Exhibit 10.2
OFFICE LEASE
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BUILDING: |
7 Kingsbridge Road, Fairfield, NJ |
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LANDLORD: |
Faircorp Associates, LLC |
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OFFICE LEASE
This
Lease, dated for reference purposes only March____, 2005, is made
by and between Faircorp Associates, LLC, ("Landlord"), and
Infotech, Inc., ("Tenant").
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1.
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CERTAIN
LEASE PROVISIONS
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The
description and amounts set forth below are qualified by their
usage elsewhere in this Lease, including those Sections referred to
in parentheses following such descriptions:
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1.1
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Tenant's
address and telephone number. (Section 19):
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Tenant Name: |
Infotech, Inc. |
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Address: |
7 Kingsbridge Road, Fairfield, NJ |
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1.2
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Premises.
(Section 2.1):
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Building Address: |
7 Kingsbridge Road, Fairfield, NJ |
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1.3
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Leased Area.
(Section 2.1):
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Approximately 9,660 Usable square feet plus an additional 5%
for common area for a total of 10,143 rentable square
feet.
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1.4
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Total
Building Area. (Section 2.1): 19,723 rentable square
feet.
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1.5
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Tenant's
Pro-Rata Share of Building Area. (Section 2.1):
49%
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1.6
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Lease Term.
(Section 3.1): Five years
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1.7
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Rent
Commencement Date. (Section 3.1): The earlier of: January 1, 2006
or the termination date of the sublease between Tenant and
Sungard.
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1.8
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Expiration
Date. (Section 3.1, 3.2): December 31, 2010
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Base Rent
for Lease Term (exclusive of electricity and other utility charges)
(Section 4.1):
| TERM |
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MONTHLY
BASE RENT |
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ANNUAL
BASE RENT |
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PER
SQ. FT |
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| 1/1/2006 - 12/31/2010 |
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$12,678.75.00 |
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$152,145.00 |
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$15.00 |
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| 1st
months rent to be submitted upon execution of the
lease. |
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1.9
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Option To
Renew: Section 22
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1.11
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(a) Address
of Landlord for rent payments (Sections 4.1, 4.2):
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Faircorp
Associates, LLC
c/o Hudson Equities Management Corp.
115 Christopher Columbus Drive, Jersey City, NJ
07302
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(b) Address of Landlord for notices. (Sections 6.3, 19):
Same as 1.11a; and with a copy to:
Harry J. Reidler, Attorney at Law, 263 Hutchinson Road, Englewood,
NJ 07631; (201) 567-0797; fax (201) 871-4847
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(c) Address of Tenant for notices (Sections 6.3,
19):
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1.14
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Landlord’s Share of Operating Expenses. (Section
6.2):
2004 Base Year Operating Expenses per rentable square foot
per year, hereby determined to be $4.50 /ft. (In that the
lease does not start until 2006 this will be adjusted to
2006.
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1.15
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Landlord's
Share of Real Estate Taxes. (Section 6.2): 2004 Base Year
Real Estate Taxes hereby determined to be $1.38
/ft.
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1.16
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Electricity.
(Section 6.4): Initial cost per foot shall be $1.50 . The
initial monthly installment shall be $1,207.50
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1.17
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Security
Deposit. (Section 7): $24,000.00 to be submitted by December 1,
2005 .
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1.18
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Use.
(Section 8.1): Standard office use and computer repair and
assembly
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1.19
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Brokers.
(Section 25.20):
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1.20
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Prepaid
Rent. NONE .
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1.22
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Addendum(s).
(Sections 3.2, 4.3, 9.2, 22): The following addendum(s) are
attached to this Lease: NONE .
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This Lease
consists of _____ articles on _____ pages, plus Exhibits A, B, C,
and D.
| Faircorp Associates, LLC |
Infotech USA, Inc., Tenant |
| By: |
/s/ Ephraim Hasenfeld
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By: |
/s/ J. Robert Patterson
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Ephraim Hasenfeld, Member |
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| Date: |
4/14/05
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Date: |
4/14/05
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2.1 Definition . Landlord
hereby leases to Tenant and Tenant leases from Landlord for the
term, at the rental, and upon all of the conditions set forth
herein, that certain real property known by suite number and
address specified in Section 1.2 hereof, consisting of the
approximate amount of rentable square feet specified in Section 1.3
hereof, and which is referred to herein as the Premises. The
Premises are located in an office building presently consisting of
the total number of rentable square feet specified in Section 1.4
hereof, which office building, the real property on which it is
situated (the legal description of which is attached hereto as
Exhibit A), and any parking facilities or structures appurtenant
thereto are hereinafter collectively referred to as the
“Building”. The Premises are depicted in Exhibit B
attached hereto and incorporated herein by this reference, but the
depiction of possible uses, tenants or locations on Exhibit B shall
not be construed to be a warranty or representation by Landlord
that any such uses, tenants or locations presently exist or will
continue to exist. Tenant’s share of the total amount of
square feet of the Building is equal to the pro-rata share
specified in Section 1.5 hereof, and said percentage shall
hereinafter be referred to as the Tenant’s “Pro-Rata
Share”. |
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2.3 Public Areas . As long
as this Lease remains in effect and Tenant is not in default
hereunder, Tenant shall have the nonexclusive right, in common with
the Landlord, other tenants, subtenants and invitees, to use the
public areas of the Building which consist of the entrance foyer
and lobby of the Building, the common corridors on the floor of the
Building on which the Premises are situated and other areas
appurtenant to or servicing the elevators, shipping and receiving
areas and lavatories in the Building, provided that Landlord shall
have the right at any time and from time to time to exclude
therefrom such areas as Landlord may determine so long as access to
the Premises is not unreasonably denied. |
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3.1 Term . The term of
this Lease shall be the term specified in Section 1.6 hereof,
commencing on the Commencement Date specified in Section 1.7 hereof
and ending on the Expiration Date specified in Section 1.8 hereof
unless sooner terminated pursuant to any provision of this
Lease. |
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3.2 Delay in Commencement
. Notwithstanding said Commencement Date, if for any reason
Landlord cannot deliver possession of the Premises to Tenant on
said date, Landlord shall not be subject to any liability therefor,
nor shall such failure affect the validity of this Lease or the
obligations of Tenant hereunder. However, in such case Tenant shall
not be obligated to pay rent until possession of the Premises is
tendered to Tenant, which date shall be the new Commencement Date,
and the Expiration Date shall be adjusted to reflect the term
listed in 1.6. Upon Landlord’s request, the parties agree to
execute in writing an Addendum to certify the Commencement Date and
Expiration Date hereof, but this Lease shall not be affected in any
manner if either party fails or refuses to execute such
Addendum. |
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3.3 Prior to the Commencement
Date, Landlord at its cost and expense shall do the work set forth
in Exhibit C attached hereto. |
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3.5 Holding Over . If
Tenant remains in possession of the Premises or any part thereof
after the expiration date specified in Section 1.8, such occupancy
shall be a tenancy from month to month at a monthly rental equal to
one hundred fifty percent (150%) of the Base Rent and Additional
Rent payable hereunder. The foregoing provisions of this Section
3.5 shall neither be construed to give the Tenant any right to
remain in possession of the Premises or any part thereof after the
expiration of the term hereof nor to waive any of the
Landlord’s rights under this Lease to collect any damages to
which it may be entitled, whether direct or
consequential. |
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4.1 Base Rent . The Base
Rent for the Premises for the term of this Lease shall be as
specified in Section 1.9, payable in the monthly installments
specified therein, in advance, on the first day of each month of
the term hereof; Tenant shall pay Landlord upon the execution of
this Lease the sum specified in Section 1.9 as the installment of
Base Rent for the first full calendar month of the term of the
Lease. Provided, however, that if the Commencement Date does not
occur on the first day of a month, the aforesaid payment shall be
for the initial thirty (30) days of the Lease and the next monthly
installment of |
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Base Rent shall be due on the first day of the first full
calendar month of the term but shall be prorated to cover only
those days of said calendar month not previously paid by the Tenant
by its initial payment. Base Rent for any period during the term
hereof which is less than one (1) calendar month shall be a pro
rata portion of the monthly installment based upon the actual
number of days the Lease is in effect during said calendar month.
All rents shall be payable in lawful money of the United States of
America without notice or demand and without any deduction, offset
or abatement, and shall be payable to Landlord at the address
stated in Section 1.11(a) or to such other persons or at such other
places as Landlord may designate in writing. The payment of Base
Rent hereunder shall be an independent covenant. |
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4.2 Additional Rent . Both
Tenant and Landlord expressly understand and agree that all other
sums, excepting Base Rent as described in Sections 4.1 and 5, which
may from time to time become due under this Lease, shall be deemed
Additional Rent. Additional Rent shall include, but not be limited
to, late charges, interest, Shared Expenses as described in Section
6, attorneys’ fees, security deposits and any cash bonds
which may by circumstance be required to be posted hereunder. Both
Tenant and Landlord expressly understand and agree that all monies
paid by Tenant hereunder shall be first credited to Additional Rent
(and allocated among different items of Additional Rent as Landlord
may determine), and only then to Base Rent. All payments of
Additional Rent shall be in lawful money of the United States of
America, shall be paid without any deduction, offset or abatement,
and shall be payable to Landlord at the address stated in Section
1.11(a) or to such other persons or at such other places as
Landlord may designate in writing. The obligation to make payments
of Additional Rent hereunder shall be an independent
covenant. |
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4.3 Storage . Tenant
agrees to pay to Landlord the amount of Additional Rent for storage
as set forth in any Storage Space Addendum incorporated in this
Lease, in advance for each month on the first day of each month of
the term hereof. Unless Tenant executes a Storage Space Addendum,
Tenant shall have no right to use any storage facilities of the
Building. |
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4.4 Acceptance of Rental
Payments . No acceptance by Landlord of a lesser sum than the
Base Rent and/or Additional Rent then due shall be deemed to be
other than on account of the earliest amount of such rental due
(unless Landlord elects otherwise), nor shall any endorsement or
statement on any check or any letter accompanying any check or
payment as rent be deemed an accord and satisfaction or compromise
and settlement, and Landlord may accept such check or payment
without prejudice to Landlord’s right to recover the balance
of such payments due or to pursue any other remedy as provided in
this Lease. |
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5.1 Determination .
Intentionally Omitted |
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5.2 Indexing .
Intentionally Omitted |
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6.1 Determination . The
monthly obligations for Additional Rent as described in Section 4.2
shall be annually adjusted in accordance with the provisions of
Section 6.2 below. |
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6.2 Escalations . (a)
Landlord agrees to expend as its share of Operating Expenses paid
for and sustained by the Landlord during any calendar year an
amount not greater than that specified in Section 1.14. Said sum
shall constitute the maximum payable by Landlord as its
contribution toward Operating Expenses. The term “Operating
Expense” means the total amounts paid or payable, whether by
the Landlord, or otherwise, on behalf of the Landlord, in
connection with the ownership, leasing, management, maintenance,
repair and operation of the Building, other than those expenses
described in Section 6.2(b). Operating Expense shall include,
without limiting the generality of the foregoing, the aggregate of
the amount paid for heating, air conditioning, and providing
electricity and water and sewer charges to the Building, other than
that paid by individual tenants, the amount paid to any persons or
entities for all labor and/or wages (including the cost to Landlord
of workmen’s compensation and disability insurance, payroll
taxes, welfare and fringe benefits), for services rendered, and
materials provided to the Building; administrative expenses related
to the Building; any costs incurred for any capital improvements or
structural repairs to the Building to effect labor savings or
otherwise reduce Operating Expenses, or required by law or by any
governmental or quasi-governmental authority having jurisdiction
over the Building, which costs shall be amortized over the useful
life of the applicable capital improvements or structural
repairs; |
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the cost of accounting services necessary to compute the rent
and charges payable by tenants of the Building; fees for management
services pertaining to the Building; the cost of guards and other
protection services; and the amount paid for premiums for all
insurance procured by Landlord to insure the Building as may be
required or permitted under this Lease (including, without
limitation, business interruption insurance (why?), and if there is
a mortgage or deed of trust on the Building, such insurance as may
be required by the holder of such mortgage or deed of trust).
Notwithstanding the foregoing, Operating Expenses shall not include
the costs of special services rendered to tenants (including
Tenant) for which a special or separate charge is made, any costs
of preparation of space for new tenants in the Building, any costs
borne directly by Tenant under this Lease, leasing commissions,
depreciation or interest payments, or debt service payments made to
a mortgagee. Notwithstanding anything to the contrary contained in
this Lease, Landlord’s obligation to pay in any calendar
year, as Landlord’s share of Operating Expenses paid for and
sustained by the Landlord during any calendar year, an amount not
greater than that specified in Section 1.14, is subject to and
contingent upon the Building being fully occupied at the end of the
calendar year in question. If the Building is not fully occupied at
the end of any calendar year of the term of this Lease, then
Landlord’s obligation to pay Operating Expenses in such
calendar year in an amount not greater than that specified in
Section 1.14, for purposes of this Section 6.2, shall be determined
as if the Building had been fully occupied during that entire
calendar year (“grossed up”) and Operating Expenses had
been in an amount which would be normal if the Building were fully
occupied. For the purposes of this Lease, the term “fully
occupied” means the occupancy of 90% of the Total Building
Area (as specified in Section 1.4 hereof). Landlord, in its sole
discretion, will determine which Operating Expenses are appropriate
to “gross up” for purposes of this Section 6.2.
Landlord shall consistently apply all “gross
ups”. |
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(b) Landlord agrees to expend as its share of
Real Estate Taxes paid for and sustained by the Landlord during any
calendar year an amount not greater than that specified in Section
1.15. Said sum shall constitute the maximum payable by Landlord as
its contribution toward Real Estate Taxes. Real Estate Taxes shall
include general and special taxes, assessments, duties and levies,
charged and levied upon or assessed against the Building and/or any
improvement situated on the real property on which the Building
stands, any leasehold improvement, fixtures, installations,
additions and equipment used in the maintenance or operation of the
Building, whether owned by Landlord or Tenant, not paid directly by
the Tenant. Further, if at any time during the term of this Lease,
the method of taxation of real estate prevailing at the time of
execution hereof shall be or has been altered so as to cause the
whole or any part of the taxes now or hereafter levied, assessed or
imposed on real estate to be levied, assessed or imposed upon
Landlord, wholly or partially, as a capital levy or otherwise, or
on, or measured by the rents received from the Building, then such
new or altered taxes attributable to the Premises shall be deemed
to be included within the term “Real Estate Taxes” for
purposes of this paragraph. The reference to “Building”
in this subparagraph shall include, as allocated by the Landlord,
improvements or facilities utilized in common by the Building and
other buildings upon or adjacent to the real property on which the
Building stands. |
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(c) Commencing one (1) year after the
Commencement Date, and continuing thereafter during the term of
this Lease, Tenant shall pay to Landlord monthly in advance on the
first day of each month, without notice or demand and without any
deduction, offset or abatement, in lawful money of the United
States of America, the amount of the Tenant’s Pro-Rata Share
of the Shared Expenses as estimated by Landlord to be incurred for
the calendar year in which the monthly payments are to be made. If
the Expiration Date is not December 31, the monthly payments owing
hereunder during the last partial calendar year of the Lease shall
be appropriately adjusted. The term “Shared Expenses”
shall mean the amount by which Operating Expenses and Real Estate
Taxes incurred in any period exceed the amount of Landlord’s
obligation for the same as specified in Section 1.14 and
1.15. |
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(d) In
each calendar year after the year in which the Commencement Date
occurs, Landlord shall send to Tenant a Landlord’s Statement
which shall set forth the actual amount of Shared Expenses, with
the exception of those States in which real estate taxes are billed
on other than a calendar year basis, in that event Landlord’s
statement of Real Estate Taxes will be based on the Real Estate Tax
Fiscal Year and sent within a reasonable time after receipt of Real
Estate Tax Statements, and Tenant’s Pro-Rata Share thereof
for the preceding calendar year or portion thereof and the
estimated amount of Shared Expenses and Tenant’s Pro-Rata
Share thereof for the calendar year in which the Landlord’s
Statement is given. Landlord’s failure to render a
Landlord’s Statement with respect to any period shall not
eliminate or reduce Tenant’s obligation to pay Shared
Expenses and shall not prejudice Landlord’s right to render a
Landlord’s Statement with respect to any subsequent period.
The obligations of Tenant under the provisions of this paragraph
with respect to any increase in rent shall survive the expiration
or any sooner termination of the term of the Lease. Within fifteen
(15) days next following the |
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notification by Landlord
of the contents of its Landlord’s Statement, Tenant shall pay
to Landlord the entire amount of Tenant’s Pro-Rata Share of
actual Shared Expenses for the prior period covered by the
Landlord’s Statement less the amount of Shared Expenses
actually paid by Tenant for said period, plus Tenant shall also
then pay to Landlord such amount as is necessary to assure that,
through the calendar month in which the Landlord’s Statement
is given, the Tenant has paid to Landlord the full amount of
estimated Shared Expenses for the calendar year in which
Landlord’s Statement is given, as if the Landlord’s
Statement were given on January 1 of said calendar year. For each
month following for the remainder of said calendar year, Tenant
shall pay the monthly estimated Shared Expenses set forth in the
Landlord’s Statement. In the event that the estimated
payments made by the Tenant in the calendar year preceding the date
on which the Tenant is given notice of the Landlord’s
Statement exceed the Tenant’s Pro-Rata Share of actual Shared
Expenses for such calendar year, then should the Tenant not be
otherwise in default hereunder, the amount of such excess shall be
applied by the Landlord to the next succeeding installments of
monthly estimated payments of Shared Expenses. |
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6.3 Statements . Nothing
in this Lease shall be construed to require Landlord to render the
statements described in Sections 5.2 and 6.2 simultaneously or in
any particular order. All reasonable determinations by Landlord
pursuant to Section 6 shall be presumed to be correct. Until Tenant
is advised of the adjustment in its obligation to pay Shared
Expenses, if any, pursuant to the provisions of Section 6.2,
Tenant’s monthly rental shall continue to be paid at the then
current rent (including all prior adjustments thereto pursuant to
this Lease). Upon written notice to Landlord of not less than
fifteen business days, Tenant shall have the right to review the
documentation relied upon by Landlord relating to the computation
of Shared Expenses, which review shall occur at the location
specified in Section 1.11(b). All Shared Expenses shall be computed
on the actual basis. In computing Shared Expenses, no cost or
expense may be accounted more than once, any expenses which are
paid by the proceeds of insurance shall be excluded, and any
expenses which are separately metered or billed directly to and
separately paid by any other tenant shall be excluded. Tenant shall
have the right to cause an audit to be made of Landlord’s
computation of Shared Expenses, at the location of the Corporate
Office in Jersey City, NJ, at Tenant’s sole expense, not more
frequently than once per calendar year. Tenant shall not be
entitled to withhold or deduct any portion of Base Rent or
Additional Rent during the pendency of any such audit. Any errors
disclosed by such audit shall be promptly corrected, provided that
Landlord shall have the right to cause another independent audit to
be made of such computations. In the event that there is a
disagreement between such audits, the parties shall submit such
matter to binding mediation. |
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6.4 Electricity .
Beginning on the earlier of the date that Tenant first occupies the
Premises or the Commencement Date, and continuing thereafter during
the term of this Lease, Tenant shall pay to Landlord monthly in
advance on the first day of each month, without notice or demand
and without any deduction, offset or abatement, in lawful money of
the United States of America, the amount per foot set forth in
Section 1.16 multiplied by the Usable area in the Premises, for
electrical usage in the Premises, payable in 12 equal monthly
installments per annum. In the event electrical rates charged by
the local utility are increased, or if it is determined by an
electrical usage survey that the Tenant is using more electricity
that it is currently paying for, then the Landlord shall have the
right to increase the charge for electricity commensurate with the
rate increase or the determination of the survey. |
| 7.1 |
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Tenant agrees to submit a security deposit upon the execution
of this Lease in the amount set forth in Section 1.17 to the
Landlord. The Security Deposit will not be held in an escrow
account and Tenant shall not be entitled to interest on
it. |
| 7.2 |
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Upon fourteen (14) days notice, the Landlord may deduct from
the Security any expenses incurred in connection with the
Tenant’s violation of any agreement in this Lease. If the
amount of damage exceeds the Security, the Tenant shall pay the
additional amount to the Landlord on demand. The amount of Security
is to remain constant throughout the Term and replenished in the
event such expenses are deducted. Security is not to be used for
the payment of Rent. |
| 7.3 |
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Tenant is to leave the Premises in good condition upon
vacating. All Rent and Additional Rent is to be paid in full within
fourteen (14) days after leaving the Premises. In the event that
the Premises is not left in good condition, or Rent and Additional
have not been paid in full, Landlord may deduct such amounts to put
the Premises in good condition and satisfy any outstanding balances
of Rent and Additional Rent pursuant to this Lease. The Landlord
shall repay to the Tenant any balance remaining within thirty (30)
days after the end of the Term. |
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8.1 Use . The Premises
shall be used and occupied only for the uses specified in Section
1.18 hereof, provided that the foregoing shall not be construed as
a representation or guarantee by the Landlord that such business
may lawfully be conducted on the Premises. |
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8.2 Compliance With Law .
In the event it is determined by the applicable governmental unit
that the Premises violates any building code, regulation or
ordinance, then it shall be the obligation of the Landlord, after
written notice from Tenant which includes a copy of the
governmental unit’s determination, to promptly, at
Landlord’s sole cost and expense, rectify any such violation.
In the event Tenant does not give to Landlord written notice of any
such violation within thirty (30) days from the date on which
Tenant is notified, then the correction of the same shall be the
obligation and expense of the Tenant. |
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8.3 Waste and Nuisance .
Tenant shall not commit, suffer or permit any waste, damage,
disfiguration or injury to the Premises, the common areas in the
Building, or the fixtures and equipment located therein or thereon.
Tenant shall not permit or suffer any overloading of the floors
thereof, and shall not place therein any heavy business machinery,
safes, computers, data processing machines, or other items heavier
than customarily used for general office purposes without first
obtaining the written consent of Landlord. Tenant shall not use or
permit to be used any part of the Building for any dangerous,
noxious or offensive trade or business, and shall not cause or
permit any nuisance, noise, action, or disturbance of other
tenants, in, at or on the Premises. Tenant shall be permitted to
install a small satellite dish for use in corporate communication
with its home office. The size and location of the dish must meet
with Landlord’s approval prior to installation, such approval
not to be unreasanobly withheld. |
| |
8.4 Conditions of Premises
. Except as provided in Section 8.2, Tenant hereby accepts the
Premises in their condition existing as of the date of the
commencement hereof, subject to all applicable zoning, municipal,
county and state laws, ordinances and regulations governing and
regulating the use of the Premises, and accepts this Lease subject
thereto and to all matters disclosed thereby and by any exhibits
attached hereto. In addition, except as provided in Section 8.2,
Tenant shall at Tenant’s expense, comply promptly with all
applicable laws, statutes, ordinances, rules, regulations, orders,
restrictions of record, and requirements in effect during the term
or any part of the term hereof regulating the use by Tenant of the
Premises. |
| |
8.5 Insurance Cancellation
. Notwithstanding the provisions of Section 8.2 hereinabove, no use
shall be made or permitted to be made of the Premises, nor acts
done which will cause the cancellation of any insurance policy
covering said Premises or the Building, and if Tenant’s use
of the Premises causes an increase in said insurance rates, Tenant
shall pay any such increase as Additional Rent, which, together
with interest on any amount paid therefor by Landlord, shall be
payable by Tenant on the next succeeding date on which a Base
Rental payment is due. |
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8.6 Landlord’s Rules and
Regulations . Tenant shall faithfully observe and comply with
the reasonable rules and regulations that Landlord shall from time
to time promulgate, including without limitation any rules and
regulations attached to this Lease, which are hereby incorporated
herein by this reference. Landlord reserves the right from time to
time to make all reasonable modifications to said rules and
regulations. The additions and modification to those rules and
regulations shall be binding upon Tenant upon Landlord giving
notice of them to Tenant. Landlord shall not be responsible to
Tenant for the nonperformance of any of said rules and regulations
by any other tenants or occupants. |
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9.1 Basic Services .
Subject to any law, rule or governmental order or regulation, and
further subject to any circumstance beyond the control of the
Landlord, Landlord shall furnish the following services at its cost
and expense: |
|
(a)
Air conditioning and heat, whichever be required, from 8 a.m. to 6
p.m., Monday through Friday, excluding legal holidays;
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(b)
Hot and cold water for lavatory purposes and electric current for
lighting the Premises and for ordinary office appliances and office
machines only, provided that Tenant shall not use any electrical
equipment which in Landlord’s opinion will overload the
wiring insulations or interfere with the use thereof by Landlord or
any other tenant in the Building. If a further supply of water is
required by Tenant, then at Tenant’s expense,
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Landlord shall have the option to install and maintain a water
meter to register such consumption, and Tenant shall pay as
Additional Rent for water consumed, at the cost to Landlord, and
for sewer rents and all other rents and charges based upon such
consumption of water;
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(c)
General day-to-day janitorial service (excluding carpet shampooing
and hard surface floor waxing) five days a week, and elevator
service during the same hours for which air conditioning and heat
services are provided as set forth above, provided, however, that
in the event Tenant is delinquent in making any installment payment
of rent under this Lease for a period of fifteen (15) days or more
after it shall become due, Landlord may discontinue furnishing any
or all of the services described in this Section 9 until all
arrears of rental payments, plus interest and late charges and any
other sums due under this Lease, shall have been paid in full.
Whenever heat generating machines or equipment are used by Tenant
in the Premises which affect the temperature otherwise maintained
by the air conditioning system, as determined by Landlord, Landlord
reserves the right to install supplementary air conditioning units
in the Premises, and the costs therefor, including the cost of
installation, operation and maintenance thereof, shall be paid by
Tenant to Landlord upon demand by Landlord. If Tenant, as
determined by Landlord, requires electric current in excess of that
usually furnished or supplied to the Premises, Landlord may, at its
election, either cause an electric current meter to be installed in
the Premises so as to measure the electric current consumed for
such excess use or determine the value of such excess use by
causing an independent electrical engineer or consulting firm,
selected by Landlord, to conduct a survey of Tenant’s use of
electric current and to certify such determination in writing to
Landlord and Tenant. The cost of any such survey or installation
and maintenance of such meter shall be borne by Tenant if the
survey or meter indicates excess use by Tenant. Additionally,
Tenant agrees to pay to Landlord, as Additional Rent, promptly upon
demand therefor by Landlord, the amount determined to be due for
the electric current consumed by Tenant, as shown by said meter or
as indicated in said survey, as the case may be, at the rate
charged for such service by the local public authority or the local
public utility, as the case may be, furnishing the same, plus any
additional expenses incurred by Landlord in keeping account of the
electric current consumed.
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(d)
Notwithstanding anything in this Lease to the contrary, Tenant will
not without the prior written consent of Landlord use any apparatus
or device in the Premises that will in any way increase the amount
of electricity or water usually furnished or supplied for use of
the Premises as general office space. Tenant shall not connect with
any electric current except through existing electrical outlets in
the Premises, or to any water pipes, any apparatus or device for
the purposes of using electric current or water. If Tenant shall
require water or electric current in excess of that usually
furnished or supplied for use of the Premises, Tenant must first
procure the written consent of Landlord to the use thereof. With
the prior written consent of Landlord, Tenant may maintain and
operate data processing equipment on the Premises, but all
additional costs in connection therewith (including, but not
limited to, additional support flooring, insulation, electrical
outlets and temperature maintenance facilities) shall be borne
solely by Tenant and the utility services utilized by or for such
equipment shall be separately metered and the cost of such utility
services with metering shall be borne solely by Tenant. At
Tenant’s request and with Landlord’s prior approval,
Landlord shall furnish the services described in this Section at
times other than specified in Section 9.1 (a), provided that Tenant
shall pay the entire cost thereof as reasonably determined by
Landlord as Additional Rent, notwithstanding the fact that such
services may also benefit portions of the Building other than the
Premises (in which event Landlord shall not receive collectively
from all tenants paying for any portion of such additional services
more than the actual cost to Landlord of providing the
same).
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9.2 Interruption of
Services . Landlord reserves the right from time to time to
install, use, maintain, repair, replace and relocate service to the
Premises and other parts of the Building, and to alter or relocate
any other facility in the Building. Interruption or curtailment of
any service maintained in the Building, if caused by strikes,
mechanical difficulties, actions of the Landlord under the first
sentence of this Section 9.2, or for any other reason beyond
Landlord’s control, shall not entitle Tenant to any claim
against Landlord or to any abatement in rent, nor shall the same
constitute constructive or partial eviction. Unless due to the
gross negligence of Landlord, Landlord shall not be liable to
Tenant for any injury or damage resulting from defects in the
plumbing, heating, or electrical systems in the Building or for any
damage resulting from water seepage into the Building or for any
act or failure to act by any other Tenants at the Building or for
any damage resulting from wind storm, hurricane or rain
storm. |
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10.
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MAINTENANCE, REPAIRS AND ALTERATIONS .
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10.1 Landlord’s
Obligations . Subject to the provisions of Sections 8.2 and 14,
and except for damage caused by any negligent or intentional act or
omission of Tenant, Tenant’s agents, employees,
representatives, customers or invitees, in which event Tenant shall
repair the damage, at its sole expense, Landlord shall keep in good
order, condition and repair the structural portions of the Building
and those portions of the Building which are not occupied or leased
by any tenant, and all costs incurred by Landlord in making any
such repairs or performing such maintenance shall be Operating
Expenses as defined in Section 6.2, provided that Landlord shall
have no obligation to perform any act which is the obligation of
Tenant or any other tenant in the Building. Other than as
specifically provided in this Section 10.1, Landlord shall not be
obligated to make any repairs or improvements of any kind, in,
upon, about, or to the Premises or the Building. |
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10.2 Tenant’s
Obligations . Subject to the provisions of Sections 8.2 and 14,
Tenant, at Tenant’s expense, shall keep in good order,
condition and repair the Premises and every part thereof including,
without limiting the generality of the foregoing, all plumbing,
electrical and lighting facilities and equipment within the
Premises, fixtures, interior walls and interior surfaces of
exterior walls, ceilings, windows, doors, plate glass and skylights
located within the Premises. All repairs made by the Tenant shall
be at least of the same quality, design and class as that of the
original work. Tenant agrees that it will abide by, keep and
observe all reasonable rules and regulations which Landlord may
make from time to time for the management, safety, care and
cleanliness of the Building and grounds, the parking of vehicles
and the preservation of good order therein as well as for the
convenience of other occupants and tenants of the Building. All
damage or injury to the Building or to the Premises, fixtures,
appurtenances and/or equipment caused by the Tenant moving property
in or out of the Building or the Premises or by Tenant’s
installation or removal of furniture, fixtures, or other property,
or from any other cause of any kind or nature whatsoever due to
carelessness, omission, neglect, improper conduct, or other cause
of the Tenant, its agents, employees, invitees, contractors or
subcontractors shall be repaired, restored, or replaced promptly by
the Tenant at its sole cost and expense to the satisfaction of the
Landlord. In the event that the Tenant fails to keep the Premises
in good order, condition and repair while this Lease remains in
effect, then as soon as possible after written demand (which
written demand shall not be required in the case of an emergency),
Landlord may restore the Premises to such good order and condition
and make such repairs without liability to Tenant for any loss or
damage that may accrue to Tenant’s property or business by
reason thereof, and upon completion thereof Tenant shall pay to
Landlord upon demand and as Additional Rent the cost of restoring
the Premises to such good order and condition, together with
interest thereon from the date paid. Bulb replacement when
necessary shall be at the expense of the Tenant. |
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10.3 Surrender . On the
last day of the term hereof or on any sooner termination or date on
which Tenant ceases to possess the Premises, Tenant shall surrender
the Premises to Landlord in good and clean condition, ordinary wear
and tear excepted. Prior to such surrender Tenant shall repair any
damage to the Premises occasioned by its removal of trade fixtures,
furnishings and equipment, which repair shall include the patching
and filling of holes and repair of structural damage. Tenant agrees
to indemnify Landlord and hold Landlord harmless from and against
any liability (including reasonable attorneys’ fees) of
Landlord to third parties resulting from Tenant’s failure to
timely comply with the provisions of this Section 10.3. |
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10.4 Alterations and
Additions . (a) Tenant shall not, without Landlord’s
prior written consent, make any alterations, improvements or
additions (referred to collectively herein as
“Alterations”) in, on or about the Premises. Landlord
may require that Tenant remove any or all of said Alterations at
the expiration of the term or such other time at which Tenant
ceases to possess the Premises, and restore the Premises to their
prior condition. Should Tenant make any Alterations without the
prior approval of the Landlord, Landlord may require that Tenant
immediately remove any or all of such items and/or Landlord may
declare a default by Tenant under this Lease. Except in connection
with normal interior decorating of the Premises, Tenant shall not
place any holes in any part of the Premises, and in no event shall
Tenant place any exterior or interior signs or interior drapes,
blinds, or similar items visible from the outside of the Premises
without the prior written approval of Landlord. |
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(b)
Any Alterations in, on or about the Premises that Tenant shall
desire to make shall be presented to Landlord in written form with
proposed detailed plans. If Landlord shall give its consent, the
consent shall be deemed conditioned upon Tenant acquiring a permit
to do the work from appropriate governmental agencies, the
furnishing of a copy thereof to Landlord prior to the commencement
of the work and the compliance by Tenant with all conditions of
said permit and with all specifications in the plans in a prompt
and expeditious manner. Tenant shall not permit any of the work to
be performed by persons not currently licensed under any applicable
licensing laws or regulations pertaining to the types of work to be
performed. Landlord shall not be deemed
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unreasonable in the exercise of its discretion for withholding
approval of any Alterations which involve or might affect any
structural or exterior element of the Building, any area or element
outside of the Premises, or any facility serving any area of the
Building outside of the Premises, or which will require unusual
expense to re-adapt the Premises to normal office use on the
termination or expiration of the Lease, unless in the latter case
Tenant either desires to or is required to make repairs or
Alterations in accordance with this Lease, Landlord may require
Tenant, at Tenant’s sole cost and expense, to obtain and
provide to Landlord a lien and completion bond (or such other
applicable bond as determined by Landlord) in an amount equal to
one and one-half (1-1/2) times the estimated cost of such
improvements, to insure Landlord against liability including but
not limited to liability for mechanic’s and
materialmen’s liens and to insure completion of the
work.
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(c)
Tenant shall pay, when due, all claims for labor or materials
furnished or alleged to have been furnished to or for Tenant at or
for use in the Premises, which claims are or may be secured by any
mechanic’s or materialmen’s lien against the Premises
or the Building. Tenant shall give Landlord not less than ten (10)
days notice prior to the commencement of any work in, on or about
the Premises, and Landlord shall have the right to post notices of
non-responsibility in, on or about the Premises as provided by law.
Tenant shall have no power or authority to do any act or make any
contract that may create or be the basis for any lien upon the
interest of the Landlord, the Premises or the Building, or any
portion thereof. If any mechanics or other lien or any notice of
intention to file a lien shall be filed or delivered with respect
to the Premises or the Building, based upon any act of the Tenant
or of anyone claiming through the Tenant, or based upon work
performed or materials supplied allegedly for the Tenant, Tenant
shall cause the same to be canceled and discharged of record within
fifteen (15) days after the filing or delivery thereof. If Tenant
has not so canceled the lien within fifteen (15) days as required
herein, Landlord may pay such amount, and the amount so paid
together with interest thereon from the date of payment and all
legal costs and charges, including attorneys fees, incurred by
Landlord in connection with said payment and cancellation of the
lien or notice of intent shall be Additional Rent and shall be
payable on the next succeeding date on which a Base Rental
installment is due. Landlord may, at its option and without waiving
any of its rights set forth in the immediately preceding sentence,
permit Tenant to contest the validity of any such lien or claim,
provided that in such circumstances the Tenant shall at its expense
defend itself and Landlord against the same and shall pay and
satisfy any such adverse judgment that may be rendered thereon
before the enforcement thereof against the Landlord, the Premises
or the Building, provided further that Landlord may at any time
require the Tenant to deposit with the court exercising
jurisdiction over such claim, such amount as may be necessary under
applicable statutes to cause the release and discharge of the lien,
and if Tenant shall not immediately make such payment upon the
request of Landlord, Landlord may make said payment and the amount
so paid, together with interest thereon from the date of payment
and all legal costs and charges, including attorneys fees, incurred
by Landlord in connection with said payment shall be deemed
Additional Rent and shall be payable on the next succeeding date on
which a Base Rental installment is due. In addition, Landlord may
require Tenant to pay Landlord’s attorney fees and costs in
participating in such action if Landlord shall decide it is in its
best interest to do so. Nothing herein contained shall be construed
as a consent on the part of Landlord to subject the interest and
estate of Landlord to liability under any lien law of the state in
which the Premises are situated, for any reason or purpose
whatsoever, it being expressly understood that Landlord’s
interest and estate shall not be subject to such liability and that
no person shall have any right to assert any such lien.
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(d)
Unless Landlord requires their removal, as set forth in Section
10.4(a), all Alterations which may be made on the Premises shall,
at the expiration of the term or such other time at which Tenant
ceases to possess the Premises, become the property of Landlord and
remain upon and be surrendered with the Premises. Notwithstanding
the provisions of this Section 10.4(d), Tenant’s machinery
and equipment, other than that which is affixed to the Premises so
that it cannot be removed without material damage to the Premises,
shall remain the property of Tenant and may be removed by Tenant
subject to the provisions of Section 10.3 hereof and provided
further that Tenant is not in default under this Lease at the time
Tenant ceases to possess the Premises.
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11.
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TENANT’S USE OF PUBLIC AREAS .
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Tenant’s non-exclusive use of the public areas described
in Section 2.3 shall be subject to such Reasonable Rules and
Regulations promulgated by Landlord pursuant to Section 8.6. Tenant
agrees to repair at its cost all deteriorations or damages to the
public areas occasioned by its negligence or intentional misconduct
or that of its officers, agents, representatives, customers,
employees or invitees. |
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12.
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TAXES
AND TELEPHONE .
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12.1 Personal Property
Taxes . Tenant shall pay prior to delinquency all taxes
assessed against and levied upon leasehold improvements, fixtures,
furnishings, equipment and all other personal property of Tenant
contained in the Premises or elsewhere. If Tenant shall cause said
leasehold improvements, trade fixtures, furnishings, equipment and
all other personal property to be assessed with Landlord’s
real property, Tenant shall pay Landlord the taxes attributable to
Tenant within ten (10) days after receipt of a written notice from
Landlord setting forth the taxes applicable to Tenant’s
property, and if Tenant fails to do so, Landlord may make such
payment and the amount so paid, together with interest thereon from
the date paid, shall be Additional Rent and shall be due and
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