<DOCUMENT>
<TYPE>EX-10.3
<SEQUENCE>4
<FILENAME>w91414exv10w3.txt
<DESCRIPTION>LEASE AGREEMENT BETWEEN ALTEON AND MACK-CALI
<TEXT>
<PAGE>
Exhibit 10.3
LEASE
FROM:
MAPLE 6 CAMPUS L.L.C.
LESSOR
TO:
ALTEON INC.
LESSEE
BUILDING:
6 CAMPUS DRIVE
PARSIPPANY, NEW JERSEY
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DESCRIPTION:............................................................................ 4
2. TERM:................................................................................... 4
3. BASIC RENT:............................................................................. 4
4. USE AND OCCUPANCY:...................................................................... 4
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:.............................................. 4
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:................................................. 7
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:............................................. 7
8. ASSIGNMENT AND SUBLEASE:................................................................ 7
9. COMPLIANCE WITH RULES AND REGULATIONS:.................................................. 12
10. DAMAGE TO BUILDING:..................................................................... 12
11. EMINENT DOMAIN:......................................................................... 13
12. INSOLVENCY OF LESSEE:................................................................... 14
13. LESSOR'S REMEDIES ON DEFAULT:........................................................... 14
14. DEFICIENCY:........................................................................... 14
15. SUBORDINATION OF LEASE:............................................................... 15
16. SECURITY DEPOSIT:..................................................................... 15
17. RIGHT TO CURE LESSEE'S BREACH:........................................................ 16
18. CONSTRUCTION LIENS:................................................................... 16
19. RIGHT TO INSPECT AND REPAIR:.......................................................... 16
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:............................... 17
21. INTERRUPTION OF SERVICES OR USE:...................................................... 17
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:.......................................... 18
23. ADDITIONAL RENT:...................................................................... 19
24. LESSEE'S ESTOPPEL:.................................................................... 23
25. HOLDOVER TENANCY:..................................................................... 23
26. RIGHT TO SHOW PREMISES:............................................................... 23
27. LESSOR'S WORK - LESSEE'S DRAWINGS:.................................................... 23
28. WAIVER OF TRIAL BY JURY:.............................................................. 24
29. LATE CHARGE:.......................................................................... 24
30. LESSEE'S INSURANCE:................................................................... 24
31. NO OTHER REPRESENTATIONS:............................................................. 26
32. QUIET ENJOYMENT:...................................................................... 26
33. INDEMNITY:............................................................................ 26
34. ARTICLE HEADINGS:..................................................................... 27
35. APPLICABILITY TO HEIRS AND ASSIGNS:................................................... 27
36. OUTSIDE PARKING SPACES:............................................................... 27
</TABLE>
<PAGE>
<TABLE>
<S> <C>
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:.............................................. 27
38. PARTIAL INVALIDITY:................................................................... 27
39. LESSEE'S BROKER:...................................................................... 27
40. PERSONAL LIABILITY:................................................................... 28
41. NO OPTION:............................................................................ 28
42. DEFINITIONS:.......................................................................... 28
43. LEASE COMMENCEMENT:................................................................... 29
44. NOTICES:.............................................................................. 30
45. ACCORD AND SATISFACTION:................................................................. 30
46. EFFECT OF WAIVERS:....................................................................... 30
47. LEASE CONDITION:......................................................................... 30
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:.............................................. 30
49. LESSOR'S RESERVED RIGHT:................................................................. 31
50. CORPORATE AUTHORITY:..................................................................... 31
51. AFTER-HOURS USE:......................................................................... 31
52. LESSEE'S EXPANSION/RELOCATION:........................................................... 31
53. BUILDING PERMIT:......................................................................... 32
54. OPTION TO RENEW:......................................................................... 32
55. STORAGE SPACE:........................................................................... 34
56. LESSOR'S INSURANCE:...................................................................... 34
57. ATTORNEY'S FEES:......................................................................... 35
</TABLE>
<PAGE>
LEASE, is made the 21st day of October 2003 ("Lease"), between MAPLE 6
CAMPUS L.L.C. ("Lessor"), whose address is c/o Mack-Cali Realty Corporation, 11
Commerce Drive, Cranford, New Jersey 07016 and ALTEON INC. ("Lessee"), whose
address is 170 Williams Drive, Ramsey, New Jersey 07446.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of this Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during
calendar year 2004.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred
during calendar year 2004.
C. Insurance Cost Expense Stop: $ 22,243.65.
D. Utility and Energy Costs Expense Stop: $148,291.00.
3. BUILDING shall mean 6 Campus Drive, Parsippany, New Jersey.
4. BUILDING HOLIDAYS shall be those shown on Exhibit E attached hereto and
made a part hereof.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m.,
but excluding those holidays as set forth on Exhibit F attached hereto
and made a part hereof, except that Common Facilities, lighting in the
Building and Office Building Area shall be maintained for such
additional hours as, in Lessor's reasonable judgment, is necessary or
desirable to insure proper operating of the Building and Office
Building Area.
6. COMMENCEMENT DATE is December 1, 2003, and shall for purposes hereof be
subject to Articles 27 and 43 hereof. In no event shall the
Commencement Date be earlier than December 1, 2003, unless Lessee or
anyone claiming under or through Lessee shall occupy the Premises for
the conduct of business.
7. DEMISED PREMISES OR PREMISES shall be deemed to be ten thousand eight
hundred thirty (10,830) gross rentable square feet as shown on Exhibit
A attached hereto and made a part hereof, which includes an allocable
share of the Common Facilities as defined in Section 42(b) hereof.
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof:
<TABLE>
<S> <C>
Exhibit A Location of Premises
Exhibit A-1 Office Building Area
Exhibit B Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Lessee Estoppel Certificate
Exhibit G Commencement Date Agreement
</TABLE>
1
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<TABLE>
<S> <C>
Exhibit H Letter of Credit Form
Exhibit I Storage Space License Agreement
Exhibit J Confidentiality Agreement
</TABLE>
9. EXPIRATION DATE shall be the last day of the month in which the day
before the three (3) year and one (1) month anniversary of the
Commencement Date occurs.
10. FIXED BASIC RENT shall mean the sum of EIGHT HUNDRED TWELVE THOUSAND
TWO HUNDRED FIFTY AND 00/100 DOLLARS ($812,250.00) for the Term,
payable as follows:
<TABLE>
<CAPTION>
Months Yearly Rate Monthly Installment
------ ----------- -------------------
<S> <C> <C>
1 $ 0.00 $ 0.00
2-12 $259,920.00 $21,660.00
13-24 $270,750.00 $22,562.50
25-37 $281,580.00 $23,465.00
</TABLE>
11. LESSEE'S BROKER shall mean Cushman & Wakefield of New Jersey, Inc.
12. LESSEE'S PERCENTAGE shall be seven and three tenths percent (7.3%),
subject to adjustment as provided for in Section 42(d) hereof.
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1 attached hereto and
made a part hereof.
14. PARKING SPACES shall mean a total of forty-three (43) spaces as
follows:
Assigned: 3
Unassigned: 40
15. PERMITTED USE shall be general, executive and administrative office use
and for no other purpose.
16. SECURITY DEPOSIT shall be the sum of TWO HUNDRED FIFTY THOUSAND AND
00/100 DOLLARS ($250,000.00).
Lessee may deliver to Lessor, in lieu of the cash deposit set forth in
this Article, an irrevocable negotiable letter of credit issued by and
drawn upon such commercial bank selected by Lessee and reasonably
acceptable to Lessor and in form and content reasonably acceptable to
Lessor (the form attached hereto and made a part hereof as Exhibit H,
shall be deemed acceptable to Lessor) for the account of Lessor, in the
sum of TWO HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($250,000.00).
Said letter of credit shall be for a term of not less than one (l) year
and shall be automatically renewed by the bank (without notice from
Lessor) (i.e., an "evergreen" letter of credit), no later than thirty
(30) days prior to its expiration, and the expiration of each
replacement thereof, until Lessor shall be required to return the
Security Deposit to Lessee pursuant to the terms of this Lease, but in
no event earlier than thirty (30) days after the Expiration Date, and
each such renewed letter of credit shall be delivered to Lessor no
later than thirty (30) days prior to the expiration of the letter of
credit then held by Lessor. If any portion of the Security Deposit
shall be utilized by Lessor in the manner permitted by this Lease,
Lessee shall, within five (5) business days after request by Lessor,
replenish the security account by depositing with Lessor, in cash or by
letter of credit, an amount equal to that utilized by Lessor. Failure
of Lessee to comply strictly with the provisions of this Article shall
constitute a material breach of this Lease and Lessor shall be entitled
to present the letter of credit then held by it for payment (without
notice to Lessee). If the cash security is converted into a letter of
credit, the provisions with respect to letters of credit shall apply,
mutatis mutandis, to such letter of credit deposit. In the event of a
bank failure or insolvency affecting the letter of credit, Lessee shall
replace same within twenty (20) days after being requested to do so by
Lessor.
Provided that: (i) this Lease is in full force and effect; and (ii)
Lessee is not in monetary or material non-monetary default hereunder,
after the expiration of applicable notice and cure
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<PAGE>
periods, the Security Deposit shall be reduced by the sum of $50,000.00
on the one (1) year anniversary of the Commencement Date and shall be
further reduced by the sum of $50,000.00 on the two (2) year
anniversary of the Commencement Date.
17. TERM shall mean three (3) years and one (1) month from the Commencement
Date, plus the number of days, if any, to have this Lease expire on the
last day of a calendar month, unless extended pursuant to any option
contained herein.
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<PAGE>
W I T N E S S E T H
For and in consideration of the covenants herein contained,
and upon the terms and conditions herein set forth, Lessor and Lessee agree as
follows:
1. DESCRIPTION:
Lessor hereby leases to Lessee, and Lessee hereby hires from Lessor,
the Premises as defined in the Preamble which includes an allocable
share of the Common Facilities, as shown on the plan or plans,
initialed by the parties hereto, marked Exhibit A attached hereto and
made part of this Lease in the Building as defined in the Preamble
("Building") which is situated on that certain parcel of land ("Office
Building Area") as described on Exhibit A-1 attached hereto and made
part of this Lease, together, with the right to use in common with
other lessees of the Building, their invitees, customers and employees,
those public areas of the Common Facilities as hereinafter defined.
2. TERM:
The Premises are leased for a term to commence on the Commencement
Date, and to end at 12:00 midnight on the Expiration Date, all as
defined in the Preamble.
3. BASIC RENT:
Lessee shall pay to Lessor during the Term, the Fixed Basic Rent as
defined in the Preamble ("Fixed Basic Rent") payable in such coin or
currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts. The
Fixed Basic Rent shall accrue at the Yearly Rate as defined in the
Preamble and shall be payable, in advance, on the first (1st) day of
each calendar month during the Term at the Monthly Installments as
defined in the Preamble, except that a proportionately lesser sum may
be paid for the first and last months of the Term of this Lease if the
Term commences on a day other than the first (1st) day of the month, in
accordance with the provisions of this Lease herein set forth. Lessor
acknowledges receipt from Lessee of the first (1st) monthly installment
by check, subject to collection, for Fixed Basic Rent for the first
month of the Term. Lessee shall pay Fixed Basic Rent, and any
Additional Rent as hereinafter provided, to Lessor at Lessor's above
stated address, or at such other place as Lessor may designate in
writing, without demand and without counterclaim, deduction or set off,
except as otherwise provided herein.
4. USE AND OCCUPANCY:
Lessee shall use and occupy the Premises for the Permitted Use as
defined in the Preamble. Lessor represents that the Permitted Use is
permitted by the certificate of occupancy covering the Building.
Lessee hereby acknowledges that "no smoking" is permitted in the Common
Facilities.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:
(a) Lessee shall commit no act of waste and shall take good care
of the interior, non-structural portions of the Premises and
the fixtures and appurtenances therein, and shall, in the
use and occupancy of the Premises, conform to all laws,
orders and regulations of the federal, state and municipal
governments or any of their departments affecting Lessee's
particular use or manner of use of the Premises and with any
and all environmental requirements resulting from the
Lessee's use of the Premises, this covenant to survive the
expiration or sooner termination of this Lease. However,
Lessee shall have the right to contest, by appropriate
proceedings diligently conducted in good faith in the name
of Lessee or, with the prior consent of Lessor, which
consent shall not be unreasonably withheld, conditioned or
delayed, in the name of Lessor or both, and without cost or
expense to Lessor, the validity or application of any law,
ordinance, order, rule, regulation or legal requirement of
any nature whatsoever having applicability to this Lease and
Lessee's obligations or rights hereunder. Lessee may also
postpone compliance with any such law, ordinance, order,
rule, regulation or legal requirement pending
4
<PAGE>
the outcome of any contest proceedings , even if Lessee
incurs a lien, charge or liability by reason of such
postponement, to the extent that and for so long as: (i)
such contest or postponement does not subject Lessor to
criminal or civil liability; (ii) Lessee furnishes to Lessor
security, reasonably satisfactory to Lessor, against any
lien, loss, fine, penalty, interest or inquiry by reason of
any contest or postponement; and (iii) such contest does not
impair or negatively affect any pending sale or financing
(current or prospective) involving the Building. Lessor will
not be required to join any proceedings referred to in this
Section unless the provision of any applicable law, rule or
regulation at the time in effect requires such proceedings
be brought by or in the name of Lessor. In that event,
Lessor will join the proceedings or permit them to be
brought in its name if Lessee pays all related expenses
(including Lessor's reasonable attorney's fees). Lessor
shall, subject to the same being included in Operating
Costs, make all necessary repairs to the Premises, the
Building, the Common Facilities and to the assigned parking
areas, if any (including structure and exterior) except
where the repair has been made necessary by misuse or
neglect by Lessee or Lessee's agents, servants, visitors or
licensees, in which event Lessor shall nevertheless make the
repair but Lessee shall pay to Lessor, as Additional Rent,
within thirty (30) days after demand, the actual
out-of-pocket reasonable costs therefor, together with
appropriate supporting documentation. All improvements made
by Lessee to the Premises, which are so attached to the
Premises that they cannot be removed without material injury
to the Premises (excluding, however, Lessee's "rolling
files"), shall become the property of Lessor upon
installation. Not later than the last day of the Term,
Lessee shall, at Lessee's expense, remove all Lessee's
personal property and those improvements made by Lessee
which have not become the property of Lessor, including
trade fixtures, cabinetwork, movable paneling, partitions
and the like, repair all injury done by or in connection
with the installation or removal of said property and
improvements, and surrender the Premises in as good
condition as they were at the beginning of the Term,
reasonable wear and tear, and damage by fire, the elements,
casualty, condemnation, eminent domain or other cause not
due to the misuse or neglect by Lessee, Lessee's agents,
servants, visitors or licensees excepted. If requested by
either party, Lessor and Lessee shall coordinate an
inspection of the Premises at the end of the Term. All other
property of Lessee remaining on the Premises after the last
day of the Term of this Lease shall be conclusively deemed
abandoned and may be removed by Lessor, and Lessee shall
reimburse Lessor for the actual out-of-pocket reasonable
cost of such removal. Lessor may have any such property
stored at Lessee's risk and expense.
Lessor shall comply with all laws, ordinances, orders,
rules, regulations or legal requirements affecting the
Building with which Lessee is not required to comply
hereunder; provided, however, that the cost of such
compliance shall be included in Operating Costs to the
extent provided in Article 23 hereof.
Notwithstanding the foregoing, Lessor shall inform Lessee at
the time Lessor grants its consent to any alteration,
addition or improvement, excluding The Work (as defined in
Exhibit C), whether Lessor shall require Lessee to remove
the alteration, addition or improvement at the end of the
Term. If Lessor fails to designate an item for removal at
the time it consents to such alteration, addition or
improvement, such item may remain in the Premises at the
expiration or earlier termination of this Lease.
ENVIRONMENTAL
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall, at Lessee's
own expense, promptly comply with each and every federal,
state, county and municipal environmental law, ordinance,
rule, regulation, order, directive and requirement, now or
hereafter existing (collectively, "Environmental Laws"),
applicable to Lessee's use of the Premises, Lessee, Lessee's
operations at the Premises, or all of them. Lessee shall not
be responsible for the remediation of any preexisting
conditions or violations of Environmental Laws by Lessor or
Lessor's Representatives (as hereinafter defined). To the best
of Lessor's knowledge, the Building and the Office Building
Area is presently in compliance with Environmental Laws.
Nothing contained herein shall be deemed to prevent Lessee
from using ordinary office and
5
<PAGE>
cleaning supplies in reasonable quantities in the Premises.
(c) ISRA COMPLIANCE. Lessee shall, at Lessee's own expense, comply
with the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et
seq., the regulations promulgated thereunder and any amending
and successor legislation and regulations ("ISRA") arising out
of Lessee's acts or omissions.
(d) INFORMATION TO LESSOR. At no expense to Lessor, Lessee shall
promptly provide all information and sign all reasonable
documents requested by Lessor with respect to compliance with
Environmental Laws.
(e) LESSOR AUDIT. Lessee shall permit Lessor and its
representatives access to the Premises, from time to time, to
conduct an environmental assessment, investigation and
sampling. Such entry shall be performed in a manner using
reasonable efforts to minimize interference with Lessee's use
of the Premises, and Lessor shall be accompanied by a
representative of Lessee. If Lessor reasonably believes that
Lessee has violated this provision, after the expiration of
applicable notice and cure periods the actual out-of-pocket
reasonable cost of the assessment, investigation and sampling
shall be borne by Lessee.
(f) LESSEE REMEDIATION. Should any assessment, investigation or
sampling reveal the existence of any spill, discharge or
placement of Contaminants (as hereinafter defined) in, on,
under, or about, or migrating from or onto the Premises, the
Building or the Office Building Area, as a result of the
action or omission of Lessee or a Lessee Representative (as
hereinafter defined), then, in addition to being in default
under this Lease, after the expiration of the applicable
notice and cure periods, and Lessor having all rights
available to Lessor under this Lease and by law by reason of
such default, Lessee shall, at Lessee's own expense, in
accordance with Environmental Laws, undertake all action
reasonably required by Lessor and any governmental authority,
including, without limitation, promptly obtaining and
delivering to Lessor an unconditional No Further Action
Letter. For purposes of this Article, the term "Lessee's
Representative" shall mean any shareholder, officer, director,
member, partner, employee, agent, licensee, assignee,
sublessee or invitee of Lessee, or any third party for whom
Lessee is legally responsible. Lessee's remedial action may
involve engineering or institutional controls, a groundwater
classification exception area or well restriction area, and
Lessee's remedial action shall meet the most stringent
published or unpublished remediation standards for soil,
surface water, groundwater and drinking water for continued
use of the Building as commercial. Promptly upon completion of
all required investigatory and remedial activities, Lessee
shall, at Lessee's own expense, to Lessor's reasonable
satisfaction, restore the affected areas of the Premises, the
Building or the Office Building Area, as the case may be, from
any damage or condition caused by the investigatory or
remedial work.
(g) ENVIRONMENTAL QUESTIONNAIRE. Within fifteen (15) days
following Lessor's request, Lessee shall complete, execute and
deliver to Lessor an environmental questionnaire in form and
substance reasonably satisfactory to Lessor.
(h) ENVIRONMENTAL DOCUMENTS AND CONDITIONS. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the
Office Building Area, of which the Premises is a part, in the
possession or under the control of Lessee, including, without
limitation, plans, reports, correspondence and submissions.
During the Term of this Lease and subsequently, promptly upon
receipt by Lessee or Lessee's Representative, Lessee shall
deliver to Lessor all Environmental Documents concerning or
generated by or on behalf of Lessee, whether currently or
hereafter existing. In addition, Lessee shall promptly notify
Lessor of any environmental condition of which Lessee has
knowledge, which may exist in, on, under, or about, or may be
migrating from or onto the Building or the Office Building
Area.
(i) LESSOR'S RIGHT TO PERFORM LESSEE'S OBLIGATIONS.
Notwithstanding anything to the contrary set forth in this
Lease, in the event, pursuant to this Lease, Lessee is
required to undertake any sampling, assessment, investigation
or remediation with respect to the Premises, the Building or
the Office Building Area, as the case may be, then, at
6
<PAGE>
Lessor's discretion, Lessor shall have the right, upon notice
to Lessee, and after the expiration of applicable notice and
cure periods, from time to time, to perform such activities at
Lessee's expense, and all actual out-of-pocket reasonable sums
incurred by Lessor shall be paid by Lessee, as Additional
Rent, within thirty (30) days after written request, together
with reasonable documentation.
(j) INDEMNITY. Lessee shall indemnify, defend and hold harmless
Lessor, Lessor's officers, directors, shareholders, employees
and personal or legal representatives from and against any and
all claims, liabilities, losses, damages (excluding
consequential damages), penalties and costs, foreseen or
unforeseen, including, without limitation, reasonable counsel,
engineering and other professional or expert fees, which an
indemnified party may incur resulting directly or indirectly,
wholly or partly from Lessee's actions or omissions with
regard to Lessee's obligations under this Article. In no event
shall this indemnity be deemed to cover preexisting conditions
or violations of Environmental Laws by Lessor or Lessor's
Representatives in the Premises.
(k) SURVIVAL. This Article shall survive the expiration or earlier
termination of this Lease. Lessee's failure to abide by the
terms of this Article shall be restrainable or enforceable, as
the case may be, by injunction.
(l) INTERPRETATION. The obligations imposed upon Lessee under
subparagraphs (a) through (j) hereof are in addition to and
are not intended to limit, but to expand upon, the obligations
imposed upon Lessee under this Article 5. As used in this
Article, the term "Contaminants" shall include, without
limitation, any regulated substance, toxic substance,
hazardous substance, hazardous waste, pollution, pollutant,
contaminant, petroleum, asbestos or polychlorinated biphenyls,
as defined or referred to in any Environmental Laws. Where a
law or regulation defines any of these terms more broadly then
another, the broader definition shall apply.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
Lessee shall not make any alterations, additions or improvements in, to
or about the Premises, with the exception of decorative or
non-structural alterations, additions or improvements costing less than
TWENTY-FIVE THOUSAND AND 00/100 DOLLARS ($25,000.00), without first
obtaining the written consent of Lessor, which consent shall not be
unreasonably withheld, conditioned or delayed, if they do not affect
the Building structure or systems. Upon Lessee's request, Lessor shall
specify the reason(s) for Lessor's denial of its consent to a specific
alteration, addition or improvement.
Lessor will, at Lessee's sole cost and expense, assist Lessee in and
execute any reasonable documents required for the procurement of any
licenses, permits, "sign-offs", approvals or certificates which may be
required by any governmental agency or authority with respect to any
alterations, additions or improvements in, to or about the Premises
and/or for obtaining any services, utilities or facilities from any
public utility supplying the same to the Building.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building, unless Lessee
pays to Lessor, within thirty (30) days after written demand, the full
amount of any increase in the rate of fire insurance on the Building
resulting therefrom. However, Lessor represents and warrants to Lessee
that, to its knowledge, Lessee's use of the Premises for the purposes
permitted by this Lease will not subject Lessee to any obligations
(including, but not limited to, payment of increased premiums)
regarding Lessor's fire insurance policies.
8. ASSIGNMENT AND SUBLEASE:
Provided Lessee is not in default of any provisions of this Lease,
after the expiration of the applicable notice and cure periods, Lessee
may assign this Lease or sublease all or any part of the Premises to
any party subject to the following:
7
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a. In the event Lessee desires to assign this Lease or sublease
all or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be
communicated to Lessor in writing no less than thirty (30)
days prior to the effective date of any such sublease or
assignment, and, prior to such effective date, Lessor shall
have the option, exercisable in writing to Lessee within
twenty (20) days following Lessor's receipt of Lessee's
communication, to: (i) sublease such space from Lessee at the
lower rate of (a) the rental rate per rentable square foot of
Fixed Basic Rent and Additional Rent then payable pursuant to
this Lease, or (b) the terms set forth in the proposed
sublease; (ii) recapture in the case of subletting, that
portion of the Premises to be sublet or all of the Premises in
the case of an assignment ("Recapture Space") so that such
prospective sublessee or assignee shall then become the sole
Lessee of Lessor hereunder; or (iii) recapture the Recapture
Space for Lessor's own use, in either of the aforesaid events,
Lessee shall be fully released from any and all obligations
hereunder with respect to the Recapture Space.
Notwithstanding the foregoing, Lessor shall have no right to
exercise its rights pursuant to clauses (i), (ii) or (iii)
above, if the space that Lessee proposes to sublet is two
thousand (2,000) gross rentable square feet or less and the
term of such subletting, including renewal options, if any, is
to expire at any time prior to the end of the second (2nd)
Lease Year.
b. In the event that Lessor elects not to recapture this Lease or
sublease the Premises as hereinabove provided, Lessee may
nevertheless assign this Lease or sublet the whole or any
portion of the Premises, subject to Lessor's prior written
consent, which consent shall not be unreasonably withheld,
conditioned or delayed on the basis of the following terms and
conditions:
i. Lessee shall provide to Lessor the name and address
of the assignee or sublessee.
ii. The assignee shall assume, by written instrument, all
of the obligations of this Lease, and a copy of such
assumption agreement shall be furnished to Lessor
within ten (10) business days of its execution. Any
sublease shall expressly acknowledge that said
sublessee's rights against Lessor shall be no greater
than those of Lessee. Lessee further agrees that
notwithstanding any such subletting, no other and
further subletting of the Premises by Lessee or any
person claiming through or under Lessee shall or will
be made except upon compliance with and subject to
the provisions of this Article 8.
iii. Each sublease shall provide that it is subject and
subordinate to this Lease and to the matters to which
this Lease is or shall be subordinate, and that in
the event of default by Lessee under this Lease,
Lessor may, at its option, take over all of the
right, title and interest of Lessee, as sublessor,
under such sublease, and such sublessee shall, at
Lessor's option, attorn to Lessor pursuant to the
then executory provisions of such sublease, except
that Lessor shall not: (1) be liable for any previous
act or omission of Lessee under such sublease; or (2)
be subject to any offset not expressly provided in
such sublease which theretofore accrued to such
sublease to which Lessor has not specifically
consented in writing or by any previous prepayment of
more than one (1) month's rent.
iv. Lessee and each assignee shall be and remain liable
for the observance of all the covenants and
provisions of this Lease, including, but not limited
to, the payment of Fixed Basic Rent and Additional
Rent reserved herein, through the entire Term of this
Lease, as the same may be renewed, extended or
otherwise modified.
v. Lessee shall promptly pay to Lessor fifty percent
(50%) of any consideration received for any
assignment and/or fifty percent (50%) of the rent, as
and when received, in excess of the rent required to
be paid by Lessee for the area sublet computed on the
basis of an average square foot rent for the gross
square footage Lessee has leased, after first
deducting on a ratable basis over the term of any
sublease or the remaining Term of this Lease, all
reasonable
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costs and expenses incurred by Lessee and Lessee's
unamortized costs of any alterations, additions and
improvements to the Premises made by Lessee. Any
consideration for this Lease reasonably allocated to
Lessee's furniture, fixtures and equipment may be
retained by Lessee in its entirety.
vi. In any event, the acceptance by Lessor of any rent
from the assignee or from any of the sublessees or
the failure of Lessor to insist upon a strict
performance of any of the terms, conditions and
covenants herein shall not release Lessee herein, nor
any assignee assuming this Lease, from any and all of
the obligations herein during and for the entire Term
of this Lease.
vii. In Lessor's reasonable judgment, the proposed
assignee or sublessee is engaged in a business or
activity, and the Premises, or the relevant part
thereof, will be used in a manner, which: (1) is in
keeping with the then standard of the Building; and
(2) is limited to the use of the Premises as general,
executive and administrative offices.
viii. The proposed assignee or sublessee shall be an entity
which has existed for at least one (1) year and is
not then an occupant of any part of the Building or
any other building then owned by Lessor or its
affiliates within a three(3) mile radius of the
Building, provided that Lessor has equivalent space
available in the Building or in any other building
then owned by Lessor or its affiliates within a three
(3)mile radius of the Building.
ix. The proposed assignee or sublessee is not an entity
or a person with whom Lessor is or has been, within
the preceding six (6) month period, negotiating to
lease space in the Building or any other building
owned by Lessor or its affiliates within a three
(3)mile radius of the Building, provided that Lessor
has equivalent space available in the Building or in
any other building then owned by Lessor or its
affiliates within a three (3) mile radius of the
Building.
x. There shall not be more than two (2) sublessees in
the Premises (excluding a Lessee Affiliate) (as
hereinafter defined).
xi. Lessee shall not advertise the subtenancy for less
than the then current market rent per rentable square
foot for the Premises as though the Premises were
vacant.
xii. Lessee shall not have: (a) publicly advertised the
rental amount of the Premises without prior notice to
and approval by Lessor (which approval shall not be
unreasonably withheld, conditioned or delayed), nor
shall any advertisement state the name (as
distinguished from the address) of the Building; or
(b) listed the Premises for subletting or assignment
with a broker, agent or representative who does not
waive any entitlement to a commission or other fee
from Lessor in the event of a recapturing of the
Premises.
xiii. The proposed occupancy shall not, in Lessor's
reasonable opinion, increase the density of
population using the Premises to exceed one (1)
person per two hundred fifty (250) gross rentable
square feet of space or exceed the parking allocation
presently provided for in this Lease.
xiv. The proposed assignee or sublessee shall only use the
Premises for general, executive and administrative
offices and shall not be engaged in any of the
following:
(1) educational, including, but not limited to,
instructional facilities and correspondence
schools;
(2) employment agencies;
(3) model agencies;
(4) photographic studios or laboratories;
(5) spas, health, physical fitness or exercise
salons;
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(6) small loan offices;
(7) real estate brokerage or real estate sales
offices open to the general public or
construction offices;
(8) medical or dental facilities, including
professional offices, treatment facilities,
dispensaries or laboratories;
(9) federal, state or local government offices;
(10) so-called boiler room operations;
(11) retail stock brokerage offices;
(12) religious organizations making facilities
available to congregations for uses other
than business purposes; and
(13) furnished/shared executive office suite use.
xv. The proposed assignee or sublessee shall not be
entitled, directly or indirectly, to diplomatic or
sovereign immunity and shall be subject to the
service of process in, and the jurisdiction of, the
state courts of New Jersey.
xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for
each request for consent to any sublet or assignment
prior to its consideration of the same. Lessee
acknowledges that its sole remedy with respect to any
assertion that Lessor's failure to consent to any
sublet or assignment is unreasonable shall be the
remedy of specific performance and Lessee shall have
no other claim or cause of action against Lessor as a
result of Lessor's actions in refusing to consent
thereto, plus reasonable attorney's fees if Lessee
prevails. Lessee's waiver as to no other claims or
causes of action as a result of Lessor's actions in
refusing to consent hereunder shall not apply if it
is judicially determined that Lessor acted in bad
faith or maliciously with respect to its refusal to
consent hereunder. The parties agree that the
question of Lessor's reasonableness in refusing to
consent hereunder may be submitted to expedited
arbitration in accordance with the rules of the
office of the American Arbitration Association (or
any successor) nearest the Building. Upon Lessee's
request, Lessor shall specify the reasons for
Lessor's denial of its consent to a specific
subletting or assignment.
c. If Lessee is a corporation other than a corporation whose
stock is listed and traded on a nationally recognized stock
exchange, the provisions of sub-section a. hereof shall apply
to a transfer (however accomplished, whether in a single
transaction or in a series of related or unrelated
transactions) of stock (or any other mechanism such as, by way
of example, the issuance of additional stock, a stock voting
agreement or change in class(es) of stock) which results in a
change of "control" (as hereinafter defined) of Lessee as if
such transfer of stock (or other mechanism) which results in a
change of control of Lessee were an assignment of this Lease,
and if Lessee is a partnership or joint venture, said
provisions shall apply with respect to a transfer (by one or
more transfers) of an interest in the distributions of profits
and losses of such partnership or joint venture (or other
mechanism, such as, by way of example, the creation of
additional general partnership or limited partnership
interests) which results in a change of control of such a
partnership or joint venture, as if such transfer of an
interest in the distributions of profits and losses of such
partnership or joint venture which results in a change of
control of such partnership or joint venture were an
assignment of this Lease The provisions of sub-sections a. and
b. hereofshall not apply to transactions entered into by
Lessee with: (i) a Lessee Affiliate (as hereinafter defined);
or (ii) a corporation into or with which Lessee is merged or
consolidated, or with an entity to which all or substantially
all of Lessee's assets are transferred or to any sale of all
or substantially all of Lessee's stock, provided (a) Lessee is
not then in monetary or material non-monetary default under
this Lease, after the expiration of applicable notice and cure
periods, (b) in the case of clause (ii) above, such merger,
consolidation or transfer of assets is for a good business
purpose and not principally for the purpose of transferring
the leasehold estate created hereby, and (c) except if Lessee
is "publicly traded", in the case of clause (ii) above, the
assignee or successor entity has a net worth as evidenced by
financial statements delivered to Lessor and certified by an
independent certified public accountant in accordance with
generally accepted accounting practices consistently applied
("Net Worth") after such merger, consolidation or acquisition
and assumption equal to or greater than the Net
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Worth of Lessee on the date hereof Lessee shall deliver to
Lessor proof reasonably satisfactory as to Lessee's Net Worth
within ten (10) days prior to the effective date of the
transaction. In determining the Net Worth of the successor
"Lessee" entity for purposes of this Section, Lessee may, at
its option, include the Net Worth of any surviving predecessor
Lessee continuing to have liability on or under this Lease
and/or any guarantor of Lessee's obligations under this Lease.
A "Lessee Affiliate" or "Affiliate of Lessee" means a
corporation or other entity controlled by, controlling or
under common control with Lessee. As used in this Lease, the
terms "control", "controlled by" or "under common control
with" shall mean ownership of (x) more than fifty percent
(50%) of the outstanding voting stock of a corporation (or
other majority equity and control interest if not a
corporation), and (y) the possession of power to direct or
cause the direction of the management and policy of such
corporation or other entity, whether through the ownership of
voting securities, by statute, according to the provisions of
a contract. Lessee may sublet all or any portion of the
Premises or assign this Lease to an Affiliate of Lessee
without Lessor's consent or recapture rights, provided that
Lessee shall continue to be liable under this Lease, and in
which event the provisions of sub-sections a. and b. hereof
shall not apply with respect thereto.
Notwithstanding anything contained herein, Lessee shall have
the right, without being required to obtain the consent of
Lessor (and without complying with the provisons of
sub-sections a. and b. hereof), to permit portions of the
Demised Premises to be used under so called "desk sharing"
arrangements by persons or entities which are an Affiliate of
Lessee (any such person or entity, a "User"), and which User
shall only use desk space in the Premises for the purposes
permitted by this Lease, and subject to and in compliance with
the following terms and conditions:
(1) a User shall have no rights under this Lease and
Lessor shall have no liability or obligation to any
User under this Lease or for any reason whatsoever in
connection with the use or occupancy of the Premises;
(2) no separate entrances to the Premises from public
areas shall be constructed to access the space used
by any User;
(3) Lessee shall give written notice to Lessor prior to
the occupancy of any User;
(4) any breach or violation of this Lease by a User shall
be deemed to be and shall constitute a default by
Lessee under this Lease, and any act or omission of a
User shall be deemed to be and shall constitute the
act or omission of Lessee under this Lease;
(5) the right of a User to occupy a portion of the
Premises shall not be deemed to be an assignment of,
or sublease under, this Lease and any occupancy of
the Premises shall automatically terminate upon
expiration or earlier termination of this Lease;
(6) Lessee hereby indemnifies and holds harmless Lessor,
any lessor and any mortgagee against loss, claim or
damage (excluding consequential) arising from the
acts or omission of any User; and
(7) no User shall be entitled, directly or indirectly, to
diplomatic or sovereign immunity and each User shall
be subject to the service of process at and the
jurisdiction of the courts of, the State of New
Jersey.
The provisions herein restricting transfers of Lessee's stock
shall not apply to any stock transfers among the existing
shareholders of Lessee or their immediate family members by
reason of estate planning, inheritance or otherwise, provided
that the Net Worth of Lessee shall remain unchanged as a
result of such transfer(s).
d. In the event that any or all of Lessee's interest in the
Premises and/or this Lease is transferred by operation of law
to any trustee, receiver, or other representative or agent of
Lessee, or to Lessee as a debtor in possession, and
subsequently any or all of Lessee's interest in the Premises
and/or this Lease is offered or to be offered by Lessee or any
trustee, receiver, or other representative or agent of Lessee
as to its estate or property (such person, firm or entity, the
"Grantor"), for assignment, conveyance, lease, or other
disposition to a person, firm or entity other than Lessor
(each such transaction, a "Disposition"), it is agreed that
Lessor has and shall have a right of first refusal to
purchase, take, or otherwise acquire, the same upon the same
terms and conditions as Grantor thereof shall accept upon such
Disposition to such
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other person, firm, or entity, and as to each such
Disposition, Grantor shall give written notice to Lessor in
reasonable detail of all of the terms and conditions of such
Disposition within twenty (20) days next following its
determination to accept the same but prior to accepting the
same, and Grantor shall not make the Disposition until and
unless Lessor has failed or refused to accept such right of
first refusal as to the Disposition, as set forth herein.
Lessor shall have thirty (30) days next following its receipt
of the written notice as to such Disposition in which to
exercise the option to acquire Lessee's interest by such
Disposition, and the exercise of the option by Lessor shall be
effected by notice to that effect sent to the Grantor; but
nothing herein shall require Lessor to accept a particular
Disposition or any Disposition, nor does the rejection of any
one such offer of first refusal constitute a waiver or release
of the obligation of the Grantor to submit other offers
hereunder to Lessor. In the event Lessor accepts such offer of
first refusal, the transaction shall be consummated pursuant
to the terms and conditions of the Disposition described in
the notice to Lessor. In the event Lessor rejects such offer
of first refusal, Grantor may consummate the Disposition with
such other person, firm, or entity, but any decrease in price
of more than five percent (5%) of the price sought from Lessor
or any change in the terms of payment for such Disposition
shall constitute a new transaction requiring a further option
of first refusal to be given to Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13,
if pursuant to the Federal Bankruptcy Code (the "Code"), or
any similar law hereafter enacted having the same general
purpose, Lessee is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease,
adequate assurance of future performance by an assignee
expressly permitted under such Code shall be deemed to mean
the deposit of cash security in an amount equal to the sum of
one (1) year's Fixed Basic Rent plus an amount equal to the
Additional Rent for the calendar year preceding the year in
which such assignment is intended to become effective, which
deposit shall be held by Lessor for the balance of the Term,
as security for the full performance of all of Lessee's
obligations under this Lease, to be held and applied in the
manner specified for the Security Deposit in Article 16
hereof.
f. Except as specifically set forth herein, no portion of the
Premises or of Lessee's interest in this Lease may be acquired
by any other person or entity, whether by assignment,
mortgage, sublease, transfer, operation of law or act of
Lessee, nor shall Lessee pledge its interest in this Lease or
in any Security Deposit required hereunder.
9. COMPLIANCE WITH RULES AND REGULATIONS:
Lessee shall observe and comply with the rules and regulations
hereinafter set forth in Exhibit B attached hereto and made a part
hereof, and with such further reasonable rules and regulations as
Lessor may prescribe, on written notice to Lessee, for the safety, care
and cleanliness of the Building, and the comfort, quiet and convenience
of other occupants of the Building. Lessor agrees to enforce each rule
and regulation in a uniform and nondiscriminatory manner. Lessee shall
not place a load upon any floor of the Premises exceeding the floor
load per square foot area which it was designed to carry and which is
allowed by law. Lessor reserves the right to reasonably prescribe the
weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Lessee,
at Lessee's expense, in settings sufficient, in Lessor's reasonable
judgment, to absorb and prevent vibration, noise and annoyance.
Notwithstanding the foregoing, Lessor hereby consents to Lessee's
installation of its "rolling files" in the Premises, provided that
Lessee does not exceed the floor load of the Premises.
10. DAMAGE TO BUILDING:
If the Building is damaged by fire or any other cause to such extent
the cost of restoration, as reasonably estimated by Lessor, will equal
or exceed twenty-five (25%) percent of the replacement value of the
Building (exclusive of foundations) just prior to the occurrence of the
damage, then Lessor may, no later than the sixtieth (60th) day
following the date of damage, give Lessee a notice of election to
terminate this Lease (provided that Lessor shall
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not discriminate against Lessee in its decision to terminate this
Lease), or if the cost of restoration will equal or exceed fifty
percent (50%) of such replacement value and if the Premises shall not
be reasonably usable for the purpose for which they are leased
hereunder, or if restoration of the damage, including, but not limited
to, restoration of the Office Building Area such that Lessee shall have
the parking spaces provided in Paragraph 14 of the Preamble to this
Lease, will require more than twelve (12) months to complete or if such
damage is not fully repaired and reasonable access to the Premises
restored within twelve (12) months from the date of damage, then, in
any such event Lessee may, no later than the sixtieth (60th) day
following the date of damage or following the end of said twelve (12)
month period, give Lessor a notice of election to terminate this Lease.
In either said event of election, this Lease shall be deemed to
terminate on the thirtieth (30th) day after the giving of said notice,
and Lessee shall surrender possession of the Premises within a
reasonable time thereafter, and the Fixed Basic Rent and any Additional
Rent, shall be apportioned as of the date of said surrender, and any
Fixed Basic Rent or Additional Rent paid for any period beyond said
date shall be repaid to Lessee (such obligation to survive the
termination of this Lease). If the cost of restoration shall not
entitle Lessor to terminate this Lease, or if, despite the cost, Lessor
does not elect to terminate this Lease, Lessor shall restore the
Building and the Premises with reasonable promptness and Lessee shall
have no right to terminate this Lease, except as set forth above. The
time period set forth above for completion of the restoration shall be
extended for a period not to exceed ninety (90) days for Force Majeure
(as hereinafter defined). Lessor need not restore fixtures and
improvements owned by Lessee. Notwithstanding anything to the contrary
contained herein, if more than twenty-five percent (25%) of the
Premises shall be rendered untenantable for the normal conduct of
Lessee's business as a result of a fire or casualty during the last
twelve (12) months of the Term, then the terms and conditions of this
Article 10 shall continue to control and be binding upon Lessor and
Lessee except that: (i) Lessee shall have the right to terminate this
Lease by giving notice to Lessor in accordance with this Article 10 if
Lessor's estimated time of restoration provides that the substantial
completion of the repairs of the Premises which are Lessor's
responsibility will take longer than one hundred twenty (120) days from
the date of the casualty; and (ii) the time period during which Lessor
shall substantially complete the restoration shall be the later of (x)
the date specified in Lessor's estimate and (y) one hundred twenty
(120) days after the date of such casualty, as either such date may be
extended for a period not to exceed thirty (30) days for Force Majeure.
In any case in which use of the Premises is affected by any damage to
the Building, there shall be either an abatement or an equitable
reduction in Fixed Basic Rent and Additional Rent, and an equitable
adjustment in the Base Period Costs as established in the Preamble,
depending on the period for which and the extent to which the Premises
are not reasonably usable for the purpose for which they are leased
hereunder. The words "restoration" and "restore" as used in this
Article 10 shall include repairs. If the damage results from the gross
negligence or willful misconduct of Lessee, Lessee's agents, servants,
visitors or licensees, Lessee shall not be entitled to any abatement or
reduction in Fixed Basic Rent, except to the extent of any rent
insurance received by Lessor. In the event of a fire or other casualty
and the Premises are rendered untenantable, Lessor shall use
commercially reasonable efforts to provide Lessee with temporary space
in a building owned by Lessor or an affiliate of Lessor upon terms and
conditions mutually satisfactory to Lessor and Lessee.
11. EMINENT DOMAIN:
If Lessee's use of the Premises is materially affected due to the
taking by eminent domain of: (a) the Premises or any part thereof or
any estate therein; or (b) any other part of the Building, or Office
Building Area (including the parking area), then, in either event, this
Lease shall terminate on the date when title vests pursuant to such
taking. The Fixed Basic Rent and any Additional Rent, shall be
apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date, shall be repaid
to Lessee (such obligation to survive the termination of this Lease).
Lessee shall not be entitled to any part of the award for such taking
or any payment in lieu thereof, but Lessee may file a separate claim
for any taking of fixtures and improvements owned by Lessee which have
not become Lessor's property, and for moving expenses, provided the
same shall, in no way, affect or diminish Lessor's award. In the event
of a partial taking which does not effect a termination of this Lease
but does deprive Lessee of the use of a portion of the Premises, there
shall either be an abatement or an equitable reduction of the Fixed
Basic Rent and Additional Rent, and an equitable reduction of the Base
Period Costs as established in the Preamble depending on the period for
which and the extent to
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which the Premises so taken are not reasonably usable for the purpose
for which they are leased hereunder.
12. INSOLVENCY OF LESSEE:
Either: (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee; or (b) a general assignment
by Lessee for the benefit of creditors; or (c) any action taken or
suffered by Lessee under any insolvency or bankruptcy act, shall
constitute a default of this Lease by Lessee, and Lessor may terminate
this Lease forthwith and upon notice of such termination Lessee's right
to possession of the Premises shall cease, and Lessee shall then quit
and surrender the Premises to Lessor but Lessee shall remain liable as
hereinafter provided in Article 14 hereof.
13. LESSOR'S REMEDIES ON DEFAULT:
If Lessee defaults in the payment of Fixed Basic Rent, or any
Additional Rent, or defaults in the performance of any of the other
covenants and conditions hereof or permits the Premises to become
deserted, abandoned or vacated, Lessor may give Lessee notice of such
default, and if Lessee does not cure any Fixed Basic Rent or Additional
Rent default within ten (10) days or other default within twenty (20)
days after giving of such notice (or if such other default is of such
nature that it cannot be completely cured within such period, if Lessee
does not commence such curing within such twenty (20) days and
thereafter proceed with reasonable diligence and in good faith to cure
such default), then Lessor may terminate this Lease on not less than
ten (10) days notice to Lessee, and on the date specified in said
notice, Lessee's right to possession of the Premises shall cease but
Lessee shall remain liable as hereinafter provided. If this Lease shall
have been so terminated by Lessor pursuant to Articles 12 or 13 hereof,
Lessor may at any time thereafter resume possession of the Premises by
any lawful means and remove Lessee or other occupants and their
effects. Lessee shall pay to Lessor, within thirty (30) days after
demand, such actual out-of-pocket reasonable expenses as Lessor may
incur, including, without limitation, court costs and reasonable
attorney's fees and disbursements, in enforcing the performance of any
obligation of Lessee under this Lease. Notwithstanding anything
contained herein, Lessee's vacating, deserting or abandoning of the
Premises shall not be deemed a default of this Lease, if Lessee submits
to Lessor then current financial statements, certified by Lessee's
chief financial officer or an independent certified public accountant,
evidencing to Lessor's reasonable satisfaction, that Lessee has the
financial resources to meet its obligations under this Lease.
14. DEFICIENCY:
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof,
as agent of Lessee or otherwise, for a term or terms to expire prior
to, at the same time as or subsequent to, the original Expiration Date
of this Lease, at Lessor's option and receive the rent therefor. Rent
so received shall be applied first to the payment of such actual
out-of-pocket reasonable expenses as Lessor may have incurred in
connection with the recovery of possession, redecorating, altering,
dividing, consolidating with other adjoining premises, or otherwise
changing or preparing for reletting, and the reletting, including
brokerage and reasonable attorney's fees, and then to the payment of
damages in amounts equal to the Fixed Basic Rent and Additional Rent
hereunder and to the reasonable costs and expenses of performance of
the other covenants of Lessee as herein provided. Lessee agrees, in any
such case, whether or not Lessor has relet, to pay to Lessor damages
equal to the Fixed Basic Rent and Additional Rent from the date of such
default to the date of expiration of the Term hereof and other sums
herein agreed to be paid by Lessee, less the net proceeds of the
reletting, if any, received by Lessor during the remainder of the
unexpired Term hereof, as ascertained from time to time, and the same
shall be payable by Lessee on the several rent days above specified.
Lessee shall not be entitled to any surplus accruing as a result of any
such reletting. In reletting the Premises as aforesaid, Lessor may
grant rent concessions, and Lessee shall not be credited therewith. No
such reletting shall constitute a surrender and acceptance or be deemed
evidence thereof. If Lessor elects, pursuant hereto, actually to occupy
and use the Premises or any part thereof during any part of the balance
of the Term as originally fixed or
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since extended, there shall be allowed against Lessee's obligation for
rent or damages as herein defined, during the period of Lessor's
occupancy, the reasonable value of such occupancy, not to exceed, in
any event, the Fixed Basic Rent and Additional Rent herein reserved,
and such occupancy shall not be construed as a release of Lessee's
liability hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option,
and at any time thereafter, and without notice or other action by
Lessor, and without prejudice to any other rights or remedies it might
have hereunder or at law or equity, become entitled to recover from
Lessee, as damages for such breach, in addition to such other sums
herein agreed to be paid by Lessee, to the date of re-entry, expiration
and/or dispossess, an amount equal to the difference between the Fixed
Basic Rent and Additional Rent reserved in this Lease from the date of
such default to the date of expiration of the original Term hereof and
the then fair and reasonable rental value of the Premises for the same
period. Said damages shall become due and payable to Lessor upon such
recovery of possession of the Premises by Lessor and without regard to
whether this Lease be terminated or not, and if this Lease be
terminated, without regard to the manner in which it is terminated. In
the computation of such damages, the difference between an installment
of Fixed Basic Rent and Additional Rent thereafter becoming due and the
fair and reasonable rental value of the Premises for the period for
which such installment was payable, shall be discounted to the date of
such default at the rate of six percent (6%) per annum.
Lessee hereby waives all right of redemption to which Lessee or any
person under Lessee might be entitled by any law now or hereafter in
force. In addition, in the event of a default which results in Lessor
recovering possession of the Premises, Lessor shall be under a duty
only to make reasonable efforts to relet the Premises to the extent
Lessor does not have other space available for lease in the Building to
mitigate Lessee's damages as provided for in this Article.
Lessor's remedies hereunder are in addition to any remedy allowed by
law.
15. SUBORDINATION OF LEASE:
This Lease shall, at Lessor's option, or at the option of any holder of
any underlying lease or holder of any mortgages or trust deed, be
subject and subordinate to any such underlying leases and to any such
mortgages or trust deed which may now or hereafter affect the real
property of which the Premises form a part, and also to all renewals,
modifications, consolidations and replacements of said underlying
leases and said mortgages or trust deed, provided that Lessor shall use
commercially reasonable efforts to obtain a non-disturbance agreement
from the holder of any such underlying lease, mortgage or trust deed.
Any reasonable expenses charged by the mortgagee in connection with the
obtaining of the aforesaid agreement shall be paid by Lessee. Although
no instrument or act on the part of Lessee shall be necessary to
effectuate such subordination, Lessee will, nevertheless, execute and
deliver such further instruments confirming such subordination of this
Lease as may be reasonably desired by the holders of said mortgages or
trust deed or by any of the lessor's under such underlying leases. If
any underlying lease to which this Lease is subject terminates, Lessee
shall, on timely request, attorn to the owner of the reversion.
Lessor represents that there currently is no mortgage encumbering the
Building.
16. SECURITY DEPOSIT:
Lessee shall deposit with Lessor on the signing of this Lease, the
Security Deposit as defined in the Preamble for the full and faithful
performance of Lessee's obligations under this Lease, including,
without limitation, the surrender of possession of the Premises to
Lessor as herein provided. If Lessor applies any part of said Security
Deposit to cure any default of Lessee, after the expiration of
applicable notice and cure periods, Lessee shall within five (5)
business days after written demand by Lessor, deposit with Lessor the
amount so applied so that Lessor shall have the full Security Deposit
on hand at all times during the Term of this Lease. In the event a bona
fide sale, subject to this Lease, Lessor shall have the right to
transfer the Security Deposit to the vendee, and Lessor shall be
considered released by Lessee
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from all liability for the return of the Security Deposit, provided
that the vendee receives the Security Deposit from Lessor, and Lessee
agrees to look solely to the new lessor for the return of the Security
Deposit, and it is agreed that this shall apply to every transfer or
assignment made of the Security Deposit to the new lessor. Provided
Lessee is not in default under this Lease, after the expiration of
applicable notice and cure periods, the Security Deposit (less any
portions thereof used, applied or retained by Lessor in accordance with
the provisions of this Article 16), shall be returned to Lessee within
thirty (30) days after the expiration or sooner termination of this
Lease and after delivery of the entire Premises to Lessor in accordance
with the provisions of this Lease. Lessee covenants that it will not
assign or encumber or attempt to assign or encumber the Security
Deposit and Lessor shall not be bound by any such assignment,
encumbrance or attempt thereof.
In the event of the insolvency of Lessee, or in the event of the entry
of a judgement in any court against Lessee which is not discharged
within ninety (90) days after entry, or in the event a petition is
filed by or against Lessee under any chapter of the bankruptcy laws of
the State of New Jersey or the United States of America, then in such
event, Lessor may require Lessee to deposit additional security in an
amount which in Lessor's sole judgement would be sufficient to
adequately assure Lessee's performance of all of its obligations under
this Lease including all payments subsequently accruing. Failure of
Lessee to deposit the security required by this Article 16 within ten
(10) days after Lessor's written demand shall constitute a material
breach of this Lease by Lessee.
17. RIGHT TO CURE LESSEE'S BREACH:
If Lessee breaches any covenant or condition of this Lease, Lessor may,
after the expiration of applicable notice and cure periods (except that
no notice need be given in case of emergency), cure such breach at the
expense of Lessee and the actual out-of-pocket reasonable amount of all
expenses, including reasonable attorney's fees, incurred by Lessor in
so doing (whether paid by Lessor or not) shall be deemed Additional
Rent payable within thirty (30) days after written demand from Lessor,
together with supporting documentation.
18. CONSTRUCTION LIENS:
Lessee shall, within thirty (30) days after notice from Lessor,
discharge or satisfy by payment, bonding or otherwise, any construction
liens for materials or labor claimed to have been furnished to the
Premises on Lessee's behalf (excluding The Work (as hereinafter
defined)).
19. RIGHT TO INSPECT AND REPAIR:
Lessor may enter the Premises but shall not be obligated to do so
(except as required by any specific provision of this Lease) at any
reasonable time on reasonable notice to Lessee (except that no notice
need be given in case of emergency) for the purpose of inspection or
the making of such repairs, replacement or additions in, to, on and
about the Premises or the Building, as Lessor deems reasonably
necessary or desirable. Except in case of emergency, Lessor shall be
accompanied by a representative of Lessee when entering the Premises,
provided that Lessee shall make such representative available to
Lessor, upon reasonable notice (which notice may be oral) to Lessee.
Except in the case of an emergency, upon Lessee's request and prior to
Lessor's entry into the Premises, Lessor shall execute a
confidentiality agreement in the form attached hereto and made a part
hereof as Exhibit J. Lessor shall endeavor to cause its agents or
contractors to execute such confidentiality agreement prior to entry
into the Premises; provided, however, Lessor shall have no liability
for its failure to obtain same and such agents and contractors shall
nevertheless have access to the Premises, subject to the provisions
hereof. Provided that Lessor uses diligence, temporarily partitions any
work area, repairs any damage to the Premises and makes reasonable
efforts to minimize interference with Lessee's quiet enjoyment of the
Premises in the first instance, and provided any additions or
replacements are permanently boxed in and do no reduce the square
footage of the Premises except to a de minimis extent, Lessee shall
have no claims or cause of action against Lessor by reason thereof. In
no event shall Lessee have any claim against Lessor for interruption of
Lessee's business, however occurring,
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including, but not limited to, that arising from the negligence of
Lessor, its agents, servants or invitees, or from defects, errors or
omissions in the construction or design of the Premises and/or the
Building, including the structural and non-structural portions thereof.
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:
Subject to intervening laws, ordinances, regulations and executive
orders, Lessor agrees to furnish, except on holidays, as set forth on
Exhibit E attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached
hereto and made a part hereof, and subject to the conditions
therein stated. Except as set forth on Exhibit D, Lessee shall
pay the cost of all other cleaning services required by
Lessee.
b. Heating, ventilating and air conditioning ("HVAC") as
appropriate for the season, and as set forth on Exhibit C-1
attached hereto and made a part hereof, together with Common
Facilities' lighting and electric energy all during Building
Hours (as defined in the Preamble).
c. Cold and hot water for drinking, cleaning, lavatory and pantry
purposes.
d. Elevator service during Building Hours; provided, however,
that Lessor shall provide at least one (1) elevator
twenty-four (24) hours per day, seven (7) days per week,
except in the case of an emergency.
e. Restroom supplies and exterior window cleaning when reasonably
required.
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC)
or Exhibit D or any other provision of this Lease, Lessor
shall not be liable for failure to furnish any of the
aforesaid services when such failure is due to Force Majeure,
as hereinafter defined. Lessor shall not be liable, under any
circumstances, including, but not limited to, that arising
from the negligence of Lessor, its agents, servants or
invitees, or from defects, errors or omissions in the
construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof,
for loss of or injury to Lessee or to property, however
occurring, through or in connection with or incidental to the
furnishings of, or failure to furnish, any of the aforesaid
services or for any interruption to Lessee's business, however
occurring.
g. Lessor shall provide twenty-four (24) hours per day, seven (7)
days per week access to the Premises, except in the case of an
emergency.
h. Lessor shall clean the interior and exterior of the windows of
the Premises at least once per year.
21. INTERRUPTION OF SERVICES OR USE:
Interruption or curtailment of any service maintained in the Building
or at the Office Building Area, if caused by Force Majeure, as
hereinafter defined, shall not entitle Lessee to any claim against
Lessor or to any abatement in rent, and shall not constitute a
constructive or partial eviction, unless Lessor fails to take measures
as may be reasonable under the circumstances to restore the service
without undue delay. If the Premises are rendered untenantable in whole
or in part, for a period of seven (7) consecutive business days, by the
making of repairs, replacements or additions, other than those made
with Lessee's consent or caused by misuse or neglect by Lessee, or
Lessee's agents, servants, visitors or licensees, there shall be a
proportionate abatement of rent from and after said seventh (7th)
consecutive business day and continuing for the period of such
untenantability. In no event, shall Lessee be entitled to claim a
constructive eviction from the Premises unless Lessee shall first have
notified Lessor in writing of the condition or conditions giving rise
thereto, and, unless Lessor shall have failed, within a reasonable time
after receipt of such notice, to remedy, or commence and proceed with
due diligence to remedy such condition or conditions, all subject to
Force Majeure as hereinafter defined.
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22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
The cost of electric current which is supplied by Lessor for use by
Lessee in the Premises, other than for heating or air conditioning
purposes, shall be reimbursed to Lessor at terms, classification and
rates normally charged by the public utility corporation(s) serving
that part of the municipality where the subject Premises are located.
a. From and after the Rent Commencement Date, Lessee agrees to
pay as Additional Rent, an estimated electrical charge of ten
cents ($.10) per square foot per month, payable on the first
(1st) day of each and every month, until such time as an
electrical survey can be performed pursuant to Section 22(b)
hereof.
b. Lessee agrees that an independent electrical engineering
consultant shall make a survey of electric power demand of the
electric lighting fixtures and the electric equipment of
Lessee used in the Premises to determine the average monthly
electric consumption thereof, and the actual out-of-pocket
reasonable costs of said survey shall be borne by Lessee.
Lessee's reimbursement for the cost of the survey shall not
exceed $500.00. The findings of said consultant as to the
average monthly electric consumption of Lessee shall, unless
objected to by Lessee within forty-five (45) days, be
conclusive and binding on Lessor and Lessee. After Lessor's
consultant has submitted its report, Lessee shall pay to
Lessor, within thirty (30) days after demand therefor by
Lessor, the amount (based on the monthly consumption found by
such consultant) as owing from the Rent Commencement Date, and
the then expired months, to include the then current month and
thereafter adjusted for the estimated electrical charges
already paid pursuant to Section 22(a) hereof, on the first
(1st) day of every month, in advance, the amount set forth as
the monthly consumption in said report. Said amounts shall be
treated as Additional Rent due hereunder. Proportionate sums
shall be payable for periods of less than a full month if the
Rent Commencement Date is on any day other than the first
(1st) day of the month. If Lessee objects to said findings,
Lessee shall nevertheless pay and continue to pay the amount
determined by Lessor's consultant until the issue is finally
resolved, but Lessee may, at its expense, seek the services of
an independent electrical consultant who shall make a survey
as provided above. If Lessor's and Lessee's consultant cannot
agree as to Lessee's consumption within thirty (30) days of
Lessee's consultant's findings either Lessor or Lessee may
request the American Arbitration Association (or successor
thereto) in Morris County, New Jersey to appoint an electrical
engineering consultant whose decision shall be final and
binding on Lessor and Lessee, and whose cost shall be shared
equally. Upon the issue being finally resolved, any
overpayment made by Lessee shall be promptly refunded by
Lessor (such obligation to survive the expiration of earlier
termination of this Lease).
c. In the event that there shall be an increase or decrease in
the rate schedule (including surcharges or demand
adjustments), of the public utility for the supply of Building
Standard Office Electrical Service, or the imposition of any
tax with respect to such service or increase in any such tax
following the Rent Commencement Date, the Additional Rent
payable hereunder shall be adjusted equitably to reflect the
increase or decrease in rate or imposition or increase in the
aforesaid tax. All computations shall be made on the basis of
Lessee's surveyed usage as if a meter exclusively measuring
such usage to the Premises was in place.
d. Lessee covenants that it shall notify Lessor promptly upon the
introduction of any office equipment or lighting materially
different from that on the Premises as of Lessor's electrical
survey or in addition to the aforesaid equipment or lighting
on the Premises as of said survey. The introduction of any new
or different equipment or lighting shall be cause for, at
Lessor's election, a resurveying of the Premises at Lessee's
expense. Lessor reserves the right to inspect the Premises to
insure compliance with this provision. Upon reasonable prior
notice to Lessee, Lessor shall use reasonable efforts to
minimize interference with Lessee's use of the Premises when
performing electrical surveys.
e. Lessor shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a
result of any failure, defect or change in the quantity
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or character of electrical energy available for redistribution
to the Premises pursuant to this Article 22 nor for any
interruption in the supply, and Lessee agrees that such supply
may be interrupted for inspection, repairs and replacement and
in emergencies. In any event, the full measure of Lessor's
liability for any interruption in the supply due to Lessor's
acts or omissions shall be an abatement of Fixed Basic Rent
and Additional Rent, unless Lessor fails to take such measures
as may be reasonable under the circumstances to restore such
service without undue delay. In no event shall Lessor be
liable for any business interruption suffered by Lessee.
f. Lessor, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required
in the Premises. Lessee, however, shall have the right to
furnish and/or install any or all of the items mentioned in
this Section 22(f).
g. Lessee's use of electrical service as contemplated herein
shall be during Building Hours, and any use in excess of said
Building Hours shall result in an adjustment as set forth in
Section 22(a) hereof to reflect such additional consumption.
23. ADDITIONAL RENT:
It is expressly agreed that Lessee will pay in addition to the Fixed
Basic Rent provided in Article 3 hereof, an Additional Rent to cover
Lessee's Percentage as defined in the Preamble, of the increased cost
to Lessor, for each of the categories enumerated herein, over the "Base
Period Costs", as defined in the Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred
for the Building in which the Premises are located and Office
Building Area for any Lease Year or Partial Lease Year during
the Term shall be greater than the Base Operating Costs
(adjusted proportionately for periods less than a Lease Year),
then Lessee shall pay to Lessor, as Additional Rent, Lessee's
Percentage of all such excess Operating Costs. Operating Costs
shall include, by way of illustration and not of limitation:
personal property taxes; management fees in an amount not to
exceed the management fees incurred by comparable owners of
comparable buildings in Morris County, New Jersey; labor,
including all wages and salaries for employees of Lessor at
the grade of Property Manager and below; social security
taxes, and other taxes which may be levied against Lessor upon
such wages and salaries; supplies; repairs and maintenance;
maintenance and service contracts; painting; wall and window
washing; laundry and towel service; tools and equipment (which
are not required to be capitalized for federal income tax
purposes); fire and other insurance excess of customary
insurance costs for comparable buildings by comparable owners
in Morris County, New Jersey; trash removal; lawn care; snow
removal and all other items properly constituting direct
operating costs according to standard accounting practices
(collectively, "Operating Costs"), but not including:
depreciation of Building or equipment; interest; income or
excess profits taxes; costs of maintaining the Lessor's
corporate existence; franchise taxes; ; any expenditures
required to be capitalized for federal income tax purposes,
unless said expenditures are for the purpose of reducing
Operating Costs within the Building and Office Building Area,
or those which under generally applied real estate practice
are expensed or regarded as deferred expenses or are required
under any governmental or quasi-governmental law, statute,
ordinance, rule, order, requirements or regulation hereafter
adopted, in which event the costs thereof shall be included to
the extent hereinafter provided. The Base Operating Costs
shall as be as defined in the Preamble.
Operating Costs shall not include: income, excess profits or
real estate taxes; any amounts paid to an affiliate,
subsidiary or parent company by Lessor to the extent that such
amounts exceed amounts that would be payable to an unrelated
person for similar services or materials; depreciation of the
Building and/or equipment; costs attributable to another
property of Lessor; ground rents; principal or interest
payments on or costs of refinancing any present or future
mortgage; costs incurred with any sale or other transfer of
Lessor's interest; costs of maintaining Lessor's corporate
existence and franchise taxes; brokerage commissions and fees;
attorney's fees and disbursements; advertising and promotion
costs; rent concessions; work allowances and letters and other
similar costs incurred in leasing, renovating,
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redecorating, repairing, altering, painting or otherwise
improving rentable space in the Building for occupancy by
other lessees or in procuring lessees for or relocating
lessees to such space; costs of furnishing overtime or extra
services or providing other benefits to other lessees which
are not available to Lessee or which Lessor is entitled to be
reimbursed by other lessees; costs of enforcing and damages
payable due to violations by Lessor of leases to other
lessees; rent losses and reserves for rent losses; losses or
liabilities resulting directly from gross negligence or
willful misconduct by Lessor or its agents, contractors,
employees or other lessees; fines, penalties, interest and
other costs resulting directly from violations by Lessor or
its agents, contractors, employees or other lessees; and
repairs or rebuilding necessitated by eminent domain or
condemnation, or for which Lessor is reimbursed by insurance
or other lessees.
If any repair, replacement or improvement within the
definition of Operating Costs is capitalized under generally
accepted accounting principles, then (A) the cost of any such
repair, replacement or improvement shall only be included in
Operating Costs if such repair, replacement or improvement (i)
is necessary to comply with any governmental or
quasi-governmental law, statute, ordinance, rule, order,
requirements or regulation, which is enacted or promulgated
after the date hereof, (ii) is reasonably intended to reduce
Operating Costs, or (iii) constitutes a replacement which in
Lessor's reasonable judgment is economically prudent to make
in lieu of repairs, (B) the cost thereof shall be amortized on
a straight-line basis over the useful life of such repair and
(C) there shall be included in Operating Costs in each Lease
Year such portion of the amortization period which occurs
during the Term; provided, however, that all amounts thereof
included in Operating Costs in any Lease Year subsequent to
the year paid shall have added thereto interest (at the rate
equal to two (2) percentage points in excess of the prime rate
as established by Chase Manhattan Bank, or its successor) from
the date Lessor incurred such cost.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION (hereinafter
referred to as "Utility and Energy Costs") -- If the Utility
and Energy Costs, including any fuel surcharges or adjustments
with respect thereto, incurred for water, sewer, gas,
electric, other utilities and heating, ventilating and air
conditioning for the Building, to include all leased and
leasable areas (not separately billed or metered within the
Building) and Common Facilities electric, lighting, water,
sewer and other utilities for the Building and Office Building
Area, for any Lease Year or Partial Lease Year, during the
Term, shall be greater than the Utility and Energy Costs
Expense Stop (adjusted proportionately for periods less than a
Lease Year), then Lessee shall pay to Lessor as Additional
Rent, Lessee's Percentage of all such excess Utility and
Energy Costs. As used in this Article 23, the Utility and
Energy CostsExpense Stop shall be as defined in the Preamble.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building
and Office Building Area at which the Premises are located for
any Lease Year or Partial Lease Year, during the Term, shall
be greater than the Base Real Estate Taxes (adjusted
proportionately for periods less than a Lease Year), then
Lessee shall pay to Lessor as Additional Rent, Lessee's
Percentage as hereinafter defined, of all such excess Real
Estate Taxes.
As used in this Section 23(c), the words and terms which
follow mean and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office Building
Area, including, but not limited to, real estate, city,
county, village, school and transit taxes, or taxes,
assessments, or charges levied, imposed or assessed against
the Building and Office Building Area by any other taxing
authority, whether general or specific, ordinary or
extraordinary, foreseen or unforeseen. Real Estate Taxes shall
be determined as if the Building were the sole asset of
Lessor, and assessments payable in installments shall be
included in Real Estate Taxes for a Lease Year only to the
extent of the installments payable during
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that Lease Year. If due to a future change in the method of
taxation, any franchise, income or profit tax shall be levied
against Lessor in substitution for, or in lieu of, or in
addition to, any tax which would otherwise constitute a Real
Estate Tax, such franchise, income or profit tax shall be
deemed to be a Real Estate Tax for the purposes hereof;
conversely, any additional real estate tax hereafter imposed
in substitution for, or in lieu of, any rent, franchise,
income or profit tax (which is not in substitution for, or in
lieu of, or in addition to, a Real Estate Tax as hereinbefore
provided) shall not be deemed a Real Estate Tax for the
purposes hereof. Real Estate Taxes shall not include
inheritance, estate, gift, succession, excise, unincorporated
business, capital stock, transfer, gains or profit taxes
(except as set forth above). Late charges, interest (except
interest payable with respect to Real Estate Taxes payable in
installments) or penalties shall not be included in Real
Estate Taxes.
Lessor represents that there are currently no special
assessments or abatements or exemptions affecting the Building
or Office Building Area.
d. INSURANCE COST ESCALATION - If the Insurance Costs for the
Building and Office Building Area for any Lease Year or
partial Lease Year during the Term shall be greater than the
Insurance Cost Expense Stop (adjusted proportionately for
periods less than a Lease Year), Lessee shall pay to Lessor as
Additional Rent for each Lease Year or partial Lease Year
commencing from and after the Commencement Date, Lessee's
Percentage of such excess Insurance Costs.
As used in this Section 23(d), the words and terms which
follow mean and include the following:
i. "Insurance Cost Expense Stop" shall be as defined in
the Preamble.
ii. "Insurance Costs" shall mean all fire and other
insurance costs incurred by Lessor in connection with
its operation and maintenance of the Building and
Office Building Area, for any Lease Year or Partial
Lease Year, during the Term.
e. LEASE YEAR -- As used in this Article 23, Lease Year shall
mean a calendar year. Any portion of the Term which is less
than a Lease Year as hereinbefore defined, that is, from the
Commencement Date through the following December 31, and from
the last January 1, falling within the Term to the end of the
Term, shall be deemed a "Partial Lease Year". Any reference in
this Lease to a Lease Year shall, unless the context clearly
indicates otherwise, be deemed to be a reference to a Partial
Lease Year if the period in question involves a Partial Lease
Year.
f. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the
categories referred to above, Lessor shall advise Lessee in
writing of Lessee's Percentage share with respect to each of
the categories as estimated for the next twelve (12) month
period (or proportionate part thereof if the last period prior
to the Lease's expiration is less than twelve (12) months) as
then known to Lessor, and thereafter, Lessee shall pay as
Additional Rent, Lessee's Percentage share of these costs for
the then current period affected by such advice (as the same
may be periodically revised by Lessor (but no more often than
four (4) times per year) as additional costs are incurred) in
equal monthly installments, such new rates being applied to
any months, for which the Fixed Basic Rent shall have already
been paid which are affected by the Operating Cost Escalation
and/or Utility and Energy Cost Escalation and/or Tax
Escalation Costs, as well as the unexpired months of the
current period, the adjustment for the then expired months to
be made at the payment of the next succeeding monthly rental,
all subject to final adjustment at the expiration of each
Lease Year as defined in Section 23(d) (or Partial Lease Year
if the last period prior to the Lease's termination is less
than twelve (12) months). However, Lessor shall be reimbursed
by Lessee monthly during the first year of the Term for
additional Utility and Energy Cost Escalations resulting from
an increase in the monthly rate over the Base Utility Rate.
For the purposes of this Lease, the Base Utility Rate shall
mean the utility rates currently charged by the public utility
serving that part of the municipality where the Building is
located and applicable utility providers.
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In the event the last period prior to the Lease's termination
is less than twelve (12) months, the Base Period Costs during
said period shall be proportionately reduced to correspond to
the duration of said final period.
g. BOOKS AND REPORTS -- For the protection of Lessee, Lessor
shall maintain books of account which shall be open to Lessee
and its representatives at all reasonable times so that Lessee
can determine that such Operating, Utility and Energy and Real
Estate Tax Costs have, in fact, been paid or incurred.
Lessee's representatives shall mean only (i) Lessee's
employees or (ii) a Certified Public Accounting firm, and
neither Lessee's employees nor any Certified Public Accounting
firm shall be permitted to (1) perform such inspection and/or
audit on a contingency basis, or (2) perform such an
inspection and/or audit for any other lessee in the Building.
At Lessor's request, Lessee shall execute a confidentiality
agreement reasonably acceptable to Lessor prior to any
examination of Lessor's books and records. In the event Lessee
disputes any one or more of said charges, Lessee shall attempt
to resolve such dispute with Lessor, provided that if such
dispute shall not be satisfactorily settled between Lessor and
Lessee, the dispute shall be referred by either party to an
independent certified public accountant to be mutually agreed
upon, and if such an accountant cannot be agreed upon, The
American Arbitration Association (or successor thereto) may be
asked by either party to select an arbitrator, whose decision
of the dispute will be final and binding upon both parties,
who shall jointly share any cost of such arbitration. Pending
resolution of said dispute, Lessee shall pay to Lessor the sum
so billed by Lessor under protest and without prejudice
subject to its ultimate resolution as aforesaid. If, based
upon Lessee's inspection, it is determined (either by
agreement of the parties or by a final unappealable
arbitration award) that based upon Lessor's books and records
for Operating Costs for any Lease Year, the sums paid by
Lessee hereunder in such Lease Year exceeded Lessee's actual
Operating Costs for such Lease Year by more than six percent
(6%), then Lessor will reimburse Tenant for the reasonable
costs it incurred to outside, independent auditors to conduct
such inspection. Such reimbursement shall be made within
thirty (30) days after demand based upon reasonable
substantiation by Lessee of such costs. If Lessee is entitled
to a refund on account of any overpayment, then, at Lessor's
option, the overpayment shall be either refunded directly to
Lessee or applied against future payment(s) of Additional
Rent. Lessor's obligation to reimburse Lessee hereunder shall
survive the expiration or earlier termination of this Lease
for a period of six (6) months.
h. RIGHT OF REVIEW -- Once Lessor shall have finally determined
said Operating, Utility and Energy or Real Estate Tax Costs at
the expiration of a Lease Year, then as to the item so
established, Lessee shall only be entitled to dispute said
charge as finally established for a period of nine (9) months
after such charge is finally established, and Lessee
specifically waives any right to dispute any such charge at
the expiration of said nine (9) month period.
i. OCCUPANCY ADJUSTMENT -- If, with respect to Operating Cost
Escalation, as established in Section 23(a) hereof, and
Utility and Energy Cost Escalation, as established in Section
23(b) hereof, the Building is less than ninety-five percent
(95%) occupied during the establishment of the respective Base
Periods, then the Base Costs incurred with respect to said
Operating Cost or Utility and Energy Cost shall be adjusted
during any such period within the Base Period so as to reflect
ninety-five percent (95%) occupancy. Similarly, if during any
Lease Year or Partial Lease Year, subsequent to the Base
Period the Building is less than ninety-five percent (95%)
occupied, then the actual costs incurred for Operating Cost
and Utility and Energy Cost shall be increased during any such
period to reflect ninety-five percent (95%) occupancy so that
at all times after the Base Period the Operating Cost or
Utility and Energy Cost shall be actual costs, but in the
event less than ninety-five percent (95%) of the Building is
occupied during all or part of the Lease Year involved, the
Operating Cost or Utility and Energy Cost shall not be less
than that which would have been incurred had ninety-five
percent (95%) of the Building been occupied. The aforesaid
adjustment shall only be made with respect to those items that
are in fact affected by variations in occupancy levels.
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24. LESSEE'S ESTOPPEL:
Lessee shall, from time to time, on not less that ten (10) business
days prior written request by Lessor, execute, acknowledge and deliver
to Lessor a written statement certifying that this Lease is unmodified
and in full force and effect, or that this Lease is in full force and
effect as modified and listing the instruments of modification; the
dates to which the rents and charges have been paid; and, to the best
of Lessee's knowledge, whether or not Lessor is in default hereunder,
and if so, specifying the nature of the default. It is intended that
any such statement delivered pursuant to this Article 24 may be relied
on by a prospective purchaser of Lessor's interest or mortgagee of
Lessor's interest or assignee of any mortgage of Lessor's interest.
Lessee shall also execute and deliver the form "Lessee Estoppel
Certificate" attached hereto and made a part hereof as Exhibit F. Upon
Lessee's request, Lessor shall deliver an estoppel certificate to
Lessee certifying the foregoing, mutatis mutandis.
25. HOLDOVER TENANCY:
If Lessee holds possession of the Premises after the Expiration Date of
this Lease, Lessee shall: (i) become a lessee from month - to-month
under the provisions herein provided, but at one hundred and fifty
percent (150%) of the monthly Fixed Basic Rental, which was payable for
the last month of the Term, plus the Additional Rent, for the first two
(2) months of Lessee's holding over and two hundred percent (200%) of
the monthly Fixed Basic Rent, which was payable for the last month of
the Term, plus the Additional Rent, thereafter, which shall continue as
provided in this Lease and which sum shall be payable in advance on the
first (1st) day of each month, and without the requirement for demand
or notice by Lessor to Lessee demanding delivery of possession of said
Premises, and such tenancy shall continue until terminated by Lessor,
or until Lessee shall have given to Lessor, at least thirty (30) days
prior to the intended date of termination, a written notice of intent
to terminate such tenancy, which termination date must be as of the end
of a calendar month; and (ii) indemnify Lessor against loss or
liability resulting from the delay by Lessee in so surrendering the
Premises, including, without limitation, any claims made by any
succeeding occupant founded on such delay, provided Lessor notifies
Lessee thereof. Lessee's obligations under this Section shall survive
the expiration or sooner termination of the Lease. The time limitations
described in this Article 25 shall not be subject to extension for
Force Majeure.
26. RIGHT TO SHOW PREMISES:
Lessor may show the Premises to prospective purchasers and mortgagees,
and during the nine (9) months prior to termination of this Lease, to
prospective lessees, during Building Hours on reasonable notice to
Lessee. In connection with the foregoing, Lessor shall endeavor to
minimize interference with Lessee's use of the Premises.
Except in case of emergency, Lessor shall be accompanied by a
representative of Lessee when entering the Premises, provided that
Lessee shall make such representative available to Lessor, upon
reasonable notice (which notice may be oral) to Lessee. Except in the
case of an emergency, upon Lessee's request and prior to Lessor's entry
into the Premises, Lessor shall execute a confidentiality agreement in
the form attached hereto and made a part hereof as Exhibit J. Lessor
shall endeavor to cause its agents or contractors to execute such
confidentiality agreement prior to entry into the Premises; provided,
however, Lessor shall have no liability for its failure to obtain same
and such agents and contractors shall nevertheless have access to the
Premises, subject to the provisions hereof.
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
a. Lessor agrees that, prior to the commencement of the Term of
this Lease, it will do all of the work in the Premises in
accordance with Exhibit C attached hereto and made a part
hereof.
b. Lessee will timely supply such drawings and information to
Lessor as set forth in Exhibit C. Any delay occasioned by
Lessee's failure to timely supply such drawings and
information shall not delay the Commencement Date of the Term
and Lessee's
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obligations hereunder, and the same shall commence on the date
the Premises would have been delivered to Lessee pursuant to
Article 2 hereof, but for Lessee's delay.
c. Lease commencement shall occur and the Commencement Date is
defined as that date when Lessor has done substantially all of
the work to be done by Lessor in accordance with Exhibit C,
unless Lessor has been precluded from completing said work as
a result of Lessee's acts or omissions including, but not
limited to, its failure to comply with Section 27(b) hereof.
Occupancy by Lessee or the delivery of a Certificate of
Occupancy by Lessor (if required pursuant to local law) shall
be prima facie evidence that Lessor has done substantially all
of the work.
28. WAIVER OF TRIAL BY JURY:
To the extent such waiver is permitted by law, the parties waive trial
by jury in any action or proceeding brought in connection with this
Lease or the Premises.
29. LATE CHARGE:
Anything in this Lease to the contrary notwithstanding, at Lessor's
option, Lessee shall pay a "Late Charge" of eight percent (8%) of any
installment of Fixed Basic Rent or Additional Rent paid more than five
(5) business days after the due date thereof, to cover the extra
expense involved in handling delinquent payments, said Late Charge to
be considered Additional Rent. The amount of the Late Charge to be paid
by Lessee shall be reassessed and added to Lessee's obligations for
each successive monthly period until paid. Notwithstanding anything in
this Section to the contrary, Lessor shall waive a Late Charge one time
during each Lease Year; provided, however, the installment of Fixed
Basic Rent or Additional Rent so due is paid by the fifteenth (15th)
day of the month. Payment received subsequent to the fifteenth (15th)
of the month during these grace periods shall require a Late Charge to
be reassessed and added to Lessee's obligations hereunder.
30. LESSEE'S INSURANCE:
a. i Lessee covenants to provide at Lessee's cost and
expense on or before the earlier of: (i) the Commencement
Date; or (ii) Lessee's taking actual possession for the
purpose of completing any improvement work, and to keep in
full force and effect during the entire Term and so long
thereafter as Lessee, or anyone claiming by, through or under
Lessee, shall occupy the Premises, insurance coverage as
follows:
ii. Commercial General Liability insurance with
contractual liability endorsements with respect to
the Premises and the business of Lessee in which
Lessee shall be adequately covered under limits of
liability of not less than THREE MILLION AND 00/100
DOLLARS ($3,000,000.00) combined single limit per
occurrence for bodily or personal injury (including
death) and property damage. Such insurance may be
carried: (x) under a blanket policy covering the
Premises and other locations of Lessee, if any,
provided that each such policy shall in all respects
comply with this Article and shall specify that the
portion of the total coverage of such policy that is
allocated to the Premises is in the amounts required
pursuant to this Article 30; and (y) under a primary
liability policy of not less than ONE MILLION AND
00/100 DOLLARS ($1,000,000.00) and the balance under
an umbrella policy. Notwithstanding anything to the
contrary contained in this Lease, the carrying of
insurance by Lessee in compliance with this Article
30 shall not modify, reduce, limit or impair Lessee's
obligations and liability under Article 33 hereof.
iii. Fire and Extended Coverage, Vandalism, Malicious
Mischief, Sprinkler Leakage and Special Extended
Coverage Insurance in an amount adequate to cover the
cost of replacement of all personal property,
decorations, trade fixtures, furnishings, equipment
in the Premises and all contents therein. Lessor
shall not be liable for any damage to such property
of Lessee by fire or other peril includable in the
coverage afforded by the standard form of fire
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insurance policy with extended coverage endorsement
attached (whether or not such coverage is in effect),
no matter how caused, it being understood that the
Lessee will look solely to its insurer for
reimbursement. Lessee, at its option, may self-insure
for the coverages set forth in this subparagraph
(ii).
iiii. Worker's Compensation Insurance in the minimum
statutory amount covering all persons employed by
Lessee.
iv. Said limits shall be subject to periodic review and
Lessor reserves the right to increase said coverage
limits if, in the reasonable opinion of Lessor, said
coverage becomes inadequate and is less than that
commonly maintained by lessees in similar buildings
in the area by lessees making similar uses. On or
before the Commencement Date, and thereafter at
Lessor's request, Lessee shall provide Lessor
evidence of the insurance coverage required herein in
the form of an insurance binder (countersigned by the
insurer), or evidence of insurance (in form ACORD
25-S with respect to liability insurance) for each of
the insurance policies Lessee is required to carry in
compliance with its obligations under this Lease.
b. All of the aforesaid insurance shall: (i) name Lessor as an
additional insured; (ii) be written by one or more responsible
insurance companies licensed in the State of New Jersey
reasonably satisfactory to Lessor and in form reasonably
satisfactory to Lessor; (iii) contain endorsements
substantially as follows: "It is understood and agreed that
the insurer will give to Lessor, or any successor lessor, c/o
Mack-Cali Realty Corporation, 11 Commerce Drive, Cranford, New
Jersey, twenty (20) days prior written notice of any material
change in or cancellation of this policy."; (iv) shall be
written on an "occurrence" basis and not on a "claims made"
basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any
premium for such insurance. Lessee shall deliver to Lessor at
least fifteen (15) days prior to the expiration of such
policy, a certificate; it being the intention of the parties
hereto that the insurance required under the terms hereof
shall be continuous during the entire Term of this Lease and
any other period of time during which pursuant to the Term
hereof, said insurance is required. Any insurance carried by
Lessee shall be in excess of and will not contribute with the
insurance carried by Lessor for injuries or damage arising out
of the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection
Association (NFPA) National Fire Code. If, at any time or from
time to time, as a result of or in connection with any failure
by Lessee to comply with the foregoing sentence or any act or
omission or commission by Lessee, its employees, agents,
contractors or licensees, or a result of or in connection with
the use to which the Premises are put (notwithstanding that
such use may be for the purposes hereinbefore permitted or
that such use may have been consented to by Lessor), the fire
insurance rate(s) applicable to the Premises shall be higher
than that which would be applicable for a business office
legally permitted therein, Lessee agrees that it will pay to
Lessor as Additional Rent, such portion of the premiums for
all Lessor's fire insurance policies in force with respect to
the Building and the contents of any occupant thereof as shall
be attributable to such higher rate(s).
e. Lessor makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of
this Lease are adequate to protect Lessee against Lessee's
undertaking under this Article 30, and in the event Lessee
believes that any such insurance coverage called for under
this Lease is insufficient, Lessee shall provide, at is own
expense, such additional insurance as Lessee deems adequate.
f. In the event the Premises or its contents are damaged or
destroyed by fire or other insured casualty: (i) Lessor, to
the extent of the coverage of Lessor's policies of fire
insurance, hereby waives its rights, if any, against Lessee
with respect to such damage or destruction, even if said fire
or other casualty shall have been caused, in whole or in part,
by the negligence of Lessee; and (ii) Lessee, to the extent of
the coverage of Lessee's policies of fire insurance with
extended coverage, hereby
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waives its rights, if any, against Lessor with respect to such
damage, or destruction, even if said fire or other casualty
shall have been caused, in whole or in part, by the negligence
of Lessor; provided, however, such waivers of subrogation
shall only be effective with respect to loss or damage
occurring during such time as Lessor's or Lessee's policies of
fire insurance (as the case may be) shall contain a clause or
endorsement providing in substance that the aforesaid waiver
of subrogation shall not prejudice the type and amount of
coverage under such policies or the right of Lessor or Lessee
(as the case may be) to recover thereunder. If, at any time,
Lessor's or Lessee's insurance carrier refuses to write
insurance which contains a consent to the foregoing waiver of
subrogation, Lessor or Lessee, as the case may be, shall
notify the party thereof in writing, and upon the giving of
such notice, the provisions of this Section shall be null and
void as to any casualty which occurs after such notice. If
Lessor's or Lessee's insurance carrier shall make a charge for
the incorporation of the aforesaid waiver of subrogation in
its policies, then the party requesting the waiver shall
promptly pay such charge to the other party upon demand. In
the event the party requesting their waiver fails to pay such
charge upon demand, the other party shall be released of its
obligation to supply such waiver.
g. Should Lessee fail to maintain the insurance coverage as set
forth in this Article 30, then Lessee shall be in default
hereunder and shall be deemed to have breached its covenants
as set forth herein.
31. NO OTHER REPRESENTATIONS:
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s).
32. QUIET ENJOYMENT:
Lessor covenants that if, and so long as, Lessee pays Fixed Basic Rent
and any Additional Rent as herein provided, and performs Lessee's
covenants hereof, Lessor shall do nothing to affect Lessee's right to
peaceably and quietly have, hold and enjoy the Premises for the Term
herein mentioned, subject to the provisions of this Lease.
33. INDEMNITY:
Lessee shall defend, indemnify and save harmless Lessor and its agents
against and from: (a) any and all claims (i) arising from (x) the
conduct or management by Lessee, its sublessees, licensees, its or
their employees, agents, contractors or invitees on the Premises or of
any business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor for Lessor's or Lessee's
account) in or about the Premises by Lessee during the Term of this
Lease, or during the period of time, if any, prior to the Commencement
Date that Lessee may have been given access to the Premises, or (z) any
default by Lessee under the terms, covenants and conditions of this
Lease, or (ii) arising from any negligent or otherwise wrongful act or
omission of Lessee or any of its sublessees or licensees or its or
their employees, agents, contractors or invitees; and (b) all costs,
expenses and liabilities, including reasonable attorney's fees and
disbursements incurred in or in connection with each such claim, action
or proceeding brought thereon. In case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee, upon notice
from Lessor, shall resist and defend such action or proceeding.
Lessor shall indemnify, defend and save harmless Lessee and Lessee's
shareholders, officers, directors, employees, agents and contractors
(collectively, "Lessee Indemnitees") from and against: (a) any and all
claims of whatever nature against Lessee and/or Lessee Indemnitees
arising from (i) any accident, injury or damage occurring within the
Office Building Area or the Building but outside of the Premises where
such accident, injury or damage results from the negligent or otherwise
wrongful act or omission of Lessor, its agents, employees or
contractors, or (ii) any default by Lessor in the performance of
Lessor's obligations under this Lease; and (b) all costs, expenses and
liabilities, including reasonable attorney's fees and
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disbursements incurred in or in connection with each such claim,
action, or proceeding brought thereon. In case any action or proceeding
be brought against Lessee by reason of such claim, Lessor, upon notice
from Lessee, shall request or defend such action or proceeding.
34. ARTICLE HEADINGS:
The article headings in this Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration
in any construction or interpretation of this Lease or any of its
provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS:
The provisions of this Lease shall apply to, bind and inure to the
benefit of Lessor and Lessee, and their respective heirs, successors,
legal representatives and assigns. It is understood that the term
"Lessor" as used in this Lease means only the owner, a mortgagee in
possession or a term lessee of the Building, so that in the event of
any sale of the Building or of any lease thereof, or if a mortgagee
shall take possession of the Premises, Lessor herein shall be and
hereby is entirely freed and relieved of all covenants and obligations
of Lessor hereunder accruing thereafter, and it shall be deemed without
further agreement that the purchaser, the term lessee of the Building,
or the mortgagee in possession has assumed and agreed to carry out any
and all covenants and obligations of Lessor hereunder.
36. OUTSIDE PARKING SPACES:
Lessee's occupancy of the Premises shall include the use of the number
of outside parking spaces as set forth in the Preamble. Lessor shall
not be responsible for any damage or theft of any vehicle in the
parking area and shall not be required to keep parking spaces clear of
unauthorized vehicles or to otherwise supervise the use of the parking
area. Lessee shall, upon request, promptly furnish to Lessor the
license numbers of the cars operated by Lessee and its sublessees,
licensees, invitees, concessionaires, officers and employees. If any
vehicle of Lessee, or of any sublessee, licensee, concessionaire, or of
their respective officers, agents or employees, is parked in any part
of the Common Facilities other than the employee parking area(s)
designated therefor by Lessor, Lessee shall pay to Lessor such
reasonable penalty as may be fixed by Lessor from time to time. All
amounts due under the provisions of this Article 36 shall be deemed to
be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:
Lessor shall not be liable for any loss of property from any cause
whatsoever, including, but not limited to, theft or burglary from the
Premises, and any such loss arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions in
the construction or design of the Premises and/or the Building,
including the structural and non-structural portions thereof, and
Lessee covenants and agrees to make no claim for any such loss at any
time.
38. PARTIAL INVALIDITY:
If any of the provisions of this Lease, or the application thereof to
any person or circumstances, shall to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such
provision or provisions to persons or circumstances other than those as
to whom or which it is held invalid or unenforceable, shall not be
affected thereby, and every provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
39. LESSEE'S BROKER:
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Lessor and Lessee each represents and warrants to the other that
Lessee's Broker (as defined in the Preamble), is the sole broker with
whom each party has negotiated in bringing about this Lease (whose
commission Lessor shall pay pursuant to a separate agreement), and
Lessor and Lessee each agrees to indemnify and hold the other and
Lessor's mortgagee(s) harmless from any and all claims of other brokers
and expenses in connection therewith arising out of or in connection
with the negotiation of or the entering into this Lease by Lessor and
Lessee. In no event shall Lessor's mortgagee(s) have any obligation to
any broker involved in this transaction.
40. PERSONAL LIABILITY:
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessor, that there
shall be absolutely no personal liability on the part of Lessor, its
constituent members (to include, but not be limited to, officers,
directors, partners and trustees), their respective successors, assigns
or any mortgagee in possession (for the purposes of this Article,
collectively, "Lessor"), with respect to any of the terms, covenants
and conditions of this Lease, and that Lessee shall look solely to the
"equity of Lessor in the Building and the Office Building Area" (as
hereinafter defined), for the satisfaction of each and every remedy of
Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exceptions
whatsoever.
For purposes of the preceding sentence, "equity of Lessor in the
Building and the Office Building Area" shall be deemed to include: (i)
all rents, issues and profits received by Lessor (but only to the
extent such rents, issues and profits are not used to pay Operating
Costs of, or debt service (including principal and interest) on, the
Building and the Office Building Area); (ii) "net proceeds of sale" (as
hereinafter defined); and (iii) proceeds of fire and extended coverage
insurance or condemnation awards received by Lessor (to the extent in
excess of any restoration costs and net of all costs of obtaining such
proceeds or awards), provided, in each case that Lessee (A) shall have
delivered a notice to Lessor asserting a claim for a breach of Lessor's
obligations under this Lease prior to the receipt by Lessor of such
rent or other consideration, proceeds or awards, (B) shall have
commenced an appropriate proceeding against Lessor asserting such
breach within six (6) months after the date such notice was delivered
to Lessor and (C) shall have obtained a final non-appealable judgment
against Lessor, and Lessee shall have the right to look to such rent,
consideration, proceeds or awards only as to the subject matter of such
action. "Net proceeds of sale" means the proceeds received by the
transferor Lessor from the sale of the Building after payment of all
costs of sale and all indebtedness on the Building.
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessee, that there
shall be absolutely no personal liability on the part of Lessee's
constituent members (including, but not limited to, officers,
directors, partners and trustees) and their respective successors
and/or assigns.
41. NO OPTION:
The submission of this Lease for examination does not constitute a
reservation of, or option for, the Premises, and this Lease becomes
effective as a lease only upon execution and delivery thereof by Lessor
and Lessee.
42. DEFINITIONS:
a. AFFILIATE - as defined in Section 8(c) hereof.
b. COMMON FACILITIES -- Common Facilities shall mean the
non-assigned parking areas; lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building
facilities that service all Building lessees; air conditioning
rooms; fan rooms; janitors' closets; electrical closets;
telephone closets; elevator shafts and
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machine rooms; flues; stacks; pipe shafts and vertical ducts
with their enclosing walls. Lessor may at any time close
temporarily any Common Facilities to make repairs or changes
therein or to effect construction, repairs or changes within
the Building, or to discourage non-lessee parking, and may do
such other acts in and to the Common Facilities as in its
reasonable judgement may be desirable to improve the
convenience thereof, but shall always in connection therewith,
endeavor to minimize any inconvenience to Lessee and provide
comparable access and visibility.
c. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by
way of example and not by way of limitation: acts of God;
accidents; repairs; strikes; shortages of labor, supplies or
materials; inclement weather; or, where applicable, the
passage of time while waiting for an adjustment or insurance
proceeds. Any time limits required to be met by either party
hereunder, whether specifically made subject to Force Majeure
or not, except those related to the payment of Fixed Basic
Rent or Additional Rent, shall, unless specifically stated to
the contrary elsewhere in this Lease, be automatically
extended by the number of days by which any performance called
for is delayed due to Force Majeure.
d. LESSEE'S PERCENTAGE -- The parties agree that Lessee's
Percentage, as defined in the Preamble, reflects and will be
continually adjusted to reflect the ratio of the gross square
feet of the area rented to Lessee (including an allocable
share of all Common Facilities) [the numerator] as compared
with the total number of gross square feet of the entire
Building (or additional buildings that may be constructed
within the Office Building Area) [the denominator] measured
outside wall to outside wall, but excluding therefrom any
storage areas. Lessor shall have the right to make changes or
revisions in the Common Facilities of the Building so as to
provide additional leasing area. Lessor shall also have the
right to construct additional buildings in the Office Building
Area for such purposes as Lessor may deem appropriate, and
subdivide the lands for that purpose, if necessary, and upon
so doing, the Office Building Area shall become the subdivided
lot on which the Building in which the Premises is located.
However, if any service provided for in Section 23(a) hereof
or any utility provided for in Section 23(b) hereof is
separately billed or separately metered within the Building,
then the square footage so billed or metered shall be
subtracted from the denominator and Lessee's proportionate
share for such service and/or utility shall be separately
computed, and the Base Costs for such item shall not include
any charges attributable to said square footage.
43. LEASE COMMENCEMENT:
Notwithstanding anything contained herein to the contrary, if Lessor,
for any reason whatsoever, including Lessor's negligence (but excluding
Lessee's delay as provided for in Section 27(b) hereof), cannot deliver
possession of the Premises, as provided for in Section 27(a) hereof, to
Lessee on the Commencement Date as set forth in Article 2 hereof, this
Lease shall not be void or voidable, nor shall Lessor be liable to
Lessee for any loss or damage resulting therefrom, but in that event,
the Term shall be for the full term as specified above to commence from
and after the date Lessor shall have delivered possession of the
Premises to Lessee, as provided in Section 27(a) hereof, or from the
date Lessor would have delivered possession of the Premises to Lessee
but for Lessee's failure to timely supply to Lessor such drawings
and/or information required by Exhibit C or for any other reason
attributable to Lessee, and if requested by Lessor or Lessee, Lessor
and Lessee shall, ratify and confirm said Commencement Date and
Expiration Date by completing and signing Exhibit G attached hereto and
made a part hereof.
Notwithstanding anything contained herein to the contrary, if Lessor
shall not have delivered possession of the Premises to Lessee on or
before January 1, 2004 ("Penalty Date") and provided the reason
therefor has not been as a result of Lessee's acts or omissions or
Force Majeure, then, and in such event, Lessee's obligation to pay
Fixed Basic Rent and Additional Rent shall commence on such number of
days after the first (1st) month anniversary of the Commencement Date
as shall be equal to the number of days between the Penalty Date and
the Commencement Date. If Lessee fails to execute and deliver this
Lease to Lessor on or before October 21, 2003, for reasons other than
any act and/or omission of Lessor, then the
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Penalty Date set forth above shall be such number of days after January
1, 2004 as shall be equal to the number of days between October 21,
2003 and the date Lessee shall execute this Lease and deliver the same
to Lessor.
44. NOTICES:
Any notice by either party to the other shall be in writing and shall
be deemed to have been duly given only if: (i) delivered personally; or
(ii) sent by registered mail or certified mail, return receipt
requested, with postage prepaid; or (iii) sent by nationally recognized
overnight delivery service, with a receipt provided therefor and
charges prepaid, addressed: (a) if to Lessee, at the above described
Building, Attention: Mr. Kenneth I. Moch, President and Chief Executive
Officer, with a copy to Jan Alan Lewis, Esq., Cole, Schotz, Meisel,
Forman & Leonard, P.A., Court Plaza North, 25 Main Street, P.O. Box
800, Hackensack, New Jersey 07602-0800; and (b) if to Lessor, at
Lessor's address as set forth above, or, to either at such other
address as Lessee or Lessor, respectively, may designate in writing.
Notices shall be deemed to have been duly given, if delivered
personally, on delivery thereof, if mailed, upon receipt or rejection
of receipt, or if sent by overnight delivery service, the next business
day.
45. ACCORD AND SATISFACTION:
No payment by Lessee or receipt by Lessor of a lesser amount than the
rent and Additional Rent payable hereunder shall be deemed to be other
than a payment on account of the earliest stipulated Fixed Basic Rent
and Additional Rent, nor shall any endorsement or statement on any
check or any letter accompanying any check or payment for Fixed Basic
Rent or Additional Rent be deemed an accord and satisfaction, and
Lessor may accept such check or payment without prejudice to Lessor's
right to recover the balance of such Fixed Basic Rent and Additional
Rent or pursue any other remedy provided herein or by law.
46. EFFECT OF WAIVERS:
No failure by Lessor or Lessee to insist upon the strict performance of
any covenant, agreement, term or condition of this Lease, or to
exercise any right or remedy consequent upon a breach thereof, and no
acceptance of full or partial rent during the continuance of any such
breach, shall constitute a waiver of any such breach or of such
covenant, agreement, term or condition. No consent or waiver, express
or implied, by Lessor or Lessee to or of any breach of any covenant,
condition or duty of Lessor or Lessee shall be construed as a consent
or waiver to or of any other breach of the same or any other covenant,
condition or duty, unless in writing signed by Lessor or Lessee, as the
case may be.
47. LEASE CONDITION:
Intentionally Omitted.
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:
Lessee agrees to give any mortgagees and/or trust deed holders, by
notice, a copy of any notice of default served upon Lessor, provided
that, prior to such notice, Lessee has been notified in writing (by way
of notice of assignment of rents and leases or otherwise) of the
address of such mortgagees and/or trust deed holders. Lessee further
agrees that, if Lessor shall have failed to cure such default within
the time provided for in this Lease, then the mortgagees and/or trust
deed holders shall have an additional thirty (30) days within which to
cure such default, or if such default cannot be cured within that time,
then such additional time as may be reasonably necessary, if within
such thirty (30) days, any mortgagee and/or trust deed holder has
commenced and is diligently pursuing the remedies necessary to cure
such default (including, but not limited to, commencement of
foreclosure proceedings if necessary to effect such cure), in which
event this Lease shall not be terminated while such remedies are being
so diligently pursued.
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49. LESSOR'S RESERVED RIGHT:
Lessor and Lessee acknowledge that the Premises are in a Building which
is not open to the general public. Access to the Building is restricted
to Lessor, Lessee, their agents, employees and contractors and to their
invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities directed at Lessee
or any other lessee, Lessor reserves the right unilaterally to alter
Lessee's ingress and egress to the Building or make any change in
operating conditions to restrict pedestrian, vehicular or delivery
ingress and egress to a particular location, but to the extent
permitted by law, Lessor shall always provide a reasonable means of
access to and from the Premises and shall endeavor in connection
therewith to minimize any inconvenience to Lessee.
50. CORPORATE AUTHORITY:
If Lessee is a corporation, Lessee represents and warrants that this
Lease has been duly authorized and approved by the corporation's Board
of Directors. The undersigned officers and representatives of the
corporation represent and warrant that they are officers of the
corporation with authority to execute this Lease on behalf of the
corporation.
The undersigned officer, partner, manager or other representative of
the entity executing this Lease on behalf of Lessor represents and
warrants to Lessee that he or she is an officer, partner, manager or
other representative of the entity with authority to execute this Lease
on behalf of Lessor.
51. AFTER-HOURS USE:
Lessee shall be entitled to make use of Building Standard Electric
Service and HVAC beyond the Building Hours, at Lessee's sole cost and
expense, provided Lessee shall notify Lessor telephonically or in
person or in writing, by 3:00 p.m. on the day that Lessee shall require
said overtime use if said overtime use is required on any weekday, and
by 3:00 p.m. on Friday for Saturday and/or Sunday overtime use. It is
understood and agreed that Lessee shall pay the sum of SIXTY AND 00/100
DOLLARS ($60.00) per hour per zone for air-conditioning service and
FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour per zone for heating
services, plus such additional percentage increase of the aforesaid
hourly sum computed by measuring the percentage increase between the
rate in effect (including fuel surcharges or adjustments) during the
month for which such overtime use is requested and the Base Rate. The
Base Rate for purposes hereof shall be the average of the rates in
effect (including surcharges and/or adjustments) during Calendar Year
2004. If Lessee and any other lessee(s) in the Building within the same
heating or air conditioning zone request overtime heating or air
conditioning service, the overtime charges set forth herein shall be
reasonably apportioned.
In no event shall Lessee pay less than the sum of SIXTY AND 00/100
DOLLARS ($60.00) per hour per zone for such overtime air-conditioning
service or less than FORTY-FIVE AND 00/100 DOLLARS ($45.00) per hour
per zone for such overtime heating service.
52. LESSEE'S EXPANSION/RELOCATION:
Lessor, in its sole discretion, shall have the right, one (1) time
during the Term, to change the location of the Premises to other
comparable space (i.e., visibility, access, dimensions and layout) (the
"Substituted Leased Premises") within the Building (other than the
first (1st) floor), subject to the terms and conditions set forth
below.
a. The Substituted Leased Premises shall contain a minimum floor
area of not less than the number of square feet as are
contained in the Premises; and the square footage of any
Common Facilities attributable to the Substituted Leased
Premises shall be not less than that of the Common Facilities
attributable to the Premises.
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b. If the total square footage comprised by the Substituted
Leased Premises and its attributable Common Facilities exceed
the total of the Premises and its attributable Common
Facilities, Lessee shall not be required to pay any increase
in the Fixed Basic Rent and Lessee's Percentage shall not be
increased.
c. Lessor shall give Lessee not less than forty-five (45) days'
prior notice of Lessor's decision to relocate Lessee, and
Lessee agrees that no later than forty-five (45) days from the
date of its receipt of such notice it shall relocate to the
Substituted Leased Premises, provided that Lessor has
substantially completed any work in the Substituted Leased
Premises as required herein.
d. Lessor shall bear and pay for the cost and expense of any such
relocation; provided, however, that Lessee shall not be
entitled to any compensation for damages for any interference
with or interruption of its business during or resulting from
such relocation. Lessor shall make reasonable efforts to
minimize such interference.
e. In connection with any such relocation, Lessor shall, at its
own cost and expense, furnish and install in (or, if
practicable, relocate to) the Substituted Leased Premises all
walls, partitions, floors, floor coverings, ceilings,
fixtures, wiring and plumbing, if any (as distinguished from
trade fixtures, equipment, furniture, furnishings and other
personal property belonging to Lessee), required for Lessee's
proper use and occupancy thereof, all of which items shall be
comparable in quality to those situated in the Premises.
f. The payments of the monthly Fixed Basic Rent shall commence on
the earlier of ten (10) days after Lessor has completed the
physical relocation and installation of permanent improvements
in the Substituted Leased Premises or the date that Lessee
first opens for business in the Substituted Leased Premises.
g. Lessor and Lessee shall promptly execute an amendment to this
Lease reciting the relocation of the Premises and any changes
as a result thereof.
53. BUILDING PERMIT:
This Lease is expressly conditioned upon Lessor obtaining a building
permit from the appropriate government official for Lessee's Premises.
Lessor hereby agrees to make application to said government official
within five (5) days following the execution of the construction
drawings for the Premises. As used herein, construction drawings shall
mean the final plans and specifications required pursuant to Section
27(b) hereof.
54. OPTION TO RENEW:
(a) If this Lease shall then be in full force and effect and
Lessee is not in monetary default or material nonmonetary
default under this Lease, after the expiration of applicable
notice and cure periods, Lessee shall have the option to
extend the Term of this Lease for a period of three (3) years
("Renewal Term") commencing on the day immediately following
the Expiration Date; provided, however, that Lessee shall give
Lessor notice of its election to extend the Term no later than
nine (9) months prior to the Expiration Date. TIME BEING OF
THE ESSENCE in connection with the exercise of Lessee's option
pursuant to this Article.
(b) Such extension of the Term of this Lease shall be upon the
same covenants and conditions, as herein set forth, except for
the Fixed Basic Rent (which shall be determined in the manner
set forth below) and except that the Base Period Costs shall
be the calendar year during which the commencement of the
Renewal Term occurs and Lessee shall have no further right to
extend the Term of this Lease after the exercise of the single
option described in paragraph (a) of this Section. If Lessee
shall duly give notice of its election to extend the Term of
this Lease, the Renewal Term shall be added to and become a
part of the Term of this Lease (but shall not be considered a
part of the initial Term), and any reference in this Lease to
the "Term of this Lease", the "Term hereof", or any similar
expression shall be deemed to include such Renewal Term, and,
in addition, the term "Expiration Date" shall thereafter mean
the last day of such Renewal Term. Lessor shall have no
obligation to perform any alteration or
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preparatory or other work in and to the Premises and Lessee
shall continue possession thereof in its "as is" condition.
(c) If Lessee exercises its option for the Renewal Term, the Fixed
Basic Rent during the Renewal Term shall be the fair market
rent for the Premises, as hereinafter defined.
(d) Lessor and Lessee shall use their reasonable efforts, within
thirty (30) days after Lessor receives Lessee's notice of its
election to extend the Term of this Lease for the Renewal Term
("Negotiation Period"), to agree upon the Fixed Basic Rent to
be paid by Lessee during the Renewal Term. If Lessor and
Lessee shall agree upon the Fixed Basic Rent for the Renewal
Term, the parties shall promptly execute an amendment to this
Lease stating the Fixed Basic Rent for the Renewal Term.
(e) If the parties are unable to agree on the Fixed Basic Rent for
the Renewal Term during the Negotiation Period, then within
fifteen (15) days after notice from the other party, given
after expiration of the Negotiation Period, each party, at its
cost and upon notice to the other party, shall appoint a
person to act as an appraiser hereunder, to determine the fair
market rent for the Premises for the Renewal Term. Each such
person shall be a real estate broker or appraiser with at
least ten (10) years' active commercial real estate appraisal
or brokerage experience (involving the leasing of office space
as agent for both lessors and lessees) in Morris County, New
Jersey. If a party does not appoint a person to act as an
appraiser within said fifteen (15) day period, the person
appointed by the other party shall be the sole appraiser and
shall determine the aforesaid fair market rent. Each notice
containing the name of a person to act as appraiser shall
contain also the person's address. Before proceeding to
establish the fair market rent, the appraisers shall subscribe
and swear to an oath fairly and impartially to determine such
rent.
If the two (2) appraisers are appointed by the parties as
stated in the immediately preceding paragraph, they shall meet
promptly and attempt to determine the fair market rent. If
they are unable to agree within forty-five (45) days after the
appointment of the second appraiser, they shall attempt to
select a third person meeting the qualifications stated in the
immediately preceding paragraph within fifteen (15) days after
the last day the two (2) appraisers are given to determine the
fair market rent. If they are unable to agree on the third
person to act as appraiser within said fifteen (15) day
period, the third person shall be appointed by the American
Arbitration Association (or any successor thereto) (the
"Association"), upon the application of Lessor or Lessee to
the office of the Association nearest the Building. The person
appointed to act as appraiser by the Association shall be
required to meet the qualifications stated in the immediately
preceding paragraph. Each of the parties shall bear fifty
percent (50%) of the cost of appointing the third person and
of paying the third person's fees. The third person, however
selected, shall be required to take an oath similar to that
described above.
The third appraiser shall conduct such hearing and
investigations as he/she may deem appropriate and shall,
within thirty (30) days after the date of his/her appointment,
determine the fair market rent by selecting the fair market
rent determined by either the appraiser selected by Lessor or
the appraiser selected by Lessee. The third appraiser shall
have no discretion other than to choose the fair market rent
determined by one of the other two appraisers by the process
commonly known as "baseball arbitration".
(f) After the fair market rent for the Renewal Term has been
determined by the appraiser or appraisers and the appraiser or
appraisers shall have notified the parties, at the request of
either party, both parties shall execute and deliver to each
other an amendment of this Lease stating the Fixed Basic Rent
for the Renewal Term.
(g) If the Fixed Basic Rent for the Renewal Term has not been
agreed to or established prior to the commencement of the
Renewal Term, then Lessee shall pay to Lessor an annual rent
("Temporary Rent") which Temporary Rent shall be equal to one
hundred twenty-five percent (125%) of the Fixed Basic Rent
payable by Lessee for the last year of the initial Term.
Thereafter, if the parties shall agree upon a Fixed Basic
Rent, or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or
appraisers, at a rate at variance with the Temporary Rent: (i)
if such
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Fixed Basic Rent is greater than the Temporary Rent, Lessee
shall promptly pay to Lessor the difference between the Fixed
Basic Rent determined by agreement or the appraisal process
and the Temporary Rent; or (ii) if such Fixed Basic Rent is
less than the Temporary Rent, Lessor shall credit to Lessee's
subsequent monthly installments of Fixed Basic Rent the
difference between the Temporary Rent and the Fixed Basic Rent
determined by agreement or the appraisal process.
(h) In describing the fair market rent during the Renewal Term,
the appraiser or appraisers shall be required to take into
account the rentals at which leases are then being concluded
(as of the last day of the initial Term) (for three (3) year
leases without renewal options with the lessor and lessee each
acting prudently, with knowledge and for self-interest, and
assuming that neither is under undue duress) for comparable
space in the Building and in comparable office buildings in
the Morris County, New Jersey.
(i) The option granted to Lessee under this Article 54 may be
exercised only by Lessee, its Affiliates, permitted successors
and assigns, and not by any sublessee or any successor to the
interest of Lessee by reason of any action under the
Bankruptcy Code, or by any public officer, custodian,
receiver, United States Trustee, trustee or liquidator of
Lessee or substantially all of Lessee's property. Lessee shall
have no right to exercise this option subsequent to the date
Lessor shall have the right to give the notice of termination
referred to in Article 13 hereof unless Lessee cures the
default within the applicable notice and cure period.
Notwithstanding the foregoing, Lessee shall have no right to
extend the Term if, at the time it gives notice of its
election Lessee shall not be in occupancy of more than fifty
percent (50%) of the Premises.
55. STORAGE SPACE:
In addition to the Premises, Lessee, at Lessee's sole option,
may desire to utilize storage space in the Building or in a
building owned or managed by Lessor or an affiliate of Lessor
within the Mack-Cali Business Campus, Parsippany, New Jersey
(not to exceed five thousand (5,000) square feet)("Storage
Space"). In the event Lessee elects to lease the Storage
Space, Lessor (or an affiliate of Lessor) leases to Lessee and
Lessee hereby hires from Lessor the Storage Space in its
"AS-IS" condition. The Storage Space shall be used for the
storage of files, equipment and business records, and for no
other purpose. Lessor makes no warranty or representation that
the Storage Space is suitable for any particular purpose.
Lessor is under no obligation to perform any work or provide
any materials to prepare the Storage Space for Lessee. From
and after the date Lessee commences the leasing of such
Storage Space, Lessee shall pay Lessor, as Additional Rent,
payable in advance on the first day of each calendar month of
the Term in monthly installments, the sum of TWELVE AND 00/100
DOLLARS ($12.00) per square foot per annum of Storage Space
("Storage Fee"). Lessee hereby covenants and agrees to keep
the Storage Space and any equipment in or about the Storage
Space in good order, repair and condition throughout the Term
hereof, and promptly and adequately repair all damage to the
Storage Space or the equipment caused by Lessee. Lessee hereby
covenants and agrees not to disrupt, affect or interfere with
other occupants in the Building or the building within which
the Storage Space is located or with any lessee's use and
enjoyment of its leased premises or the common areas of the
Building or the building within which the Storage Space is
located. Except as otherwise provided herein, all of the
terms, covenants and provisions of this Lease regarding the
Premises shall apply to the Storage Space. Upon the
determination of the square footage of the Storage Space and
the building within which the Storage Space is located, the
parties shall enter into an amendment to this Lease, if such
Storage Space is located within the Building or a storage
space license agreement (in the form attached hereto and made
a part hereof as Exhibit I), if the Storage Space is located
in another building within the Mack-Cali Business Campus.
56. LESSOR'S INSURANCE:
During the Term, Lessor shall maintain the following insurance,
insuring Lessor and any mortgagee, as their respective interests may
appear: (i) insurance against damage to the Building and Office
Building Area by all risks of direct physical loss in an amount
equivalent to the full replacement cost thereof; (ii) commercial
general liability insurance against claims
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for bodily injury and property damage occurring in or about the Common
Facilities in amounts customarily carried by owners of similar
buildings in the Morris County, New Jersey area; and (iii) insurance
against such other hazards as, from time to time, are then commonly
insured against for buildings similarly situated in amounts normally
carried with respect thereto. All insurance maintained pursuant to this
Article 56 may be effected by blanket insurance policies.
57. ATTORNEY'S FEES:
In the event that either party shall prevail in any litigation pursuant
to this Lease, the prevailing party shall be entitled to recover from the other
party, reasonable attorney's fees fixed by the court and part of any final
judgment rendered.
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EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under this Lease or make any claim that this Lease is invalid or
unenforceable due to any failure of this document to comply with ministerial
requirements, including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar requirements, and each
party hereby waives the right to assert any such defense or make any claim of
invalidity or unenforceability due to any of the foregoing.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR: LESSEE:
MAPLE 6 CAMPUS L.L.C. ALTEON INC.
By: Mack-Cali Realty, L.P., Member
By: Mack-Cali Realty Corporation, its
General Partner
By: /s/ Michael K. Nevins By: /s/ Kenneth I. Moch
------------------------------- ------------------------------
Name: Michael K. Nevins Name: Kenneth I. Moch
Title: Vice President - Leasing Title: President and Chief
Executive Officer
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EXHIBIT A
LOCATION OF PREMISES
Exhibit A - Page 1
<PAGE>
EXHIBIT A-1
OFFICE BUILDING AREA
Being known and designated as Lot 3.03 in Block 202 as shown on the certain map
entitled, "Final Plat of Prudential Business Campus, Block 202 Lots 3.02 through
3.12," which map was filed in the Morris County Clerk's Office on April 29, 1980
as Map Number 3908. Also known as 6 Campus Drive, Parsippany, New Jersey.
BEGINNING at a point being witnesses by a 1/2" rebar found displaced North 0.02
feet, and East 0.01 feet, on the Northerly right of way line of Campus Drive,
100 feet wide Public Right of Way, said point being a common corner of Lot 3.04,
Block 202, N/F Mack-Cali Campus Realty, L.L.C., as more particularly shown on
the hereinabove referenced filed Subdivision Plat, said and from said beginning
point running thence,
Courses number 1 through 3 are along said Northerly right of way line of Campus
Drive.
1) North 81 degrees 13 minutes 37 seconds West, 432.32 feet to a point
being witnessed by 3/4" Rebar found displaced North 0.11 feet and East
0.45 feet, thence;
2) On a curve to the right having a radius of 889.87 feet, an arc length
of 244.76 feet, a central angle of 15 degrees 45 minutes 34 seconds, a
chord bearing of North 73 degrees 20 minutes 50 seconds West, a chord
distance of 243.99 feet, to a point of tangency being witnessed by
-3/4" rebar found displaced North 0.12 feet and East 0.26 feet, thence;
3) North 65 degrees 28 minutes 03 seconds West, 131.28 feet to a point and
common corner of Lot 3.02 Block 202, N/F Maple Plaza, LLC, thence;
4) Along the Easterly line of said Lot 3.02, North 24 degrees 31 minutes
54 seconds East, 600.18 feet to a point being witnessed by a 3/4"
rebar found displaced North 0.22 feet and East 0.15 feet, said point
being on the Southerly line of Lot 4.02 Block 202, N/F New Dunn &
Bradstreet, Inc., thence;
5) Along said Southerly line of 4.02 Block 202 and continuing along the
southerly line of Lot 4.03 Block 202, N/F Mack-Cali Campus Realty,
L.L.C., South 65 degrees 28 minutes 06 seconds East, passing over a
concrete monument recovered at the common corner of said Lots 4.02 and
4.03, 171.24 feet to a point being witnessed Henderson and Bodwell iron
pipe recovered, thence;
6) Still along said Southerly line of Lot 4.03 and continuing Lot 3.04
Block 202, N/F Mack-Cali Campus Realty, L.L.C., South 81 degrees 11
minutes 55 seconds East, passing over a concrete monument recovered at
the common corner of said Lots 4.03 and 3.04, 473.04 feet to a point,
being witnessed by 3/4" iron pipe found displaced North 0.11 feet and
East 0.33 feet; thence;
7) Along the Westerly line of said Lot 3.04, South 08 degrees 49 minutes
11 seconds West, 599.99 feet to the point and place of Beginning.
Exhibit A-1 - Page 1
<PAGE>
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by
Lessee for any purpose other than ingress and egress. If the Premises
are situated on the ground floor with direct access to the street, then
Lessor shall, at Lessor's expense, keep the sidewalks and curbs
directly in front of the Premises clean and free from ice, snow and
refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window sills of
the Building or otherwise affixed so as to project from the Building,
without prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor, which consent shall not be
unreasonably withheld, conditioned or delayed. However, Lessee shall
have the right to place its name on any door leading into the Premises,
the size, color and style thereof to be subject to Lessor's approval,
which approval shall not be unreasonably withheld, conditioned or
delayed. Lessee shall not have the right to have additional names
placed on the Building directory without Lessor's prior written
consent. Notwithstanding the foregoing, Lessee shall have Lessee's
Percentage of any Building directory (e.g., lobby and/or floor).
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor
of the Premises. If linoleum or other similar floor covering is desired
to be used, an interlining of builder's deadening felt shall first be
fixed to the floor by a paste or other material that may easily be
removed with water, the use of cement or other similar adhesive
material being expressly prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or
permit to be made, any unseemly or disturbing noises or odors and shall
not interfere with other lessees or those having business with them.
Lessee will keep all mechanical apparatus in the Premises free of
vibration and noise which may be transmitted beyond the limits of the
Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in
the event of the loss of any keys furnished, Lessee shall pay to Lessor
the reasonable cost thereof. Lessee, before closing and leaving the
Premises, shall ensure that all windows are closed and entrance doors
locked. Nothing in this Paragraph 7 shall be deemed to prohibit Lessee
from installing a burglar alarm within the Premises, provided: (a)
Lessee obtains Lessor's consent, which consent shall not be
unreasonably withheld, conditioned or delayed; (b) Lessee supplies
Lessor with copies of the plans and specifications of the system; (c)
such installation shall not damage the Building; and (d) all costs of
installation shall be borne solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels,
toilet articles, waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electrical fixtures,
removal of waste paper, rubbish, garbage, or other like service shall
be entered into by Lessee, nor shall any machine of any kind be
installed in the Building or the Office Building Area without the prior
written consent of Lessor, which consent shall not be unreasonably
withheld, conditioned or delayed. Lessee shall not employ any persons
other than Lessor's janitors or Lessee's own employees for the purpose
of cleaning the Premises
Exhibit B - Page 1
<PAGE>
without prior written consent of Lessor, which consent shall not be
unreasonably withheld, conditioned or delayed. Lessor shall not be
responsible to Lessee for any loss of property from the Premises
however occurring, or for any damage to the effects of Lessee by such
janitors or any of its employees, or by any other person or any other
cause.
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise (except in connection with Lessee's
business) upon the Premises without the prior written approval of
Lessor, except the storage of usual supplies and inventory to be used
by Lessee in the conduct of his business, permit the Premises to be
used for gambling, make any unusual noises in the Building, permit to
be played musical instrument on the Premises, permit any radio to be
played, or television, recorded or wired music in such loud manner as
to disturb or annoy other lessees, or permit any unusual odors to be
produced on the Premises. Lessee shall not permit any portion of the
Premises to be occupied as an office for a public stenographer or
typewriter, or for the storage, manufacture, or sale of intoxicating
beverages (except in connection with Lessee's business), narcotics,
tobacco in any form or as a barber or manicure shop. Canvassing,
soliciting and peddling in the Building and the Office Building Area
are prohibited and Lessee shall reasonably cooperate to prevent the
same. No bicycles, vehicles or animals (other than seeing-eye) of any
kind shall be brought into or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed;
and no sweepings, rubbish, ashes, newspaper or other substances of any
kind shall be thrown into them. Waste and excessive or unusual amounts
of electricity or water is prohibited. When electric wiring of any kind
is introduced, it must be connected as reasonably directed by Lessor,
and no stringing or cutting of wires will be allowed, except by prior
written consent of Lessor, and shall be done by contractors approved by
Lessor. The number and locations of telephones, telegraph instruments,
electrical appliances, call boxes, etc. shall be subject to Lessor's
approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out
of freight, furniture or bulky matter of any description must take
place during such hours as Lessor may from time to time reasonably
determine and only after reasonable advance notice (which notice may be
telephonic) to the superintendent of the Building. The persons employed
by Lessee for such work must be reasonably acceptable to Lessor. Lessee
may, subject to these provisions, move freight, furniture, bulky
matter, and other material into or out of the Premises on weekdays
after 5:00 p.m. and on Saturdays between the hours of 9:00 a.m. and
1:00 p.m., provided Lessee pays additional actual out-of-pocket
reasonable costs, if any, incurred by Lessor for elevator operators or
security guards, and for any other expenses occasioned by such activity
of Lessee. There shall not be used in the Building or Premises, either
by Lessee or by others in the delivery or receipt of merchandise, any
hand trucks except those equipped with rubber tires and side guards,
and no hand trucks will be allowed in the elevators without the consent
of the superintendent of the Building. Notwithstanding the foregoing,
Lessee shall not incur any costs with respect to its initial move-in to
the Premises.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to
reasonably prescribe the weight and position of all safes and other
heavy equipment so as to distribute properly the weight thereof and to
prevent any unsafe condition from arising. Notwithstanding the
foregoing, Lessor hereby consents to Lessee's installation of its
"rolling files" in the Premises, provided that Lessee does not exceed
the floor load of the Premises.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the
reputation of the Building or its desirability as a building for
offices, and upon written notice from Lessor, Lessee shall refrain from
or discontinue such advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER LESSEES: Lessor shall not
be responsible to Lessee for non-observance or violation of any of
these rules and regulations by any other lessee. Lessor shall not
discriminate against Lessee in its enforcement of the rules and
regulations.
Exhibit B - Page 2
<PAGE>
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not
present a pass to the Building signed by Lessee. Each lessee shall be
responsible for all persons for whom such a pass is issued and shall be
liable to Lessor for the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area reasonably designated by Lessor.
17. Lessor hereby reserves to itself any and all rights not granted to
Lessee hereunder, including, but not limited to, the following rights
which are reserved to Lessor for its purposes in operating the
Building:
a) the exclusive right to the use of the name of the Building for
all purposes, except that Lessee may use the name as its
business address and for no other purposes;
b) the right to change the name or address of the Building,
without incurring any liability to Lessee for doing so;
c) the right to install and maintain a sign on the exterior of
the Building;
d) the exclusive right to use or dispose of the use of the roof
of the Building;
e) the right to limit the space on the directory of the Building
to be allotted to Lessee (except as otherwise provided in
Paragraph 4 hereof); and
f) the right to grant to anyone the right to conduct any
particular business or undertaking in the Building.
18. Lessee shall be responsible for initiating, maintaining and supervising
all health and safety precautions and/or programs required by law in
connection with Lessee's use and occupancy of the Premises.
19. Lessee shall not store, introduce or otherwise permit any material
known to be hazardous within the Premises, except in reasonable
quantities consistent with ordinary office use. Any material within the
Premises which is determined to be hazardous shall be removed and
properly disposed of by Lessee, at Lessee's sole expense.
Exhibit B - Page 3
<PAGE>
EXHIBIT C
NOTES
RE: Workletter Agreement for office space on the second (2nd) floor at 6
Campus Drive, Parsippany, New Jersey
October 21, 2003
LESSEE:
ALTEON INC.
You ("Lessee") and we ("Lessor") are executing simultaneously with this
Workletter Agreement, a written lease ("Lease"), covering the space referred to
above, as more particularly described in the Lease ("Premises").
To induce Lessee to enter into the Lease (which is hereby incorporated by
reference) and in consideration of the covenants hereinafter contained, Lessor
and Lessee mutually agree as follows:
1. Lessor, as part of The Work ( as hereinafter defined) shall have its
architect prepare the following architectural and mechanical drawings
and specifications based upon the sketch layout supplied to Lessor by
Lessee, attached hereto and made a part hereof, upon full execution of
the Lease.
a. Architectural drawings and specifications for Lessee's
partition layout, reflected ceiling, placement of electrical
outlets and other installations for the work to be done by
Lessor.
b. Mechanical plans and specifications where necessary for
installation of air conditioning systems, ductwork and
heating.
All such plans and specifications are expressly subject to Lessor's
written approval, which approval shall not be unreasonably withheld,
conditioned or delayed.
2. Lessor agrees to cause the partition plan, electrical plan and the
reflected ceiling plan to be delivered to Lessee on or before the
fifteenth (15th) day after Lease execution. Lessee agrees to approve
said plans by initialing and returning same to Lessor within three (3)
days of receipt of each plan. Upon approval of the plans initialed by
Lessee, Lessor shall file said plans with the appropriate governmental
agencies.
3. Lessor agrees, at its expense and without charge to Lessee (unless
otherwise provided), to do the work in the Premises as shown on the
final working drawings dated September 23, 2003 , prepared by First
Floor Design and transmitted to the parties on October 10, 2003 and at
Lessee's sole cost and expense, Lessor shall install (i) a supplemental
HVAC unit in the telecommunications room of the Premises; (ii) upgraded
carpet in the Premises; and (iii) sound batting above and within the
walls in the conference room and rooms 212 and 213 of the Premises
(collectively, "The Work"). As part of The Work, Lessor shall provide
an allowance of up to and including $10,000.00 toward the cost of floor
reinforcement to accommodate Lessee's "rolling files". If the cost of
such reinforcement exceeds $10,000.00, then Lessee shall be responsible
for such excess. The Work shall include Lessor's general conditions and
overhead amounts. "Building Standard" shall mean the type and grade of
material, equipment and/or device designated by Lessor as standard for
the Building. All items are Building Standard unless otherwise noted.
The provisions of Article 6 of the Lease shall apply to any alterations
made to the Premises after the initial work to be performed herein. The
Building systems and utilities servicing the Premises shall be in good
working order and condition on the Commencement Date.
4. As part of The Work and as set forth in Paragraph 3 above, Lessor
shall, at Lessee's sole cost and expense, install (i) a supplemental
HVAC unit in the telecommunications room of the Premises; (ii) upgraded
carpet in the Premises; and (iii) sound batting above and within the
walls in the conference room and rooms 212 and 213 of the Premises.
Lessee shall pay
Exhibit C - Page 1
<PAGE>
Lessor, as Additional Rent, Lessor's price for such work and for Change
Orders (as defined and pursuant to Paragraph 7 hereof) as follows: (i)
fifty percent (50%) upon Lessee's execution and delivery of this Lease;
and (ii) fifty percent (50%) upon Lessor's substantial completion of
The Work and prior to Lessee's occupancy of the Premises.
5. All low partitioning, workstation modules, bank screen partitions and
prefabricated partition systems shall be furnished and installed by
Lessee.
6. The installation or wiring of telephone and computer (data) outlets is
not part of The Work. Lessee shall bear the responsibility to provide
its own telephone and data systems, at Lessee's sole cost and expense.
Upon expiration or sooner termination of the Lease, Lessee shall remove
all telephone and data equipment and wiring from the Premises and the
Building risers upon vacation of same. As part of the Work, Lessor
shall remove the existing telecommunication wiring in the Premises.
7. Changes in The Work, if necessary or requested by Lessee, shall be
accomplished after the execution of the Lease and this Workletter
Agreement, and without invalidating any part of the Lease or Workletter
Agreement, by written agreement between Lessor and Lessee ("Change
Order"). Each Change Order shall be prepared by Lessor, and signed by
both Lessee and Lessor stating their agreement upon all of the
following:
a. the scope of the change in The Work;
b. the cost of the change;
c. manner in which the cost will be paid or credited; and
d. the estimated extent of any adjustment to the Commencement
Date (if any) as a result of the change in The Work.
Each and every Change Order shall be signed by Lessor's and Lessee's
respective construction representatives. In no event shall any Change
Order(s) be permitted without such authorizations. A 10% supervision
plus 10% overhead charge will be added to the cost of any Change Order
and to the cost of any other work to be performed by Lessor in the
Premises after Lessor's completion of The Work. If Lessee shall fail to
approve any such Change Order within one (1) week, the same shall be
deemed disapproved in all respects by Lessee and Lessor shall not be
authorized to proceed thereon. Any increase in the cost of The Work or
the change in The Work stated in a Change Order which results from
Lessee's failure to timely approve and return said Change Order shall
be paid by Lessee. Lessee agrees to pay to Lessor the cost of any
Change Order promptly upon receipt of an invoice for same, together
with reasonable supporting documentation. Similarly, any cost savings
resulting from such Change Order(s) shall be credited to Lessee.
Lessor's cost for such Change Orders shall be reasonably competitive.
8. If any change is made after completion of schematic drawings and prior
to completion of final construction documents which result in a Change
Order and additional costs, such costs shall be the responsibility of
Lessee.
9. Prior to Lessee's occupancy of the Premises, Lessee shall identify and
list any portion of The Work which does not conform to this Workletter
Agreement ("Punch List"). Lessor shall review with Lessee all of the
items so listed and promptly correct or complete any portion of The
Work which fails to conform to the requirements of this Workletter
Agreement.
10. The terms contained in the Lease (which include all exhibits attached
thereto) constitute Lessor's agreement with Lessee with respect to the
work to be performed by Lessor on Lessee's behalf. If the architectural
drawings are in conflict with the terms of the Lease, then the Lease
shall be deemed the controlling document.
11. All materials and installations constructed for Lessee within the
Premises shall become the property of Lessor upon installation. No
refund, credit or removal of said items is to be permitted at the
termination of the Lease. Items installed that are not integrated in
any such way with other common building materials do not fall under
this provision (e.g., shelving,
Exhibit C - Page 2
<PAGE>
furniture, etc.).
12. It is agreed that, notwithstanding the date provided in the Lease for
the Commencement Date, the Term shall not commence until Lessor has
"substantially completed" all work to be performed by Lessor as
hereinbefore set forth in Paragraph 3 hereof and as set forth in the
Lease; provided, however, that if Lessor shall be delayed in
substantially completing said work as a result of:
a. Lessee's failure to approve the plans and specifications in
accordance with Paragraph 2 hereof; or
b. Lessee's failure to furnish interior finish specifications
(i.e., paint colors, carpet selection, etc.), to Lessor by the
fifth (5th) working day after Lessor has approved the plans
and specifications submitted by Lessee referred to in
Paragraph 2 hereof; or
c. Lessee's request for materials, finishes or installations
other than Lessor's Building Standard; or
d. Lessee's changes in The Work; or
e. The performance of a person, firm, partnership or corporation
employed by Lessee and the completion of the said work by said
person, firm, partnership or corporation,
then the Commencement Date of the term of said Lease shall be
accelerated by the number of days of such delay and Lessee's obligation
to pay Fixed Basic Rent and Additional Rent shall commence as of such
earlier date. Lessor shall notify Lessee if Lessor knows that any act
or omission of Lessee shall result in a delay of Lessor's substantial
completion of The Work.
13. Lessor shall permit Lessee and its agents to enter the Premises prior
to the Commencement Date in order that Lessee may perform through its
own non-union contractors (or union contractor if reasonably required
by Lessor) such other work and decorations as Lessee may desire at the
same time Lessor's contractors are working in the Premises. The
foregoing license to enter prior to the Commencement Date, however, is
conditioned upon:
a. Lessee's workmen and mechanics working in harmony and not
interfering with the labor employed by Lessor, Lessor's
mechanics or contractors or by any other lessee or its
mechanics or contractors; and
b. Lessee providing Lessor with evidence of Lessee's contractors
and subcontractors carrying such worker's compensation,
general liability, personal and property insurance as required
by law and in amounts no less than the amounts set forth in
Article 30 of the Lease. If at any time such entry shall cause
disharmony or interference therewith, this license may be
withdrawn by Lessor upon forty-eight (48) hours written notice
to Lessee. Such entry shall be deemed controlled by all of the
terms, covenants, provisions and conditions of said Lease,
except as to the covenant to pay Fixed Basic Rent and
Additional Rent. Lessor shall not be liable in any way for any
injury, loss or damage which may occur to any of Lessee's
decorations or installations so made prior to the Commencement
Date, the same being solely at Lessee's risk.
14. No part of the Premises shall be deemed unavailable for occupancy by
Lessee, or shall any work which Lessor is obligated to perform in such
part of the Premises be deemed incomplete for the purpose of any
adjustment of Fixed Basic Rent payable hereunder, solely due to the
non-completion of details of construction, decoration or mechanical
adjustments which are minor in character and the non-completion of
which does not materially interfere with Lessee's use of such part of
the Premises.
15. Lessee is responsible for all costs related to the repairs and
maintenance of any additional or supplemental HVAC systems, appliances
and equipment installed to meet Lessee's specific requirements. Lessee
shall purchase a service contract for this equipment so that the
equipment is covered by such service contract each year of the term of
the Lease and shall forward a copy of such contract to Lessor.
Exhibit C - Page 3
<PAGE>
16. If construction is to occur in a space occupied by Lessee's employees,
Lessee shall be liable for all costs associated with a delay if Lessee
shall fail to comply with a submitted construction schedule to relocate
personnel, furniture, or equipment. These costs shall include, but not
be limited to, the following:
a. cost of construction workers time wasted;
b. cost of any overtime work necessary to meet schedule
deadlines; and
c. any other costs associated with delays in final completion.
17. This Workletter Agreement is based on the quantities and specifications
listed herein. Any change to these specifications shall require the
recalculation of the construction costs. Such recalculation shall not
negate any other section of the Lease.
18. All sums payable by Lessee to Lessor in connection with this Exhibit C
and any other work to be performed by Lessor within the Premises and
billable to Lessee shall be deemed Additional Rent.
19. With respect to the construction work being conducted in or about the
Premises, each party agrees to be bound by the approval and actions of
their respective construction representatives. Unless changed by
written notification, the parties hereby designate the following
individuals as their respective construction representatives:
FOR LESSOR: FOR LESSEE:
James Battaglia Elizabeth O'Dell
c/o Mack-Cali Realty Corporation Vice President - Finance
11 Commerce Drive c/o Alteon Inc.
Cranford, New Jersey
Exhibit C - Page 4
<PAGE>
EXHIBIT C - 1
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the Building air-conditioning system for
cooling and heating the air in the subject Building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than
76 degrees (24.4 degrees C) when the outdoor dry bulb temperature is
lower than 65 degrees F (18 degrees C) but not lower than 0 degrees F
(-13 degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature
of not more than 78 degrees F when the outside dry bulb temperature is
95 degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature
is below 55 degrees (13 degrees C), cooling will be provided by outside
air usage in conjunction with operating of return air, outside air and
exhaust air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per
square foot of rentable area, and between .20 and 1.0 cubic feet of
total air per minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from: (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area; (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds six
(6) watts per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria; or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the air-conditioning
system in the Premises results, necessitating changes in the air
conditioning system servicing the Premises, such changes shall be made
by Lessor upon written notice to Lessee at Lessee's sole cost and
expense. Lessee agrees to lower and close window coverings when
necessary because of the sun's position whenever the air conditioning
system is in operation, and Lessee agrees at all times to reasonably
cooperate with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which
Lessor may hereafter reasonably prescribe involving the
air-conditioning system.
-- END --
Exhibit I - Page 1
Exhibit C-1 - Page 1
<PAGE>
EXHIBIT D
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets,
etc. shall be dusted with a clean treated dust cloth whenever necessary
and only if such surfaces are clear of Lessee's personal property
including but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window sills are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company. The pantry area of the Premises
shall be wiped down daily.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual refuse
in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups
or similar containers. If such liquids are spilled in waste baskets,
the waste baskets will be emptied but not otherwise cleaned. Lessor
will not be responsible for any stained carpet caused from liquids
leaking or spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same
with Lessor's cleaning maintenance company.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile flooring.
Hard surface floors such as quarry tile, etc., shall be cleaned
nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with
a germicidal detergent to ensure a clean and germ free
surface.
b. Wash and polish all mirrors, shelves, bright work including
any piping and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal
detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and
receptacles in a clean condition using a germicidal detergent
when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap
dispensers. Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
<PAGE>
EXHIBIT E
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
-- END --
Exhibit E - Page 1
<PAGE>
EXHIBIT F
LESSEE ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is lessee under that certain Lease dated ______________
("Lease"), by and between __________________ , as Lessor, and
___________________ , as Lessee, covering those certain consisting of
approximately gross rentable square feet on the________ (__) floor of
the building commonly known as ___________________________ , New Jersey
("Premises").
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and Lessor affecting said
Premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments
or any other type of rental concession (except as indicated following
this sentence). If none, state "none".
4. The undersigned has accepted and now occupies the Premises, and is and
has been open for business since______ , 200_. The Lease term began
________ , 200_, and the rent for said Premises has been paid to and
including __________ , 200_, in conformity with the Lease. No rent has
been prepaid for more than two (2) months. The fixed basic rent being
paid as above is $ __________ per month. If Lessee is not in full
possession, whether Lessee has assigned the Lease, sublet all or any
portion of the Premises, or otherwise transferred any interest in the
Lease or the Premises, Lessee agrees to provide a copy of such
assignment, sublease, or transfer upon written request.
5. Lessee is not in default and the Lease is in full force and effect. As
of the date hereof, the undersigned is entitled to no credit, no free
rent and no offset or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Workletter attached to Lease as
Exhibit C.
7. The Lease does not contain and the undersigned doesn't have any
outstanding options or rights of first refusal to purchase the Premises
or any part thereof or the real property of which the Premises are a
part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any State
thereof.
9. There are currently no valid defenses, counterclaims, off-sets,
credits, deductions in rent, or claims against the enforcement of any
of the agreements, terms, or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one of
its affiliates hereunder and that pursuant to the terms thereof: (i)
all rental payments under said Lease shall continue to be paid to
Lessor in accordance with the terms of the Lease unless and until
Lessee are otherwise notified in writing by MORTGAGEE, or its
successors or assigns; and (ii) no modification, revision, or
cancellation of the Lease or amendments thereto shall be effective
unless a written consent thereto of such MORTGAGEE is first obtained.
11. The undersigned is authorized to execute this Lessee Estoppel
Certificate on behalf of Lessee.
Dated this ________ day of __________________ , 200_
LESSEE:
ALTEON INC.
____________________________________
Name:
Title:
Exhibit F - Page 1
<PAGE>
EXHIBIT G
COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
THIS AGREEMENT made the _________day of ________, 200_ (hereinafter
"Agreement"), is by and between ______________ (hereinafter "Lessor"),
whose address is c/o Mack-Cali Realty Corporation, 11 Commerce Drive,
Cranford, New Jersey 07016 and _________________________ (hereinafter
"Lessee"), whose address is ________________________________.
2.0 STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated ____________,
2003 (hereinafter "Lease") setting forth the terms of
occupancy by Lessee of approximately ________ gross rentable
square feet on the _____ (___) floor (hereinafter "Premises")
at _____________________________ (hereinafter "Building"); and
2.2 The Term of the Lease is for ____________ (__) months with the
Commencement Date of the initial Term being defined in the
Preamble to the Lease as being subject to change under
Articles 27 and 43 thereof; and
2.3 It has been determined in accordance with the provisions of
Articles 27 and 43 of the Lease that ___________, 200_, is the
Commencement Date of the Term of the Lease.
3.0 STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the
covenants hereinafter set forth, it is agreed:
3.1 The Commencement Date of the Term of the Lease is ___________
, 200_, and the Expiration Date thereof is _____________ ,
200_, and the Articles 6 and 9 of the Preamble to the Lease
shall be deemed modified accordingly.
3.2 Article 10 of the Preamble to the Lease shall be deemed
modified as follows:
3.3 This Agreement is executed by the parties hereto for the
purpose of providing a record of the Commencement Date and
Expiration Date of the Lease, adjust the Term of the Lease and
Fixed Basic Rent amount accordingly.
EXCEPT as modified herein, the Lease covering the Premises shall remain
in full force and effect as if the same were set forth in full herein, and
Lessor and Lessee hereby ratify and confirm all the terms and conditions
thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the
parties hereto, and their respective legal representatives, successors and
permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements, including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
MAPLE 6 CAMPUS L.L.C. ALTEON INC.
By: Mack-Cali Realty, L.P., Member
By: Mack-Cali Realty Corporation, its
General Partner
By: _____________________________ By: _____________________________
Name: Michael K. Nevins Name:
Title: Vice President - Leasing Title:
Exhibit G - Page 1
<PAGE>
EXHIBIT H
SAMPLE FORM - LETTER OF CREDIT
[DATE]
TO:
[Name of Beneficiary]
[Address]
Re: Irrevocable Letter of Credit
Gentlemen:
By order of our client, _________________________, we hereby establish
our irrevocable Letter of Credit No. ______ in your favor for a sum or sums not
to exceed $__________________ (_________________U.S. Dollars) in the aggregate,
effective immediately.
This Letter of Credit shall be payable in immediately available funds
in U.S. Dollars. Funds under this credit are payable to you upon your
presentation to us a sight draft drawn on us in the form annexed hereto. All
drafts must be marked: "Drawn under Letter of Credit No. ____ of [Name of
Issuing Bank].
This Letter of Credit shall expire twelve (12) months from the date
hereof; but is automatically extendable, so that this Letter of Credit shall be
deemed automatically extended, from time to time, without amendment, for one (1)
year from the expiration date hereof and from each and every future expiration
date, unless at least thirty (30) days prior to any expiration date, we shall
notify you by registered or certified mail, or overnight courier service, that
we elect not to consider this Letter of Credit renewed for any such additional
period. The final expiration date hereof shall be no earlier than [fill in
suitable date after expiration of lease].
This Letter of Credit is transferable and may be transferred one or
more times. However, no transfer shall be effective unless advice of such
transfer is received by us in our standard form.
We hereby agree to honor each draft drawn under and in compliance with
this Letter of Credit, if duly presented at our offices at
___________________________or at any other of our offices.
This Letter of Credit is subject to the International Standby Practices
1998, International Chamber of Commerce Publication No. 590.
[Name of Bank]
By:
[Annex Bank's Form of Sight Draft]
Exhibit H - Page 1
<PAGE>
EXHIBIT I
STORAGE SPACE LICENSE
1.0 PARTIES
1.1 THIS LICENSE made this ______ day of __________ 200_
("License"), by and between ______ ("Licensor"), whose address
is c/o Mack-Cali Realty Corporation, 11 Commerce Drive,
Cranford, New Jersey 07016, and ________ ("Licensee"), whose
address is ______.
2.0 STATEMENT OF FACTS
2.1 The parties have previously entered into a Lease dated ______,
200_ ("Lease"), covering approximately ____ gross rentable
square feet of office space on the ___ floor of ______
("Building"); and
2.2 Licensee desires to utilize approximately ________ square feet
of storage space in the Building as shown on Exhibit A
attached hereto and made part hereof ("Storage Space").
3.0 TERMS OF LICENSE
NOW, THEREFORE, in consideration of the Storage Space and the mutual
covenants contained hereinafter, Licensor and Licensee hereby covenant and agree
as follows:
3.1 The above recitals are incorporated herein by reference.
3.2 Licensor hereby leases to Licensee and Licensee hereby hires
from Licensor the Storage Space, in its "AS-IS" condition.
Licensor makes no warranty or representation that the Storage
Space is suitable for the use described in Section 3.5 of this
License. Licensor is under no obligation to perform any work
or provide any materials to prepare the Storage Space for
Licensee. In addition, Licensee shall not make any
alterations, improvements or additions to the Storage Space
without first obtaining the written consent of Licensor, which
consent shall not be unreasonably withheld, conditioned or
delayed.
3.3 This License shall have a month-to-month term (unless
otherwise terminated in accordance with this License)
commencing _______ (the "Effective Date"), but the term shall
expire no later than _______. Licensor and Licensee shall have
the right to terminate this License upon the last day of each
and every month of the term of this License, provided that the
terminating party provides at least thirty (30) days' written
notice to the other party of its intention to terminate.
3.4 From and after the Effective Date, Licensee shall pay Licensor
a fee applicable to the Storage Space payable in advance on
the first (1st) day of each calendar month of the Term in
monthly installments, in the sum of ________________________
AND ____/100 DOLLARS ($___________) ("License Fee").
3.5 The Storage Space shall be used for the storage of files,
equipment and business records, and for no other purpose.
3.6 Nothing contained herein shall be construed as granting to
Licensee any property or ownership rights in the Storage
Space, or to create a partnership or joint venture between
Licensor and Licensee.
3.7 Licensee hereby covenants and agrees to keep the Storage Space
and any equipment in or about the Storage Space in good order,
repair and condition throughout the term hereof and promptly
and adequately repair all damage to the Storage Space or the
equipment caused by Licensee.
Exhibit I - Page 2
<PAGE>
3.8 Licensee hereby covenants and agrees not to disrupt, affect or
interfere with other occupants in the Building or with any
lessee's use and enjoyment of its leased premises or the
common areas of the Building.
3.9 Licensee shall indemnify, exonerate and hold Licensor harmless
from and against any and all loss, cost, damage (excluding
consequential) and expense of whatever kind arising directly
or indirectly from this License, Licensee's use of the Storage
Space or from Licensee's breach of this License, including,
but not limited to, reasonable attorney's fees and court
costs. In addition, any personal property or equipment brought
to the Storage Space by Licensee shall be there at the sole
risk of Licensee, and Licensor shall not be liable for damage
thereto or theft, misappropriation or loss thereof. The
provisions of this Section 3.9 shall survive termination of
this License.
3.10 Licensee shall store its files and business records at least
eighteen (18") inches (or more as required by fire code or
other applicable laws, ordinances, codes, rules or
regulations) below the ceiling in the Storage Space to allow
proper operation of sprinkler heads.
3.11 Licensor shall have the right, upon thirty (30) days' prior
written notice from Licensor, at Licensor's sole cost and
expense, to relocate the Storage Space to another location
reasonably designated by Licensor.
3.12 Licensee shall not sublet the Storage Space or assign or
transfer this License, except in connection with the Lease.
3.13 Licensee represents and warrants to Licensor that no real
estate broker(s) was (were) involved in bringing about this
License, and Licensee agrees to indemnify and hold Licensor
and its mortgagee(s) harmless from any and all claims of any
brokers and expenses (including reasonable legal fees) in
connection therewith arising out of or in connection with the
negotiation of or the entering into this License by Licensor
and Licensee. In no event shall Licensor's mortgagee(s) have
any obligation to any broker regarding this transaction.
3.14 This License shall be binding upon and inure to the benefit of
the parties hereto, and their respective legal
representatives, successors and permitted assigns.
3.15 Each party agrees that it will not raise or assert as a
defense to any obligation under the Lease or this License or
make any claim that the Lease or this License is invalid or
unenforceable due to any failure of this document to comply
with ministerial requirements, including, but not limited to,
requirements for corporate seals, attestations, witnesses,
notarizations, or other similar requirements, and each party
hereby waives the right to assert any such defense or make any
claim of invalidity or unenforceability due to any of the
foregoing.
IN WITNESS THEREOF, Licensor and Licensee have hereunto set their hands
and seals the date and year first above written, and acknowledge one to the
other they possess the requisite authority to enter into this transaction and to
sign this License.
LICENSOR: LICENSEE:
MAPLE 6 CAMPUS L.L.C. ALTEON INC.
By: Mack-Cali Realty, L.P., Member
By: Mack-Cali Realty Corporation, its
General Partner
By: _____________________________ By: ___________________________
Name: Michael K. Nevins Name:
Title: Vice President - Leasing Title:
Exhibit I - Page 2
<PAGE>
EXHIBIT J
[LETTERHEAD OF ALTEON]
[DATE]
[VENDOR NAME AND ADDRESS]
VENDOR'S SECRECY AGREEMENT
ALTEON INC. ("Alteon") is conducting several basic and applied research programs
utilizing technology on which Alteon has certain proprietary information which
is considered to be secret and confidential and to constitute a valuable
commercial asset. To protect Alteon's proprietary rights to this technology,
Alteon requires each of the vendors and/or contractors ("Vendor") furnishing
goods or services to Alteon for these programs to agree to the following terms
and conditions:
The Vendor shall not disclose to any third parties any information
concerning (a) the methods, plans, specifications, characteristics, or equipment
design of any goods or services which such Vendor has furnished or will furnish
to Alteon in connection with the aforementioned programs, or (b) the fact that
it is or has been engaged in furnishing such goods or services to Alteon.
The Vendor shall maintain in confidence and shall not disclose to any
third parties or use for any purpose other than for the benefit of Alteon, any
technical information, whether inventions, formulae, processes, specifications,
characteristics, equipment design, know-how, experience, or trade secrets,
concerning such process and equipment technology which it learns at Alteon or
from an Alteon employee, receives from Alteon or which it is permitted to
observe in connection with its visit or visits to Alteon. Furthermore, the
Vendor shall maintain in confidence and shall not disclose to any third party
any information concerning plans to sell or market any current or future
products of Alteon, which it receives from Alteon or which it is permitted to
observe in connection with its visit or visits to Alteon. Vendor's duty of
confidentiality shall not extend to:
any information that, at the time of disclosure, is
in or, after disclosure, becomes publicly known, other than by reason of breach
of this Agreement;
any information that prior to disclosure by Alteon,
was already in the possession of the Vendor as evidenced by the written records
kept by the Vendor in the ordinary course of its business, or as evidenced by
proof of actual prior use by the Vendor; and
any information which, subsequent to disclosure, is
obtained by the Vendor from a third party (1) who is lawfully in possession of
that Information, (2) who is not in violation of any contractual, legal or
fiduciary obligation to Alteon with respect to that Information, and (3) who
does not prohibit the Vendor from disclosing the Information to others.
All information, samples, compositions, drawings, designs,
specifications, forecasts, plans, promotional materials and other technical,
sales or marketing documents which the Vendor receives from Alteon continue to
remain the property of Alteon and will be accepted by such Vendor on the
understanding that: (i) they shall not be copied, reproduced or used in any
other manner except in the authorized and intended purpose and shall be returned
when requested, and (ii) all inventions, developments or improvements related to
any of the foregoing shall be owned solely by Alteon and shall be promptly
disclosed to Alteon.
Exhibit J - Page 1
<PAGE>
Vendor agrees to be bound by the obligation of confidentiality for
three years from the expiration of the lease agreement between Vendor and Alteon
covering premises located at 6 Campus Drive, Parsippany, New Jersey 07054, or
until such time as, and to the extent that, such information is published or is
publicly known.
Please signify your acceptance of the foregoing terms and conditions by signing
and returning to Alteon the enclosed counterpart of this letter which is
provided for that purpose, whereupon this letter will constitute a binding
agreement between us.
ALTEON INC.
By: ________________________________
Name: ________________________________
Title: ________________________________
Date: ________________________________
AGREED TO AND ACCEPTED BY:
By: _______________________________
Name: _______________________________
Title: _______________________________
Date: _______________________________
Exhibit J - Page 2
</TEXT>
</DOCUMENT>