal authority.
(e) Notwithstanding anything in this Lease to the contrary, and
without limiting any other provisions of this Section 22, Tenant, at its sole
cost and expense, shall observe, comply and fulfill all of the terms and
provisions of all applicable Environmental Laws, as the same may be amended from
time to time, as they relate to Tenant's use and occupancy of the Premises
during the term of this Lease.
Without limiting the foregoing, Tenant agrees:
(i) That it shall not do or omit to do nor suffer the commission
or omission of any act, the commission or omission of which is prohibited by or
may result in liability pursuant to any Environmental Law, including without
limitation, the Release of Hazardous Substances;
(ii) Unless such event is triggered by the act of Landlord,
whenever the provisions of any Environmental Law requires the "owner or
operator" of the Premises to do any act, Tenant on behalf of Tenant and/or
Landlord, as the case may be, shall do such act at its sole cost and expense,
including the making of all submissions and the providing of all information, it
being the intention of the parties hereto that Landlord shall be free
of all expenses and obligations arising from or in connection with compliance
with Environmental Laws relating to the Premises and that Tenant shall fulfill
all such obligations and pay all such expenses.
(f) In the event there shall be filed a lien against the Premises
and/or the Project arising out of a claim(s) by DEP pursuant to the provisions
of the Spill Act or by EPA pursuant to the provisions of CERCLA, Tenant
immediately either shall: 1) pay the claim and remove the lien from the Premises
and/or the Project; or, ii) furnish a bond, cash receipt or other security
satisfactory to Landlord sufficient to discharge the claim out of which the lien
arises.
(g) (i) Tenant promptly shall provide Landlord with all documentation
and correspondence provided to DEP pursuant to the Worker and Community Right to
Know Act, N.J.S.A. 34:5A-1 et seq., and all rules, regulations, orders,
directives and opinions promulgated thereunder.
(ii) Tenant promptly shall supply Landlord all reports and
notices made by Tenant pursuant to the Hazardous Substance Discharge Reports and
Notices Act, N.J.S.A. 13:1K-15, et seq. and all rules, regulations, orders,
directives and opinions promulgated thereunder.
(iii) Tenant promptly shall provide Landlord with a copy of all
permits obtained pursuant to any Environmental Law.
(h) Tenant acknowledges that for Landlord to comply with the
requirements of Environmental Laws, Landlord from time to time, may have to
enter the Premises. Landlord and/or its agents shall have an irrevocable license
and right to enter the Premises for such purposes. All such entry by Landlord
and/or its agents shall be upon reasonable notice to Tenant.
(i) Tenant agrees to cooperate with Landlord to provide any
information necessary to Landlord in order to effect compliance with any
Environmental Law and to execute any documents requested by Landlord in
connection with compliance with any Environmental Law.
(j) Tenant shall cooperate fully in allowing, from time to time, such
examinations, tests, inspections and reviews of the Premises as Landlord, in its
sole and absolute discretion, shall determine to be advisable in order to
evaluate any potential environmental problems or Tenant's compliance with
Environmental Laws.
(k) Tenant shall indemnify, defend and hold Landlord harmless from any
and all fines, suits, procedures, claims, liabilities, costs and actions of any
kind, including counsel fees (including those incurred to enforce this indemnity
or for any other purpose) arising out of or in any way related to (1) any spills
or discharges of Hazardous Substances at the Premises and/or Project caused by
Tenant or (2) Tenant's failure to comply with the provisions of this Lease.
Tenant's obligations and liabilities pursuant to this Lease shall continue for
so long as Landlord remains responsible or liable under Environmental Laws or
otherwise for any spills or discharges of Hazardous Substances and/or for any
violations of Environmental Laws which occur during Tenant's possession of the
Premises. Tenant's failure to abide by the terms of this Section shall be
enforceable by injunction.
(l) Notwithstanding anything to the contrary contained in this Lease,
Tenant shall not be responsible for complying with any Environmental Law in
connection with any spill or Release of Hazardous Substances which shall have
occurred prior to the Possession Date of this Lease.
(m) In the event Tenant shall fail to comply in full with this
Section, Landlord, at its option, may perform any and all of Tenant's
obligations as aforesaid, and all costs and expenses so incurred by Landlord
shall be deemed a claim against Tenant as Additional Rent payable on demand.
(n) In no event shall Landlord be liable or responsible to Tenant or
anyone claiming through or under Tenant for the failure of any other tenant or
other person to comply with any Environmental Law and Tenant shall not be
excused from the performance of any obligation hereunder due to such failure.
(o) The provisions of this Section 22 shall survive the expiration or
earlier termination of this Lease, regardless of the reason for such termination
and compliance with the provisions of this Section 22 may require Tenant to
expend funds or perform acts after the expiration or termination of this Lease.
Tenant agrees to expend such funds and/or perform such acts and shall not be
excused therefrom notwithstanding any expiration or termination of this Lease,
it being agreed and acknowledged that Landlord would not have entered into this
Lease but for the provisions of this Section 22.
(p) Landlord represents and warrants that, as of the date of this
Lease, to the best of its knowledge and belief there are no Hazardous Materials
on, in or under the Premises or the Building. Tenant shall have no liability
arising from the existence or disposal of Hazardous Material brought into the
Building by anyone other than Tenant. Landlord shall indemnify, defend and hold
harmless Tenant from and against any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses which arise solely as a result of
the existence or disposal of Hazardous Material brought on, in or under the
Premises, the Building or the Project caused by Landlord, its employees or
agents. Landlord's covenants shall survive the expiration or earlier termination
of the Lease. Notwithstanding the foregoing, both parties hereto recognize and
acknowledge that the other party or their respective agents may use and store
within the Building reasonable quantities of customary office and cleaning
supplies; provided such items are stored, used and disposed of in accordance
with applicable federal, state or local law.
23. Medical Waste Disposal. If Tenant produces medical waste, Landlord may, at
its option, provide medical waste disposal services to Tenant. If Landlord
elects to provide such services, Landlord may require Tenant to use said
services. Landlord, at its option, may bill Tenant directly for such services,
which amounts shall then constitute additional rent hereunder, or Landlord may
include the cost of providing such services in Operating Expenses. Tenant waives
its right to the fullest extent allowed by law to assert any claim against
Landlord in connection with the negligent provision of medical waste disposal
services by Landlord. In the event Landlord is unable or chooses not to provide
such disposal services to Tenant, Tenant shall arrange for the disposal of its
medical waste and such disposal shall be done in compliance with all applicable
laws. Tenant hereby agrees to indemnify, defend and hold harmless Landlord
against any cost, loss, liability, action, suit or expense (including attorneys'
fees) arising out of or relating to the existence of or the disposal of medical
waste produced by Tenant at the Premises.
24. Tenant Improvements. Landlord shall perform "Landlord's Work" in accordance
with Paragraph 7 of the Addendum. Except as expressly provided herein to the
contrary, Tenant acknowledges and agrees that Landlord shall not be obligated to
construct any tenant improvements on behalf of Tenant. Except as set forth in
Paragraph 7 of the Addendum, it is specifically understood and agreed that
Landlord has no obligation and has made no promises to alter, remodel, improve,
renovate, repair or decorate the Premises, the Project, or any part thereof, or
to provide any allowance for such purposes, and that no representations
respecting the condition of the Premises or the Project have been made by
Landlord to Tenant.
See Addendum Paragraph 7
25. Subordination.
25.1 Effect of Subordination. This Lease, and any Option (as defined in
Section 26 below) granted hereby shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation or security now or hereafter
placed upon the Project and to any and all advances made on the security thereof
and to all renewals, modifications, consolidations, replacements and extensions
thereof. Notwithstanding such subordination, Tenant's right to quiet possession
of the Premises shall not be disturbed if Tenant is not in default and so long
as Tenant shall pay the rent and observe and perform all of the provisions of
this Lease, unless this Lease is otherwise terminated pursuant to its terms. In
the event of a foreclosure of any such mortgage or the termination of this
Lease, Tenant will, upon request of any person or party succeeding to the
interest of Landlord as a result of such foreclosure or termination,
automatically become the Tenant of such successor in interest without change in
the terms or other provisions of this Lease. Upon request by Landlord's
mortgagee or such successor in interest, Tenant shall execute and deliver, on
terms and conditions reasonably acceptable to the parties, an instrument or
instruments confirming the attornment herein provided for. If any mortgagee,
trustee or ground lessor shall elect to have this Lease and any Options granted
hereby prior to the lien of its mortgage, deed of trust or ground lease, and
shall give written notice thereof to Tenant, this Lease and such Options shall
be deemed prior to such mortgage, deed of trust or ground lease, whether this
Lease or such Options are dated prior or subsequent to the date of said
mortgage, deed of trust or ground lease or the date of recording thereof. In the
event that the Project shall become subject to any lien of any mortgage, deed of
trust or any other hypothecation or security after the date hereof, then
Tenant's agreement to subordinate set forth herein shall be conditioned upon
Landlord obtaining a subordination, non-disturbance and attornment agreement on
such lender's standard form on behalf of Tenant. Landlord agrees to endeavor to
have such lender agree to add language to such subordination, non-disturbance
and attornment agreement requiring the lender to release the insurance proceeds
for restoration of any damage.
25.2 Execution of Documents. Tenant agrees to execute and acknowledge any
documents required to effectuate an attornment, a subordination, or to make this
Lease or any Option granted herein prior to the lien of any mortgage, deed of
trust or ground lease, as the case may be. Tenant's failure to execute such
documents within ten (10) days after written demand shall constitute a material
default by Tenant hereunder.
25.3 Obligations of Mortgagee. Anything herein contained to the contrary
notwithstanding, under no circumstances shall any mortgagee or purchaser upon
foreclosure, or any assignee or lessee of such mortgagee or purchaser, as the
case may be, whether or not it shall have succeeded to the interests of the
Landlord under this Lease, be:
(a) Liable for any act, omission or default of any prior landlord
(except in the event of a default which continues after the date of such
transfer) or for the return of any security deposit or part thereof not actually
received by such lessor, mortgagee, purchaser, assignee, or lessee, as the case
may be; or
(b) subject to any offsets, claims or defenses that the Tenant might
have against any prior landlord; or
(c) bound by any Base Rent or other payment required to be made by
Tenant hereunder that Tenant might have paid to any prior landlord for more than
one month in advance or for more than three months in advance where such rent
payments are payable at intervals of more than one month; or
(d) bound by any modification, amendment or abridgment of the Lease,
or any cancellation or surrender of the same (except any such cancellation made
by Landlord as a result of a default by Tenant), made without its prior written
approval.
25.4 Condition of Subordination. Notwithstanding anything to the contrary
contained herein, Landlord and Tenant acknowledge that Tenant is subordinating
its interest in this Lease, and executing and delivering this Lease to Landlord
conditionally upon the receipt by Tenant of a subordination, non-disturbance and
attornment agreement (hereinafter the "SNDA"), duly executed by Landlord's
current mortgagee (Fleet National Bank, as Agent) and the parties hereto, in
form and substance as set forth on Exhibit K attached hereto. In the event
Tenant does not receive a fully executed counterpart of the SNDA within
forty-five (45) days of the date hereof, Tenant shall have the right to
terminate this Lease upon written notice to Landlord. In the event of such
termination, Landlord shall return to Tenant the Letter of Credit delivered
herewith, and any other monies deposited hereunder, and thereafter, neither
party shall have any further obligations to the other with respect to this
Lease."
26. Options.
26.1 Definition. As used in this Lease, the word "Option" has the following
meaning: (1) the right or option to extend the Term of this Lease or to renew
this Lease, and (2) the option or right of first refusal to lease the Premises
or the right of first offer to lease the Premises or the right of first refusal
to lease other space within the Project or the right of first offer to lease
other space within the Project. Any Option granted to Tenant by Landlord must be
evidenced by a written option agreement attached to this Lease as a rider or
addendum or said option shall be of no force or effect.
26.2 Options Personal. Each Option granted to Tenant in this Lease (other
than the Option to Renew contained in Paragraph 8 of the Addendum), if any, is
personal to the original Tenant and any Permitted Transferee as defined in
Paragraph 5 of the Addendum, and may be exercised only by the original Tenant or
Permitted Transferee while occupying the entire Premises and may not be
exercised or be assigned, voluntarily or involuntarily, by or to any person or
entity other than Tenant, including, without limitation, any permitted
transferee as defined in Section 12. The Options, if any, herein granted to
Tenant are not assignable separate and apart from this Lease, nor may any Option
be separated from this Lease in any manner, either by reservation or otherwise.
If at any time an Option is exercisable by Tenant, the Lease has been assigned,
or a sublease exists as to any portion of the Premises other than to a Permitted
Transferee, the Option shall be deemed null and void and neither Tenant nor any
assignee or subtenant shall have the right to exercise the Option.
26.3 Multiple Options. In the event that Tenant has multiple Options to
extend or renew this Lease a later Option cannot be exercised unless the prior
Option to extend or renew this Lease has been so exercised.
26.4 Effect of Default on Options. Tenant shall have no right to exercise
an Option (i) during the time commencing from the date Landlord gives to Tenant
a notice of default pursuant to Section 13.1 and continuing until the
noncompliance alleged in said notice of default is cured, or (ii) if Tenant is
in default of any of the terms, covenants or conditions of this Lease. The
period of time within which an Option may be exercised shall not be extended or
enlarged by reason of Tenant's inability to exercise an Option because of the
provisions of this Section 26.4.
26.5 Limitations on Options. [Intentionally omitted]
See Addendum Paragraphs 8, 9 and 10
27. Landlord Reservations. Landlord shall have the right: (a) to change the name
and address of the Project or Building upon not less than ninety (90) days prior
written notice if, and only if, directed to do so by a governmental or other
authority having jurisdiction thereover; (b) to provide and install Building
standard graphics on or near the door of the Premises and such portions of the
Common Areas as Landlord shall determine, in Landlord's sole discretion it being
agreed that the expense of installing such Building standard graphics shall be
considered an Operating Expense, as and to the extent provided in Section 5.1);
(c) to permit any tenant the exclusive right to conduct any business as long as
such exclusive right does not conflict with any rights expressly given herein;
and (d) subject to the rights granted to Tenant pursuant to Paragraph 11 of the
Addendum, to place signs, notices or displays upon the roof, interior, exterior
or Common Areas of the Project. Tenant shall not use a representation
(photographic or otherwise) of the Building or the Project or their name(s) in
connection with Tenant's business or suffer or permit anyone, except in an
emergency, to go upon the roof of the Building. Landlord reserves the right to
use the exterior walls of the Premises, and the area beneath, adjacent to and
above the Premises together with the right to install, use, maintain and replace
equipment, machinery, pipes, conduits and wiring through the Premises, which
serve other parts of the Project provided that Landlord's use does not
unreasonably interfere with Tenant's use of the Premises. Notwithstanding
Landlord's limited right to change the name of the Building as set forth in
subsection (a) above, Landlord shall have the right, at any time during the Term
of the Lease, to place signage containing the Building address on the exterior
of the Building at the front entrance (i.e., canopy or glass doors).
28. Changes to Project. Landlord shall have the right, in Landlord's sole
discretion, from time to time, to make changes to the size, shape, location,
number and extent of the improvements comprising the Project (hereinafter
referred to as "Changes") including, but not limited to, the Project interior
and exterior, the Common Areas, elevators, escalators, restrooms, HVAC,
electrical systems, communication systems, fire protection and detection
systems, plumbing systems, security systems, parking control systems, driveways,
entrances, parking spaces, parking areas and landscaped areas so long as such
Changes do not have a permanent material adverse effect on Tenant's use and
enjoyment of or access to the Premises. In connection with the Changes, Landlord
may, among other things, erect scaffolding or other necessary structures at the
Project, limit or eliminate access to portions of the Project, including
portions of the Common Areas, or perform work in the Building, which work may
create noise, dust or leave debris in the Building. Tenant hereby agrees that
such Changes and Landlord's actions in connection with such Changes shall in no
way constitute a constructive eviction of Tenant or entitle Tenant to any
abatement of rent. Landlord shall have no responsibility or for any reason be
liable to Tenant for any direct or indirect injury to or interference with
Tenant's business arising from the Changes, nor shall Tenant be entitled to any
compensation or damages from Landlord for any inconvenience or annoyance
occasioned by such Changes or Landlord's actions in connection with such
Changes.
29. Substitution of Other Premises. [Intentionally omitted].
30. Holding Over. If Tenant remains in possession of the Premises or any part
thereof after the expiration or earlier termination of the Term hereof, such
occupancy shall be a tenancy from month to month upon all the terms and
conditions of this Lease pertaining to the obligations of Tenant, except that
(i) for the first three (3) months following the expiration or earlier
termination of the Term, the Base Rent payable shall be one hundred twenty-five
percent (125%) of the Base Rent payable immediately preceding the termination
date of this Lease, (ii) for the fourth through sixth months following the
expiration or earlier termination of the Lease, the Base Rent payable shall be
one hundred fifty percent (150%) of the Base Rent payable immediately preceding
the termination date of the Lease, and (iii) thereafter, the Base Rent payable
shall be two hundred percent (200%) of the Base Rent payable immediately
preceding the termination date of the Lease, and all Options, if any, shall be
deemed terminated and be of no further effect. Nothing contained herein shall be
construed to constitute Landlord's consent to Tenant holding over at the
expiration or earlier termination of the Lease Term. In the event Tenant remains
in possession of the Premises or any part thereof for more than two hundred
seventy (270) days after the expiration or earlier termination of the Term
hereof, Tenant hereby agrees to indemnify, hold harmless and defend Landlord
from any cost, loss, claim or liability (including attorneys' fees) Landlord may
incur as a result of Tenant's failure to surrender possession of the Premises to
Landlord on or before the two hundred seventieth (270th) day following the
expiration or earlier termination of the Term hereof.
31. Landlord's Access.
31.1 Access. Landlord and Landlord's agents and employees shall have the
right to enter the Premises at reasonable times and upon reasonable notice to
Tenant for the purpose of inspecting the Premises, performing any services
required of Landlord, showing the Premises to prospective purchasers, lenders,
or tenants, undertaking safety measures and making
alterations, repairs, improvements or additions to the Premises or to the
Project. In the event of an emergency, Landlord may gain access to the Premises
by any reasonable means without notice, and Landlord shall not be liable to
Tenant for damage to the Premises or to Tenant's property resulting from such
access. Landlord may at any time place on or about the Building for sale or for
lease signs and Landlord may at any time during the last one hundred twenty
(120) days of the Term (or the Option terms as applicable if Tenant exercises
its Options to renew pursuant to Paragraph 8 of the Addendum) hereof place on or
about the Premises for lease signs.
31.2 Keys. Landlord shall have the right to retain keys to the Premises and
to unlock all doors at the Premises, and in the case of emergency to enter the
Premises by any reasonably appropriate means, and any such entry shall not be
deemed a forcible or unlawful entry or detainer of the Premises or an eviction.
Tenant waives any claims for damages or injuries or interference with Tenant's
property or business in connection therewith. Tenant shall provide Landlord with
one key for each lock in the Premises.
32. Security Measures. The parties hereby acknowledge that the Building shall be
equipped with a magnetic lock card key access system. Tenant hereby
acknowledges, however, that Landlord shall have no obligation whatsoever to
provide guard service or other security measures for the benefit of the Premises
or the Project, and Landlord shall have no liability to Tenant due to its
failure to provide such services. Tenant assumes all responsibility for the
protection of Tenant, its agents, employees, contractors and invitees and the
property of Tenant and of Tenant's agents, employees, contractors and invitees
from acts of third parties. Nothing herein contained shall prevent Landlord, at
Landlord's sole option, from implementing security measures for the Project or
any part thereof, in which event Tenant shall participate in such security
measures and the cost thereof shall be included within the definition of
Operating Expenses. Landlord shall have the right, but not the obligation, to
require all persons entering or leaving the Project to identify themselves to a
security guard and to reasonably establish that such person should be permitted
access to the Project. At Tenant's election and at Tenant's sole cost and
expense, Tenant shall have the right to connect any security system for the
Premises to the Building security system provided Tenant's system is compatible
and shall not interfere with the Building security system and subject to
Landlord's reasonable approval and all applicable laws, codes, regulations and
ordinances. Landlord's agreement set forth in the foregoing sentence is subject
to Tenant's agreement that Landlord shall not be liable for any costs or
maintenance of Tenant's security system or any loss or damage sustained by
Tenant or its employees, agents or contractors or any other entity claiming by
or through Tenant in connection with Tenant's use of the Building security
system and Tenant hereby agrees to indemnify Landlord against any loss or damage
arising in connection with Tenant's use of the Building security system. Tenant
shall coordinate any such installation and monitoring with the contractor
providing such services for the Building.
33. Easements. Landlord reserves to itself the right, from time to time, to
grant such easements, rights and dedications that Landlord deems necessary or
desirable, and to cause the recordation of parcel maps and restrictions, so long
as such easements, rights, dedications, maps and restrictions do not adversely
interfere with the use of the Premises by Tenant. Tenant shall sign any of the
aforementioned documents within ten (10) days after Landlord's request and
Tenant's failure to do so shall constitute a material default by Tenant. The
obstruction of Tenant's view, air, or light by any structure erected in the
vicinity of the Project, whether by Landlord or third parties, shall in no way
affect this Lease or impose any liability upon Landlord.
34. Transportation Management. Tenant shall fully comply with all present or
future programs implemented or required by any governmental or
quasi-governmental entity or Landlord to manage parking, transportation, air
pollution, or traffic in and around the Project or the metropolitan area in
which the Project is located.
35. Severability. The invalidity of any provision of this Lease as determined by
a court of competent jurisdiction shall in no way affect the validity of any
other provision hereof.
36. Time of Essence. Time is of the essence with respect to each of the
obligations to be performed by Landlord and Tenant under this Lease.
37. Definition of Additional Rent. All monetary obligations of Tenant to
Landlord under the terms of this Lease, including, but not limited to, Base
Rent, Tenant's Share of Operating Expenses, parking charges and charges for
after hours HVAC shall be deemed to be rent.
38. Incorporation of Prior Agreements. This Lease and the attachments listed in
Section 1.16 contain all agreements of the parties with respect to the lease of
the Premises and any other matter mentioned herein. No prior or contemporaneous
agreement or understanding pertaining to any such matter shall be effective.
Except as otherwise stated in this Lease, Tenant hereby acknowledges that no
real estate broker nor Landlord or any employee or agents of any of said persons
has made any oral or written warranties or representations to Tenant concerning
the condition or use by Tenant of the Premises or the Project or concerning any
other matter addressed by this Lease.
39. Amendments. This Lease may be modified in writing only, signed by the
parties in interest at the time of the modification.
40. Notices. Any notice required or permitted to be given hereunder shall be in
writing and may be given by certified mail, return receipt requested, personal
delivery, Federal Express or other delivery service. Any notice given to either
party hereunder shall be deemed given on the date the notice is actually
received or upon receipt or rejection of receipt, as the case may be. Either
party may by notice to the other specify a different address for notice
purposes. Notwithstanding the address set forth in Section 1.17 for Tenant, upon
Tenant's taking possession of the Premises, the Premises shall constitute
Tenant's address for notice purposes. A copy of all notices required or
permitted to be given to Landlord hereunder shall be concurrently transmitted to
such party or parties at such addresses as Landlord may from time to time
designate by notice to Tenant. Landlord agrees to also transmit a copy of any
notices of default given to Tenant to Tenant's attorney at the address set forth
in Section 1.17 hereinabove or such other address that Tenant may from time to
time designate by written notice to Landlord, provided, no failure on the part
of the Landlord to furnish Tenant's attorney with a copy of any such notice to
Tenant shall (i) affect the validity of any default declared against Tenant
pursuant to the terms and conditions of this Lease or extend any time periods
set forth in Section 13.1 hereinabove, or (ii) be considered a default by
Landlord of any of the conditions or agreements contained in this Lease.
41. Waivers. No waiver by Landlord of any provision hereof shall be deemed a
waiver of any other provision hereof or of any subsequent breach by Tenant of
the same or any other provision. Landlord's consent to, or approval of, any act
shall not be deemed to render unnecessary the obtaining of Landlord's consent to
or approval of any subsequent act by Tenant. No waiver by Tenant of any
provision hereof shall be deemed a waiver of any other provision hereof or any
subsequent breach by Landlord of the same or any other provision. Tenant's
consent to, or approval of any act shall not be deemed to render unnecessary the
obtaining of Tenant's consent or approval, if required, of any subsequent act by
Landlord. The acceptance of rent hereunder by Landlord shall not be a waiver of
any preceding breach by Tenant of any provision hereof, other than the failure
of Tenant to pay the
particular rent so accepted, regardless of Landlord's knowledge of such
preceding breach at the time of acceptance of such rent.
No acceptance by Landlord of partial payment of any sum due from Tenant shall be
deemed a waiver by Landlord of its right to receive the full amount due, nor
shall any endorsement or statement on any check or accompanying letter from
Tenant be deemed an accord and satisfaction. Tenant hereby waives for Tenant and
all those claiming under Tenant all rights now or hereafter existing to redeem
by order or judgment of any court or by legal process or writ, Tenant's right of
occupancy of the Premises after any termination of this Lease.
42. Covenants. This Lease shall be construed as though the covenants contained
herein are independent and not dependent and Tenant hereby waives the benefit of
any statute to the contrary.
43. Binding Effect; Choice of Law. Subject to any provision hereof restricting
assignment or subletting by Tenant, this Lease shall bind the parties, their
heirs, personal representatives, successors and assigns. This Lease shall be
governed by the laws of the state in which the Project is located and any
litigation concerning this Lease between the parties hereto shall be initiated
in the county in which the Project is located.
44. Attorneys' Fees. If Landlord or Tenant brings an action to enforce the terms
hereof or declare rights hereunder, the prevailing party in any such action, or
appeal thereon, shall be entitled to its reasonable attorneys' fees and court
costs to be paid by the losing party as fixed by the court in the same or
separate suit, and whether or not such action is pursued to decision or
judgment. The attorneys' fee award shall not be computed in accordance with any
court fee schedule, but shall be such as to fully reimburse all reasonable
attorneys' fees and court costs reasonably incurred in good faith. Landlord
shall be entitled to reasonable attorneys' fees and all other costs and expenses
incurred in the preparation and service of notices of default and consultations
in connection therewith, whether or not a legal action is subsequently commenced
in connection with such default.
45. Auctions. Tenant shall not conduct, nor permit to be conducted, either
voluntarily or involuntarily, any auction upon the Premises or the Common Areas.
The holding of any auction on the Premises or Common Areas in violation of this
Section 45 shall constitute a material default hereunder.
46. Signs. Tenant shall not place any sign upon the Premises (including on the
inside or the outside of the doors or windows of the Premises) or the Project
without Landlord's prior written consent, which may be given or withheld in
Landlord's sole discretion. Landlord shall have the right to place any sign it
deems appropriate on any portion of the Project except the interior of the
Premises.
See Addendum Paragraph 11
47. Merger. The voluntary or other surrender of this Lease by Tenant, or a
mutual cancellation thereof, or a termination by Landlord, shall not result in
the merger of Landlord's and Tenant's estates, and shall, at the option of
Landlord, terminate all or any existing subtenancies or may, at the option of
Landlord, operate as an assignment to Landlord of any or all of such
subtenancies.
48. Quiet Possession. Provided Tenant is not in default hereunder, Tenant shall
have quiet possession of the Premises for the entire term hereof subject to all
of the provisions of this Lease.
49. Authority. If Tenant is a corporation, trust, or general or limited
partnership, Tenant, and each individual executing this Lease on behalf of such
entity, represents and warrants that such individual is duly authorized to
execute and deliver this Lease on behalf of said entity, that said
entity is duly authorized to enter into this Lease, and that this Lease is
enforceable against said entity in accordance with its terms. If Tenant is a
corporation, trust or partnership, Tenant shall deliver to Landlord upon demand
evidence of such authority satisfactory to Landlord.
50. Conflict. Except as otherwise provided herein to the contrary, any conflict
between the printed provisions, Exhibits, Addenda or Riders of this Lease and
the typewritten or handwritten provisions, if any, shall be controlled by the
typewritten or handwritten provisions.
51. Multiple Parties. If more than one person or entity is named as Tenant
herein, the obligations of Tenant shall be the joint and several responsibility
of all persons or entities named herein as Tenant. Service of a notice in
accordance with Section 40 on one Tenant shall be deemed service of notice on
all Tenants.
52. Interpretation. This Lease shall be interpreted as if it was prepared by
both parties and ambiguities shall not be resolved in favor of Tenant because
all or a portion of this Lease was prepared by Landlord. The captions contained
in this Lease are for convenience only and shall not be deemed to limit or alter
the meaning of this Lease. As used in this Lease the words tenant and landlord
include the plural as well as the singular. Words used in the neuter gender
include the masculine and feminine gender. Notwithstanding anything to the
contrary contained in this Lease, if the Term of the Lease has not commenced
within twenty-one (21) years after the date of this Lease, this Lease shall
automatically terminate on the twenty-first (21st) anniversary of such date. The
sole purpose of this provision is to avoid any interpretation of this Lease as a
violation of the Rule Against Perpetuities, or any other rule of law or equity
concerning restraints on alienation.
53. Prohibition Against Recording. Neither this Lease, nor any memorandum,
affidavit or other writing with respect thereto, shall be recorded by Tenant or
by anyone acting through, under or on behalf of Tenant. Landlord shall have the
right to record a memorandum of this Lease, and Tenant shall execute,
acknowledge and deliver to Landlord for recording any memorandum prepared by
Landlord. Notwithstanding anything to the contrary contained herein, Tenant
shall have the right to record a memorandum of lease in the form attached hereto
as Exhibit I (the "Memorandum of Lease"), provided Tenant hereby agrees (i) to
pay all fees associated with the recordation and release of such Memorandum of
Lease including, but not limited to, all recordation and transfer taxes imposed,
and (ii) to deliver a Discharge of Memorandum of Lease in the form attached
hereto as Exhibit J in recordable form prior to the recordation of any
memorandum of lease which such release shall be held in escrow by Landlord (or
by Landlord's successor in interest) until such time as the Term of this Lease
expires or is earlier terminated at which time Landlord (or its successor in
interest) is authorized to date same and record same.
54. Relationship of Parties. Nothing contained in this Lease shall be deemed or
construed by the parties hereto or by any third party to create the relationship
of principal and agent, partnership, joint -venture or any association between
Landlord and Tenant.
55. Rules and Regulations. Tenant agrees to abide by and conform to the Rules
and to cause its employees, suppliers, customers and invitees to so abide and
conform. Landlord shall have the right, from time to time, to modify, amend and
enforce the Rules. Landlord shall not be responsible to Tenant for the failure
of other persons including, but not limited to, other tenants, their agents,
employees and invitees to comply with the Rules.
56. Right to Lease. Landlord reserves the absolute right to effect such other
tenancies in the Project as Landlord in its sole discretion shall determine, and
Tenant is not relying on any representation that any specific tenant or number
of tenants will occupy the Project.
57. Security Interest. In consideration of the covenants and agreements
contained herein, and as a material consideration to Landlord for entering into
this Lease, Tenant hereby unconditionally grants to Landlord a continuing
security interest in and to all money and property of any kind or description,
including, without limitation, any personal property left by Tenant at the
Premises and the security deposit, if any. The security interest granted to
Landlord hereunder secures payment and performance of all obligations of Tenant
under this Lease now or hereafter arising or existing, whether direct or
indirect, absolute or contingent, or due or to become due. In the event of a
default under this Lease which is not cured within the applicable grace period,
if any, Landlord is and shall be entitled to all the rights, powers and remedies
granted a secured party under the State of New Jersey Commercial Code and
otherwise available at law or in equity, including, but not limited to, the
right to retain as damages the personal property and security deposit held by
Landlord, without additional notice or demand regarding this security interest.
Tenant agrees that it will execute such other documents or instruments as may be
reasonably necessary to carry out and effectuate the purpose and terms of this
Section, or as otherwise reasonably requested by Landlord, including without
limitation, execution of a UCC-1 financing statement. Landlord's rights under
this Section are in addition to Landlord's rights under Sections 5 and 13.
Notwithstanding anything to the contrary contained in Section 57 of this Lease,
the security interest granted by Tenant to Landlord shall be automatically
subordinated to the security interest, if any, granted to Tenant's lenders in
the ordinary course of Tenant's business. At Tenant's request, Landlord shall
execute a lien waiver, the form of which shall be reasonably satisfactory to
Landlord, waiving Landlord's security interest in the collateral described in
any such lien waiver (which collateral shall exclude any tenant improvements and
any fixtures installed in the Premises).
58. Security for Performance of Tenant's Obligations. [Intentionally omitted].
59. Financial Statements. From time to time but not more than twice in any
twelve (12) month period, at Landlord's request, Tenant shall cause the
following financial information to be delivered to Landlord, at Tenant's sole
cost and expense, upon not less than ten (10) days' advance written notice from
Landlord: (a) a current financial statement for Tenant and Tenant's financial
statements for the previous two accounting years, (b) a current financial
statement for any guarantor(s) of this Lease and the guarantor's financial
statements for the previous two accounting years and (c) such other financial
information pertaining to Tenant or any guarantor as Landlord or any lender or
purchaser of Landlord may reasonably request. All financial statements shall be
prepared in accordance with generally accepted accounting principals
consistently applied and, if such is the normal practice of Tenant, shall be
audited by an independent certified public accountant. Notwithstanding anything
to the contrary contained herein, so long as Tenant is a publicly traded
company, Tenant need only to submit its annual report upon request by Landlord
to comply with the provisions of this Section 59.
60. Attachments. The items listed in Section 1.16 are a part of this Lease and
are incorporated herein by this reference.
See Addendum Paragraphs 12 through 17
61. WAIVER OF JURY TRIAL. LANDLORD AND TENANT HEREBY WAIVE THEIR RESPECTIVE
RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM,
COUNTERCLAIM OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING AND/OR HEARING BROUGHT
BY EITHER LANDLORD AGAINST TENANT OR TENANT AGAINST LANDLORD ON ANY MATTER
WHATSOEVER ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES,
OR ANY CLAIM OF INJURY OR DAMAGE, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY
LAW, STATUTE, OR REGULATION, EMERGENCY OR OTHERWISE, NOW OR HEREAFTER IN EFFECT.
LANDLORD AND TENANT ACKNOWLEDGE THAT THEY HAVE CAREFULLY READ AND REVIEWED THIS
LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN AND, BY EXECUTION OF THIS
LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY
AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE
COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND
TENANT WITH RESPECT TO THE PREMISES. TENANT ACKNOWLEDGES THAT IT HAS BEEN GIVEN
THE OPPORTUNITY TO HAVE THIS LEASE REVIEWED BY ITS LEGAL COUNSEL PRIOR TO ITS
EXECUTION. PREPARATION OF THIS LEASE BY LANDLORD OR LANDLORD'S AGENT AND
SUBMISSION OF SAME TO TENANT SHALL NOT BE DEEMED AN OFFER BY LANDLORD TO LEASE
THE PREMISES TO TENANT OR THE GRANT OF AN OPTION TO TENANT TO LEASE THE
PREMISES. THIS LEASE SHALL BECOME BINDING UPON LANDLORD AND TENANT ONLY WHEN
FULLY EXECUTED BY BOTH PARTIES AND WHEN LANDLORD HAS DELIVERED A FULLY EXECUTED
ORIGINAL OF THIS LEASE TO TENANT.
[Signatures on following page]
LANDLORD TENANT
VRS SADDLE RIVER LLC, PDI, INC.,
a Virginia limited liability company a Delaware corporation
By: VRS/TA Associates LLC, a Virginia
limited liability company,
sole member
By: TA Rich LLC, a Massachusetts By:
limited liability company, ------------------------------------
Manager
------------------------------------
(print name)
By: Realty Associates
Advisors Trust, a Its:
Massachusetts business -----------------------------------
trust, sole Member (print title)
By:
---------------------
(Officer)
Date: Date:
------------------------------- ----------------------------------
DATE OF EXECUTION DATE OF EXECUTION
VRS/TA ASSOCIATES, by its signature
below, joins herein not as a party,
but for the sole purpose of the
statement contained in Paragraph 7c
of the Addendum
VRS/TA ASSOCIATES LLC,
A Virginia limited liability company
By: TA Rich LLC, a Massachusetts
limited liability company,
Manager
By: Realty Associates
Advisors Trust, a
Massachusetts business
trust, sole Member
By:
---------------------
(Officer)
Date:
-------------------------------
DATE OF EXECUTION
ADDENDUM
THIS ADDENDUM (the "Addendum") is attached to the Lease dated as of
November 20, 2003, by and between VRS SADDLE RIVER LLC, a Virginia limited
liability company ("Landlord") and PDI, INC., a Delaware corporation ("Tenant")
and incorporated herein by reference thereto. To the extent that there are any
conflicts between the provisions of the Lease and the provisions of this
Addendum, the provisions of this Addendum shall supersede the conflicting
provisions of the Lease.
1. Rent Abatement. Landlord hereby agrees to conditionally waive (i) the
Base Rent due from the Commencement Date through and including December 31,
2004, and (ii) one-half (1/2) of the Base Rent due for each of the months of
January through March, 2005. No other amounts due to Landlord under this Lease
other than the Base Rent shall be abated, except as expressly provided herein.
In the event Tenant defaults hereunder and fails to cure such default within any
applicable notice or cure period, Tenant shall not be entitled to any further
abatement of Base Rent. Nothing contained in this Paragraph shall be construed
to relieve Tenant of (i) the obligation set forth in Section 4.1 of the Lease to
deposit with Landlord the Base Rent due for the months of January, 2005 and
February, 2005 on the earlier to occur of (a) the Commencement Date, and (b) May
1, 2004, or (ii) the obligation to pay all Electric Energy Charges incurred by
Tenant.
2. Operating Expense Increases. Notwithstanding anything to the contrary
contained in the definitions of Operating Expenses set forth in Section 5.1(d)
of the Lease, Operating Expenses shall not include the following:
(a) costs associated with leasing space in the Building, including,
without limitation, advertising and marketing, commissions or any amounts
paid for or on behalf of tenants such as space planning, moving costs,
rental and other tenant concessions;
(b) costs of electricity sold to tenants of the Building by Landlord
or any other special service or benefit to the tenants or service or
benefit in excess of that furnished to Tenant whether or not Landlord
receives reimbursement from such tenants as an additional charge;
(c) any amounts which would otherwise be included in Operating
Expenses paid to any person, firm or corporation related or otherwise
affiliated with Landlord or any general partner, officer or director of
Landlord or any of its general partners, to the extent same exceeds
arms-length competitive prices paid in the Saddle River, New Jersey area
for the services or goods provided (i.e., that portion of the costs and
expenses for such services that exceed the competitive rate shall not be
included in Operating Expenses);
(d) costs of renovating or otherwise improving space for new tenants
or in renovating space vacated by any tenant;
(e) Landlord's general corporate overhead and general and
administrative expenses except as it relates specifically to the actual
management of the Project;
(f) any depreciation, interest and principal payments due under any
security interest encumbering the Project;
(g) legal expenses and professional fees incurred in connection with
leasing space in the Project or disputes with tenants, other occupants or
prospective tenants, lenders, ground lessors, employees or agents of
Landlord;
(h) costs incurred by Landlord for capital improvements, except for
the cost incurred for such capital improvements made: (a) to conform with
laws (which are amended, become effective, or are interpreted or enforced
differently after the date of this Lease); (b) to provide or maintain
Building standards (other than Building standard tenant improvements); or
(c) with the intention of promoting safety or reducing or controlling
increases in Operating Expenses, such as lighting retrofit and installation
of energy management systems (but only to the extent any such capital
improvement (i) actually reduces Operating Expenses, or (ii) does not
exceed what Tenant would have paid prior to such capital improvement);
(i) salaries, wages and benefits of any employee above the level of
property manager; or any salary, wages, or other compensation or benefits
for off-site employees applicable to the time spent working at other
buildings, other than the Building manager (provided that with respect to
each employee that services the Building and other buildings, a pro rata
portion of such employee's salary shall be included in Operating Expenses);
(j) ground rent;
(k) costs incurred to correct violations by Landlord of any law, rule,
order or regulation which was in effect as of the date hereof;
(l) costs relating to maintaining Landlord's existence, either as a
corporation, partnership, trust or other entity, such as trustee's fees,
annual fees, partnership organization or administration expenses, deed
recordation expenses, legal and accounting fees (other than with respect to
Building operations);
(m) any expense for which Landlord is reimbursed or entitled to be
reimbursed from any tenant, or under the terms of any insurance policy,
warranty, or condemnation award;
Add-1
(n) depreciation and amortization of the Building or any equipment,
machinery, fixtures or improvements therein except for amortization of
capital improvements specifically permitted in the Lease;
(o) bad debt or rent loss or reserves for bad debts or rent loss;
(p) costs incurred in connection with the sale, selling or change of
ownership of the Building, including brokerage commissions, attorneys' and
accountants' fees, closing costs, title insurance premiums, transfer taxes
and interest charges;
(q) fines, penalties or interest for Landlord's failure to make any
tax payment in a timely fashion;
(r) any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord or any affiliate of Landlord;
(s) costs of acquisition of sculpture, paintings, or other objects of
art;
(t) costs of repairs, restoration, replacements or other work
occasioned by fire, windstorm or other casualty required to be insured by
Landlord under this Lease;
(u) Landlord's net income, transfer, excise, capital stock, estate,
succession and franchise taxes;
(v) costs directly resulting from the gross negligence or willful
misconduct of Landlord or its agents, contractors or employees;
(w) costs of rentals and other related expenses, if any, incurred in
leasing capital items to the extent that such expense exceeds the
amortization of the same items under this Lease if purchased (i.e., that
portion of the costs and expenses that exceed the amortization of the same
items under this Lease shall not be included in Operating Expenses);
(x) costs of services provided and costs incurred in connection with
any specialty operations in the Building including any retail health club
or restaurant in the Building, if any; and
(y) costs incurred to contain, abate, remove or otherwise clean up the
Building or the Land required as a result of the presence of Hazardous
Materials in, about or below the Building or the Land.
3. Security Deposit. Section 6 of the Lease is hereby amended by adding the
following at the end of Section 6:
a. The security deposit shall be in the form of an irrevocable letter
of credit (the "Security Deposit L/C") in the amount set forth in Section
1.10 as security for Tenant's full and faithful performance of Tenant's
obligations hereunder. The Security Deposit L/C shall be delivered to
Landlord at Tenant's sole cost and expense. The Security Deposit L/C shall
be issued by and drawn on Commerce Bank or any other bank reasonably
acceptable to Landlord, in Landlord's sole discretion, and shall name
Landlord as Beneficiary. The Security Deposit L/C shall be substantially in
the form attached hereto as Exhibit H. If the maturity date of the Security
Deposit L/C is prior to the end of the Term of the Lease, Tenant shall
renew the Security Deposit L/C as often as is necessary with the same bank
or financial institution (or a similar bank or financial institution
reasonably acceptable to Landlord) and upon the same terms and conditions,
not less than thirty (30) days prior to the purported expiration date of
the Security Deposit L/C. In the event that Tenant fails to timely renew
the Security Deposit L/C as aforesaid, Landlord shall be entitled to draw
against the entire amount of the Security Deposit L/C. The Security Deposit
L/C shall be assignable by Landlord and upon such assignment to any party
assuming in writing the lessor interest in this Lease, Landlord shall be
relieved from all liability to Tenant therefor.
b. Upon the occurrence of any default by Tenant in the payment of Base
Rent or upon the occurrence of the events described in Section 13.1 of the
Lease or in the event that Landlord terminates this Lease in accordance
with the terms hereof following a default by Tenant after the expiration of
any applicable notice and cure period, Landlord shall have the right to
draw the entire amount of the Security Deposit L/C. Landlord agrees to copy
Tenant on any notice to the issuing bank requesting a draw against the
Security Deposit L/C. In the event that Tenant defaults after the
expiration of any applicable notice and cure period in making any money
payment required to be made by Tenant under the terms of this Lease other
than the payment of Base Rent, then Landlord shall be entitled to draw upon
so much of the Security Deposit L/C as equals the defaulted payment(s),
plus any interest or other charges due thereon in accordance with this
Lease. If Landlord elects to make a partial draw upon the Security Deposit
L/C, Tenant shall promptly restore the Security Deposit L/C to its original
amount within ten (10) days after written demand therefor. Landlord's
election to make a partial draw upon the Security Deposit L/C shall in no
event prejudice or waive Landlord's right to terminate this Lease if
permitted under applicable provisions of this Lease, nor shall such
election prejudice or waive any other remedy of Landlord reserved under the
terms of this Lease, including the right to draw the entire amount of the
Security Deposit L/C, if applicable. The Security Deposit L/C shall be
available for payment against the presentation of a sight draft by the
Landlord (with simultaneous notice to Tenant) together with a certificate
from Landlord that Tenant is in default of its obligations hereunder beyond
expiration of any applicable notice and cure periods and that Landlord is
entitled, by the terms of this Lease, to draw upon the Security Deposit
L/C. The proceeds of the Security Deposit L/C, if drawn by Landlord
pursuant to the terms hereof, shall be held by Landlord and applied to
reduce any amount owed by Tenant to Landlord. Interest shall be payable on
any proceeds held on account at the interest rate being paid by a standard
commercial depository account.
c. In the event that (i) Landlord draws the full amount of the
Security Deposit L/C as a result of a default by Tenant, (ii) this Lease is
not terminated by Landlord as a result of such default, (iii) such default
is fully cured by Tenant, and (iv) there is no outstanding uncured default
by Tenant, then the balance of the sums drawn
Add-2
(after the payment of any sums related to the curing of any defaults) shall
be applied first to obtain a replacement letter of credit as security for
Tenant's performance hereunder, and the remaining balance, if any, will be
refunded to Tenant. Upon the termination of this Lease and the payment in
full to Landlord of all damages, costs and expenses to which Landlord is
entitled, the balance of any funds drawn from the Security Deposit L/C
after satisfying such obligations in full shall be refunded to Tenant.
d. To the extent that the Security Deposit L/C is either lost or the
issuing bank will not honor the Security Deposit L/C, Tenant personally
guarantees the proceeds of the Security Deposit L/C and will immediately
remit to Landlord the amount of the Security Deposit in cash to be held in
accordance with this Section 6 of the Lease.
e. Notwithstanding anything to the contrary contained in Section 6 of
the Lease, provided Tenant has not been in default under the Lease beyond
the expiration of any applicable notice and cure periods at any time during
the Term of the Lease, Landlord shall permit the Security Deposit L/C to be
amended (at Tenant's sole cost and expense) to reduce the face amount of
the Security Deposit L/C according to the following schedule:
- --------------------------------------------------------------------------------
Date of Reduction New Security Deposit L/C Amount
- --------------------------------------------------------------------------------
February 1, 2006 $1,825,000.00
- --------------------------------------------------------------------------------
February 1, 2007 $1,650,000.00
- --------------------------------------------------------------------------------
February 1, 2008 $1,475,000.00
- --------------------------------------------------------------------------------
February 1, 2009 $1,300,000.00
- --------------------------------------------------------------------------------
February 1, 2010 $1,125,000.00
- --------------------------------------------------------------------------------
February 1, 2011 $950,000.00
- --------------------------------------------------------------------------------
February 1, 2012 $775,000.00
- --------------------------------------------------------------------------------
February 1, 2013 $600,000.00
- --------------------------------------------------------------------------------
In no event shall a reduction to the amount of the Security Deposit L/C be
deemed to have occurred absent an amendment to the Security Deposit L/C in
writing by the issuing bank. It shall be Tenant's sole obligation to obtain such
written amendment from the issuing bank. The remaining Six Hundred Thousand and
00/100 Dollars ($600,000.00) shall be held as the Security Deposit during the
initial Term of the Lease. Tenant shall be required to maintain an amount equal
to one (1) month of the then-escalated Base Rent at the commencement of the
Option term as a Security Deposit during the Option Terms set forth in Paragraph
8 below. Tenant shall have the option at any time after February 1, 2010, as
long as Tenant is not in default under the Lease and has not been in default
under the Lease for the prior twenty-four (24) months of the Term of the Lease,
to convert the Security Deposit to cash. If Tenant elects to convert the
Security Deposit to cash, such Security Deposit shall still be subject to
reduction in accordance with the above-referenced terms and conditions. If
Tenant is in default beyond the expiration of any applicable notice and cure
period prescribed under the Lease at any time during the Term of this Lease,
then Tenant's right thereafter to reduce the amount of the Security Deposit L/C
(or the cash Security Deposit) pursuant to this subparagraph (e) shall no longer
apply and shall become null and void and of no further force and effect."
4. Alterations. Notwithstanding anything to the contrary in the Lease,
Tenant shall have the right to make non-structural Alterations to the Premises
without obtaining Landlord's prior written consent, provided that (i) such
Alterations do not exceed Fifty Thousand and No/100 Dollars ($50,000.00) in cost
in any one instance; (ii) Tenant provides Landlord with prior written notice of
its intention to make such Alterations together with the plans and
specifications for the same; (iii) except in the event of an emergency, Tenant
provides Landlord a reasonable period of time to review Tenant's plan of
Alteration; (iv) any such Alteration to the Premises does not affect the
structural integrity of the Building or adversely effect any of the Building
systems; (v) such Alterations are not visible from the Common Areas; (vi) such
Alterations do not adversely affect the proper functioning of any of the base
Building systems; (vii) such Alterations will not result in Tenant drawing
services from the base Building systems at greater levels than the levels
permitted under the Lease; (viii) Tenant adheres to all applicable government
regulations, including the Americans with Disabilities Act ("ADA"), and obtains
any necessary permits in making such Alterations; and (ix) all work is performed
in a good and workmanlike manner. To the extent that Landlord's consent is
required pursuant to the Lease, Landlord agrees to notify Tenant concurrently
with Landlord's consent of any such Alterations whether Landlord will require
Tenant to remove such Alterations at the end of the Lease Term. For purposes of
the Lease, it shall be deemed reasonable for Landlord to require Tenant to
perform Alterations during non-business hours if such Alterations will create
unreasonable noise, noxious fumes or otherwise interfere with the quiet
enjoyment of the other tenants of the Building.
5. Assignment and Subletting. Notwithstanding anything to the contrary
contained in Section 12 of the Lease, provided Tenant is not in default after
expiration of all applicable notice and cure periods, Tenant shall have the
right, without Landlord's consent, upon thirty (30) days advance written notice
to Landlord, to assign the Lease or sublet the whole or any part of the Premises
(a) to any entity or entities which are owned by Tenant, or which owns Tenant,
(b) in connection with the sale or transfer of substantially all of the assets
of the Tenant or the sale or transfer of substantially all of the outstanding
ownership interests in Tenant, or (c) in connection with a merger, consolidation
or other corporate reorganization of Tenant (each of the transactions referenced
in the above subparagraphs (a), (b), and (c) are hereinafter referred to as a
"Permitted Transfer," and each surviving entity shall hereinafter be referred to
as a "Permitted Transferee"); provided, that such assignment or sublease is
subject to the following conditions:
(i) Tenant shall remain fully liable under the terms of the Lease;
(ii) such Permitted Transfer shall be subject to all of the terms,
covenants and conditions of the Lease;
Add-3
(iii) such Permitted Transferee has sufficient assets to meet Tenant's
then remaining obligations under this Lease from and after the date of such
Permitted Transfer; and
(iv) such Permitted Transferee shall expressly assume the obligations
of Tenant under the Lease from and after the date of such Permitted
Transfer by a document reasonably satisfactory to Landlord.
6. Parking. Tenant shall be entitled to use Tenant's prorata share of
unassigned parking around the Building and reserved/covered spaces within the
Building. A parking plan showing the location of the reserved/covered spaces is
attached hereto as Exhibit A-2.
7. Tenant Improvements.
a. On or before the Possession Date, Landlord shall, at Landlord's
sole cost and expense, complete the items set forth on Schedule 1-A
attached hereto ("Landlord's Work"). With respect to item 5 on Schedule
1-A, Tenant shall be responsible for coordinating the installation of the
fiber with Verizon. Landlord shall reimburse Tenant for the cost charged by
Verizon in connection with such installation, such reimbursement to be made
within thirty (30) days of receipt of an invoice from Verizon detailing the
work done. Landlord shall use commercially reasonable efforts to
substantially complete Landlord's Work on or before the date set forth in
Section 1.7 ("Landlord's Work Completion Date"). If Landlord fails to
deliver the Premises to Tenant with Landlord's Work substantially completed
on or before Landlord's Work Completion Date, then, provided Tenant has
obtained a building permit to begin construction of the Improvements,
Tenant shall be entitled to one (1) day of Base Rent abatement (from and
after December 31, 2004) for each day after Landlord's Work Completion
Date, until such time as Landlord delivers the Premises to Tenant with
Landlord's Work substantially completed.
b. Tenant shall construct improvements ("Improvements") for the
Premises in accordance with the Work Letter Agreement attached hereto as
Schedule 1-B (the "Work Letter Agreement"). In connection thereto, Landlord
hereby grants to Tenant an "Improvement Allowance" of Fifty-Two and 75/100
Dollars ($52.75) per square foot of space in the Premises (i.e., 84,122
square feet multiplied by $52.75 = $4,437,435.50) (the "Improvement
Allowance"), which Improvement Allowance shall be used only for the items
specified in the Cost Breakdown, as that term is defined in the Work Letter
Agreement.
c. VRS/TA Associates LLC by its signature to this Lease hereby agrees
to guaranty payment of the Improvement Allowance when, if and as it becomes
due in accordance with the terms of the Lease, including the Work Letter
Agreement.
d. The Improvement Allowance is for the construction on behalf of
Landlord, of the Improvements, which Improvements are being made for the
purpose of constructing/improving the Premises for use in Tenant's
business. Except as specifically provided in this Paragraph, upon
completion, the Improvements, together with any replacements thereof, shall
become the property of Landlord subject to use of same by Tenant during the
Term of this Lease, in accordance with the terms and conditions of this
Lease. Except as specifically provided in this Paragraph, Landlord alone
shall be entitled to depreciate the Improvements as an asset for tax
purposes, and Tenant shall not recognize income with respect to the
Improvement Allowance. Tenant shall be responsible for, and agrees to pay,
all costs of the Improvements in excess of the Improvement Allowance. The
improvements represented by such excess costs paid by Tenant, together with
any replacements thereof, shall be and remain the property of Tenant
throughout the Term; and Tenant alone shall be entitled to the benefits of
ownership thereof, including without limitation, depreciation of same as an
asset for tax purposes.
8. Option to Renew.
a. Subject to the provisions of Section 26 of the Lease, and provided
that Tenant is not in default beyond any applicable cure period at the time
of Tenant's exercise of the Option or, provided Tenant is not in default
under Section 13.1(a) of the Lease beyond any applicable cure period at the
commencement of the Option term, Tenant shall have two (2) five (5) year
options to renew this Lease. Tenant shall provide to Landlord on a date
which is prior to the date that each Option period would commence (if
exercised) by at least two hundred seventy (270) days and not more than
three hundred sixty (360) days, a written notice of the exercise of the
Option to extend the Lease for the additional option term, time being of
the essence. Such notice shall be given in accordance with Section 40 of
the Lease. If notification of the exercise of either Option is not so given
and received, all options granted hereunder shall automatically expire.
Base Rent applicable to the Premises for each Option Term shall be equal to
the Fair Market Rental, as determined in accordance with subparagraph (c)
below. All other terms and conditions of the Lease shall remain the same.
b. If the Tenant exercises the Option, the Landlord shall determine
the Fair Market Rental by using its good faith judgment. Landlord shall
provide Tenant with written notice of such amount within fifteen (15) days
after Tenant exercises its Option. Tenant shall have fifteen (15) days
("Tenant's Review Period") after receipt of Landlord's notice of the new
base rent within which to accept such rental. In the event Tenant fails to
accept in writing such rental proposal by Landlord, then such proposal
shall be deemed rejected and Landlord and Tenant shall attempt to agree
upon such Fair Market Rental, using their best good faith efforts. If
Landlord and Tenant fail to reach agreement within fifteen (15) days
following Tenant's Review Period ("Outside Agreement Date") then the
parties shall each within ten (10) days following the Outside Agreement
Date appoint a real estate broker who shall be licensed in the State of New
Jersey and who specializes in the field of commercial office space leasing
in the Saddle River, New Jersey market, has at least ten (10) years of
experience and is recognized within the field as being reputable and
ethical. If one party does not timely appoint a broker, then the broker
appointed by the other party shall promptly appoint a broker for such
party. Such two individuals shall each determine within ten (10) days after
their appointment such base rent. If such individuals do not agree on Fair
Market Rental, then the two individuals shall, within five (5) days, render
separate written reports of their determinations and together appoint a
third similarly qualified individual having the qualifications described
above. If the two brokers are unable to agree upon a third broker, the
third broker shall be appointed by the President of the Bergen County Board
of Realtors. In the event the
Add-4
Bergen County Board of Realtors is no longer in existence, the third broker
shall be appointed by the President of its successor organization. If no
successor organization is in existence, the third broker shall be appointed
by the Chief Judge of the Circuit Court of Bergen County, New Jersey. The
third individual shall within ten (10) days after his or her appointment
make a determination of such Fair Market Rental. The third individual shall
determine which of the determinations of the first two individuals is
closest to his own and the determination that is closest shall be final and
binding upon the parties, and such determination may be enforced in any
court of competent jurisdiction. Landlord and Tenant shall each bear the
cost of its broker and shall share equally the cost of the third broker.
Upon determination of the base rent payable pursuant to this Section, the
parties shall promptly execute an amendment to this Lease stating the rent
so determined.
c. The term "Fair Market Rental" shall mean the annual amount per
rentable square foot that a willing, comparable renewal tenant would pay
and a willing, comparable landlord of a similar office building in the same
geographic area would accept at arm's length for similar space, giving
appropriate consideration to all relevant factors, including without
limitation, the following matters: (i) annual rental rates per rentable
square foot; (ii) the type of escalation clauses (including, without
limitation, operating expenses, real estate taxes, and CPI) and the extent
of liability under the escalation clauses (i.e., whether determined on a
"net lease" basis or by increases over a particular base year or base
dollar amount); (iii) rent abatement provisions reflecting free rent and/or
no rent during the lease term; (iv) length of lease term; (v) size and
location of premises being leased; and (vi) other generally applicable
terms and conditions of tenancy for similar space. The Fair Market Rental
may also designate periodic rental increases, a new Base Year and similar
economic adjustments. The Fair Market Rental shall be the Fair Market
Rental in effect as of the beginning of the Option period, even though the
determination may be made in advance of that date, and the parties may use
recent trends in rental rates in determining the proper Fair Market Rental
as of the beginning of the Option period.
9. Right of First Offer. Subject to the provisions of Section 26 of the
Lease and provided Tenant is not in default under the Lease beyond any
applicable cure period at the time of Tenant's exercise of the Option or
provided Tenant is not in default under Section 13.1(a) of the Lease, beyond any
applicable cure period at the commencement of the Option term and subject to all
other options held by tenants of the Building as of the date of this Lease, then
at any time after the initial leasing of the Option Space, Tenant shall have the
right of first offer with respect to any space that becomes available in the
Building (the "Option Space"). Prior to leasing any of the Option Space,
Landlord shall give Tenant written notice of its intent to lease the Option
Space and the material terms and conditions under which Landlord would agree to
lease the Option Space, including, without limitation, rent, escalations, term,
tenant allowance, concessions and security, if applicable. Tenant may exercise
such right only as to all of the Option Space described in the Landlord's notice
and on all of the terms set forth in Landlord's notice, and not to merely a part
of such Option Space or some of such terms. Tenant shall have fifteen (15) days
in which to provide Landlord with written notice of its election to exercise
such right and ten (10) business days thereafter to execute an amendment
incorporating the terms set forth in Landlord's notice and such other terms as
are acceptable to Landlord. Such notice shall be given in accordance with
Section 40 of the Lease. If Tenant does not give Landlord written notice of its
election to lease such Option Space on such terms within the fifteen (15) day
period or if Tenant fails to execute an amendment in form and substance
acceptable to Landlord within the ten (10) business day period described above,
Landlord shall thereafter be free to lease such Option Space to a third party on
substantially the same economic terms (e.g., rent, tenant improvements) that
Landlord offered to Tenant, with no further obligation to Tenant. If Landlord
offers the Option Space to a third party on economic terms that are not
substantially similar to those offered to Tenant, then Landlord shall again be
obligated to offer the Option Space to Tenant in accordance with the provisions
of this Paragraph 9. In the event that Landlord offers any space to Tenant
pursuant to this right of first offer, and Tenant elects not to lease the space,
the space so offered shall no longer be subject to this right of first offer,
and thereafter Landlord shall not be obligated to offer said space to Tenant
until such time as the Option Space again becomes available for leasing
following the expiration of a lease for such Option Space to a third party
tenant.
10. Right of First Refusal. Subject to the provisions of Section 26 of the
Lease and provided Tenant is not in default under the Lease beyond any
applicable cure period at the time Tenant exercises the Option or provided
Tenant is not in default under Section 13.1(a) of the Lease, beyond any
applicable cure period at the commencement of the Option term and subject to all
other options held by tenants of the Building as of the date of this Lease,
Tenant shall have the right of first refusal to lease certain space on the
second (2nd) floor of the Building containing approximately Four Thousand Six
Hundred Eighty (4,680) rentable square feet and shown on Exhibit A-1 attached
hereto and made a part hereof (the "Right of First Refusal Space"). Prior to
entering into a lease of any of the Right of First Refusal Space, Landlord shall
give Tenant written notice of all the terms and conditions of a bona fide
third-party offer ("Offered Terms") Landlord has received for the Right of First
Refusal Space. Tenant may exercise such right only as to all of the Right of
First Refusal Space and all of the Offered Terms described in the Landlord's
notice, and not to merely a part of such Right of First Refusal Space or such
Offered Terms. Tenant shall have fifteen (15) days in which to provide Landlord
with written notice of its election to exercise this Right of First Refusal and
ten (10) business days thereafter to execute an amendment incorporating the
Offered Terms. If Tenant does not give Landlord written notice of its election
to lease such Right of First Refusal Space on such terms within the fifteen (15)
day period or if Tenant fails to execute an amendment in form and substance
acceptable to Landlord within the ten (10) business day period described above,
Landlord shall thereafter be free to lease such Right of First Refusal Space to
any third-party on economic terms and conditions which are substantially similar
to the Offered Terms, with no further obligation to Tenant. If Landlord offers
the Right of First Refusal Space to a third party on economic terms that are not
substantially similar to the Offered Terms, then Landlord shall again be
obligated to offer the Right of First Refusal Space to Tenant in accordance with
the provisions of this Paragraph 10. In the event that Landlord offers any space
to Tenant pursuant to this right of first refusal, and Tenant elects not to
lease the space, the space so offered shall no longer be subject to this right
of first refusal, and thereafter Landlord shall not be obligated to offer said
space to Tenant. Landlord agrees to notify Tenant if Landlord has entered into
such lease of the Right of First Refusal Space (or not entered into, as the case
may be).
11. Signage.
a. Section 46 of the Lease is hereby modified by adding the following
to the end of Section 46: "Landlord will provide, at Landlord's sole cost
and expense, Building directory signage on the main floor and on
Add-5
Tenant's floor of the Building. Tenant shall have the right to install
suite entry signage with Tenant's logo on the entrance door of the
Premises. The design, size, location and materials of such signage shall be
in accordance with Landlord's standard Building signage package. The cost
of any changes in the Building standard graphics on the door to the
Premises or the Building directory following their initial installation are
subject to Landlord's approval and shall be paid by Tenant, at Tenant's
sole cost and expense."
b. In addition, Landlord shall, at Tenant's sole cost and expense,
provide Tenant with signage with Tenant's logo on a monument sign
("Monument Sign") at the entrance to the Building, subject to all
applicable codes and regulations and Landlord's signage and design
criteria, and otherwise subject to Landlord's prior approval, including,
but not limited to, Landlord's approval of the size, location and
installation. The foregoing notwithstanding, Landlord shall be responsible,
at Landlord's sole cost and expense, to construct and install the Monument
Sign. Landlord shall have the right to choose the language with regard to
Building identification information to be placed on the Monument Sign, as
well as the right to place other tenants' names on the Monument Sign;
provided, however, that as long as: (i) Tenant is the single largest Tenant
in the Building; (ii) Tenant is in occupancy of at least fifty thousand
(50,000) square feet of the Premises; and (iii) Tenant has not been in
monetary default under the Lease beyond the expiration of any applicable
notice and cure period at any time during the Term of the Lease (the
"Conditions Precedent"), Tenant's name will be listed above all other
tenants. In addition, as long as Tenant is leasing more than Fifty Thousand
(50,000) square feet and the Conditions Precedent have been met, Tenant
shall be the only Tenant listed on the Monument Sign.
c. Anytime after the Commencement Date, or earlier at Landlord's
option, and provided the Conditions Precedent have been met, Tenant shall
have the right (unless Landlord elects to do so, at Landlord's election) to
obtain all necessary approvals to place a monument sign with mutually
agreed to Building identification language and the Tenant's name, in a
location that has visibility from Route 17, which such location shall be
mutually agreed upon by Landlord and Tenant (the "Exclusive Route 17
Monument Sign"). All costs for obtaining the approvals, as well as the cost
of installation of the Exclusive Route 17 Monument Sign, shall be paid by
Tenant. All costs of maintaining the Exclusive Route 17 Monument Sign shall
be included in Operating Expenses, reimbursable by Tenant in accordance
with the provisions of Section 5.1 hereinabove. Tenant shall have the final
decision whether or not it will pay for the Exclusive Route 17 Monument
Sign. If Tenant chooses not to pay for the Exclusive Route 17 Monument
Sign, Tenant forfeits its rights to the Exclusive Route 17 Monument Sign.
d. If Tenant is permitted to have the exclusive rights to the Monument
Sign, or to have Tenant's name listed above all other tenants names, and/or
to have the Exclusive Route 17 Monument Sign pursuant to this Paragraph 11
and thereafter fails to meet the Conditions Precedent set forth
hereinabove, Landlord shall have the right to require Tenant to remove
Tenant's name from such signage at Tenant's sole cost and expense and all
of Landlord's restrictions with respect to any such signage shall be null
and void.
e. The signage rights granted to Tenant in this Section 11 are
personal to the original Tenant and any Permitted Transferee and may not be
assigned by or to any person or entity other than Tenant or a Permitted
Transferee.
12. Roof-top Access. Landlord hereby agrees that Tenant shall have, subject
to the rights of other roof-top users in the Building at the time Tenant
exercises a license agreement for such use, non-exclusive access to and use of a
portion of the Building roof for Tenant to install, maintain and operate up to
five (5) satellite dishes or antennae (including appropriate conduit and
utilities for the operation thereof), the location of which shall be reasonably
agreed upon by Landlord and Tenant, such use by Tenant to be free of charge
during the initial Term hereof and any renewal terms pursuant to Paragraph 8 of
this Addendum. In the event Tenant wishes to place communication equipment on
the roof, it shall be (i) screened in a manner and design acceptable to Landlord
in its sole but reasonable discretion, (ii) installed and maintained in
compliance in all aspects with all applicable codes, and (iii) at Tenant's sole
cost and expense. Prior to installing any such equipment on the roof of the
Building, Tenant shall execute a license agreement substantially in the form
attached to this Lease as Exhibit G.
13. Storage Space.
(a) In addition to the Premises defined in Section 1.2 above, Landlord
desires to lease to Tenant and Tenant desires to lease from Landlord
additional space comprising approximately Five Hundred Fifty-Nine (559)
rentable square feet of below grade space in the Building as shown on
Exhibit A-3 attached hereto (hereinafter referred to as the "Storage
Space"), on the all of the terms and conditions of the Lease applicable to
the Premises except as specifically set forth in this Paragraph 13.
(b) Tenant shall pay to Landlord Ten and No/100 Dollars ($10.00) per
rentable square foot of space in the Storage Space with respect to the
Storage Space throughout the Term of the Lease. Such monthly installments
of storage rent shall hereinafter be referred to as "Monthly Storage Space
Rent". The Monthly Storage Space Rent will constitute Additional Rent (as
defined in the Lease) and shall be due and payable, without deduction or
set off, on the first (1st) day of each calendar month during the Term of
the Lease commencing January 1, 2005. Tenant's obligation to pay Monthly
Storage Space Rent hereunder shall be abated from the period commencing on
the Commencement Date and continuing until December 31, 2004. No other
amounts other than Monthly Storage Space Rent shall be abated except as
expressly provided elsewhere in the Lease. If Tenant defaults under the
Lease after the expiration of any applicable notice and cure period prior
to January 1, 2005, then Tenant shall no longer be entitled to any further
abatement of Monthly Storage Space Rent. Monthly Storage Space Rent for any
period during the term hereof which is for less than one (1) month shall be
prorated based upon the actual number of days of the calendar month
involved.
(c) Notwithstanding anything to the contrary contained in the Lease or
herein, (i) the Base Rent payable with respect to the Premises set forth in
Section 1.8 of the Lease shall not be applicable to the Storage Space; (ii)
Monthly Storage Space Rent payable with respect to the Storage Space shall
not be subject to annual escalations; (iii) neither Operating Expense
increases as set forth in Section 5 of the Lease nor the Electric Energy
Charge as set forth in Section 11.6 of the Lease shall be payable with
respect to the Storage Space.
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(d) Tenant shall use the Premises solely for storage of office
supplies, files, UPS battery packs and product samples and for no other
purposes whatsoever.
(e) All property placed in the Storage Space by Tenant, its agents, or
any other persons, shall be and remain at the sole risk of Tenant, its
agents or other persons. Landlord shall not be liable for any damage to, or
theft or loss of, such property, whether or not caused by the act or
omission of any person, including Landlord or its agent, or by the
bursting, leaking or overflowing of water, sewer or sprinkler pipes,
plumbing fixtures, or any other act or thing, unless such damage to, or
theft or loss of, such property results directly from the negligence or
willful misconduct of Landlord and then only to the extent that Tenant, its
agents or any other persons, are not compensated therefor by Tenant's
insurance. In no event shall Landlord or its agent be liable for
consequential damages.
(f) Landlord shall deliver the Storage Space with full height walls,
sprinklers, appropriate lighting and a secure locked door. Except as
specifically provided herein, Tenant hereby agrees to accept the Storage
Space in its "as is" condition existing on the Commencement Date and
Landlord shall have no obligation to construct any tenant improvements to
the Storage Space on behalf of Tenant. Tenant is not entitled to any
improvement allowance pursuant to the terms of the Lease. Landlord will not
provide heat, air conditioning, water, char service or any other utility or
service to the Premises and the provisions of Section 11 of the Lease shall
not apply to the Storage Space.
(g) Notwithstanding any provision herein or in the Lease to the
contrary, the Storage Space shall not be counted in connection with, or
applied to, the calculation of Tenant's Share set forth in Section 1.11 of
the Lease nor the calculation of the number of parking spaces Landlord
shall allocate to Tenant pursuant to Section 1.13 of the Lease.
14. Relocation of Existing Tenant. Tenant hereby acknowledges that Landlord
has entered into a lease with another tenant ("Existing Tenant") for
approximately Eight Thousand Six Hundred (8,600) rentable square feet on the
first floor of the Building ("First Floor Premises"). Landlord has the right, at
Landlord's sole cost and expense, to relocate the Existing Tenant to other space
in the Building. In partial consideration of Tenant's willingness to enter into
this Lease, Landlord has agreed to relocate the Existing Tenant. Tenant hereby
agrees to pay one-half (1/2) of the actual third-party costs of preparing a
second set of space plans and working drawings for the Existing Tenant for the
alternate space, provided that in no event will Tenant's costs in connection
with such plans exceed Ten Thousand and No/100 Dollars ($10,000.00) ("Tenant's
Contribution"). Tenant's Contribution shall be deducted from the Improvement
Allowance. In addition, if at such time as this Lease is executed, Landlord has
commenced construction of the First Floor Premises for the existing tenant,
and/or has completed construction of the First Floor Premises and/or the
Existing Tenant has moved into the First Floor Premises, Tenant shall be
responsible for all costs incurred by Landlord in connection with such
construction of the First Floor Premises, as well as all costs associated with
relocating the Existing Tenant to such alternate space.
15. UPS/Generator.
(a) Landlord agrees to permit Tenant, at Tenant's sole cost and
expense, to install, operate, maintain and replace an uninterrupted power
source, stationary batteries, chargers and/or generators and related
above-ground fuel tanks (collectively, the "Equipment") adjacent to the
Building in a location designated by Landlord in its sole discretion,
provided Tenant obtains all necessary approvals, permits and licenses from
all governmental authorities having jurisdiction over such matters. Tenant
shall install the Equipment in a good and safe manner in accordance with
the terms and conditions of this Lease, including, without limitation, all
of the provisions contained in Section 8.3 of the Lease. Tenant shall
provide reasonable notice to Landlord of the time and date upon which it
desires to install the Equipment. Landlord shall have the right to have a
representative present at the installation of the Equipment in order to
approve the method of installation and performance thereof. The Equipment
shall be screened in a manner and design acceptable to Landlord in its sole
but reasonable discretion. Tenant shall bear all costs and expenses
associated with the installation of such Equipment and Tenant shall be
responsible for and shall bear all costs and expenses associated with the
operation, maintenance, replacement and removal of said Equipment upon the
expiration or earlier termination of the Lease. Tenant understands and
acknowledges that Landlord shall not be responsible for the operation of
any such back-up power facility. At the expiration or earlier termination
of the Lease, the Equipment shall be removed from its location at Tenant's
sole cost and Tenant shall restore such area to the condition existing
prior to such installation, and any damage caused by such removal shall be
repaired at Tenant's sole cost. If Tenant fails to so remove the Equipment
within ten (10) days of the termination of this Lease, Tenant hereby
authorizes Landlord to remove and dispose of the Equipment and charge
Tenant for all costs and expenses incurred. Tenant agrees that Landlord
shall not be liable for any property disposed of or removed by Landlord.
Tenant's obligation to perform and observe this covenant shall survive the
expiration or earlier termination of the Lease. If the proposed Equipment
are placed in the parking lot, Tenant's allotted parking spaces shall be
reduced by the amount of spaces required to accommodate such Equipment.
(b) Further, Tenant shall construct, operate and maintain such
Equipment in accordance with all applicable laws, including all
environmental laws, ordinances, rules and regulations and in compliance
with the reasonable requirements of the insurers of the Building. Tenant
hereby agrees to indemnify Landlord from and against any breach by Tenant
of the obligations stated in the preceding sentence, and agrees to defend
and hold Landlord harmless from and against any and all claims, judgments,
damages, penalties, fines, costs, liabilities, or losses (including,
without limitation, diminution in value of the Building, damages for the
loss or restriction or use of rentable space or of any amenity of the
Building, damages arising from any adverse impact on marketing of space in
the Building, sums paid in settlement of claims, reasonable attorneys'
fees, consultant fees and expert fees) which arise during or after the Term
of this Lease as a result of such breach.
(c) Tenant shall indemnify, defend and hold Landlord, its principals,
officers, directors, agents, employees and servants harmless from and
against any liability, loss, costs, claims, damage and expense of whatever
kind arising directly or indirectly from the installation, operation,
maintenance, repair, and removal of such Equipment, including, but not
limited to, attorneys' fees and court costs.
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(d) Tenant shall pay all taxes of any kind or nature whatsoever levied
upon such Equipment and all licensing fees, franchise fees and other taxes,
expenses and other costs of any nature whatsoever relating to the
construction, ownership, maintenance and operation of said Equipment.
16. Telecom/Broadband Access. Tenant will be requiring fiber connection
with a minimum capacity of an OC-3 sonet ring for its exclusive use. As part of
Landlord's Work as referenced in Schedule 1-A herein, Landlord, at Landlord's
sole cost and expense, will provide dual (divergent) paths from the street to
the Building demarcation room, as reviewed with Verizon engineers and pursuant
to plans and specifications to be approved by Tenant and Landlord. Tenant shall
be responsible for delivery of Telecom/Broadband to the Premises and shall have
the right to create two (2) divergent paths from the Building demarcation room
to the Premises, at Tenant's sole cost and expense, subject to Landlord's
consent, which shall not be unreasonably withheld or delayed. Tenant shall have
the right to utilize existing floor penetrations for telecom subject to Landlord
consent, which shall not be unreasonably withheld or delayed.
17. Food Services. Landlord shall contract with a food service vendor who
will operate a small cafe in the Building to sell continental breakfast fare,
lunch, salads, sandwiches, soups, specialty items and snacks to occupants of the
Building. Landlord shall use commercially reasonable efforts to enter into such
contract within three (3) months following the Commencement Date. The prices
charged and services provided by any such food service vendor shall be
comparable to the services and prices offered by other food service vendors in
similar Buildings located in the same geographic area as the Building
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