Exhibit 10.25


 


LEASE AGREEMENT


 


by and between


 


DUN &
BRADSTREET, INC.


 


Landlord


 


and


 


JACKSON HEWITT
TAX SERVICE, INC.


 


Tenant


 


 


* * * * * *


 


The mailing, delivery or negotiation of this
Lease shall not be deemed an offer to enter into any transaction or to enter
into any relationship, whether on the terms contained herein or on any other
terms.  This Lease shall not be binding,
nor shall either party have any obligations or liabilities or any rights with
respect thereto, or with respect to the premises, unless and until both parties
have executed and delivered this Lease. 
Until such execution and delivery of this Lease, either party may
terminate all negotiation and discussion of the subject matter hereof, without
cause and for any reason, without recourse or liability.


 


* * * * * *


 





















 


Table of Contents


 


	
  ARTICLE I BASIC LEASE PROVISIONS;
  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  ARTICLE II PREMISES

  	
   

  
	
   

  	
   

  
	
  ARTICLE III TERM; DELIVERY OF POSSESSION;
  CONDITION OF PREMISES

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  IV RENT

  	
   

  
	
   

  	
   

  
	
  ARTICLE V OPERATING CHARGES AND REAL ESTATE
  TAXES

  	
   

  
	
   

  	
   

  
	
  ARTICLE VI USE OF PREMISES

  	
   

  
	
   

  	
   

  
	
  ARTICLE VII ASSIGNMENT AND SUBLETTING

  	
   

  
	
   

  	
   

  
	
  ARTICLE VIII MAINTENANCE AND REPAIRS;
  COMPLIANCE WITH LAWS

  	
   

  
	
   

  	
   

  
	
  ARTICLE IX ALTERATIONS

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  X SIGNS

  	
   

  
	
   

  	
   

  
	
  ARTICLE XI SECURITY DEPOSIT

  	
   

  
	
   

  	
   

  
	
  ARTICLE XII LANDLORD’S INSPECTION OF AND
  ACCESS TO THE PREMISES

  	
   

  
	
   

  	
   

  
	
  ARTICLE XIII INSURANCE

  	
   

  
	
   

  	
   

  
	
  ARTICLE XIV SERVICES AND UTILITIES

  	
   

  
	
   

  	
   

  
	
  ARTICLE XV LIABILITY OF LANDLORD

  	
   

  
	
   

  	
   

  
	
  ARTICLE
  XVI RULES

  	
   

  
	
   

  	
   

  
	
  ARTICLE XVII DAMAGE OR DESTRUCTION

  	
   

  
	
   

  	
   

  
	
  ARTICLE XVIII CONDEMNATION

  	
   

  
	
   

  	
   

  
	
  ARTICLE XIX DEFAULT

  	
   

  
	
   

  	
   

  
	
  ARTICLE XX BANKRUPTCY

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXI SUBORDINATION: ATTORNMENT: ESTOPPEL
  CERTIFICATES

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXII HOLDING OVER; END OF TERM

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXIII RIGHTS OF LANDLORD

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXIV PARKING

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXV ENVIRONMENTAL

  	
   

  



 


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  ARTICLE XXVI BROKERS

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXVII NOTICES

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXVIII [INTENTIONALLY OMITTED]

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXIX SUCCESSORS AND ASSIGNS:
  LANDLORD’S LIABILITY

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXX GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  
	
  ARTICLE XXXI RIGHT OF FIRST OFFER

  	
   

  



 


ii





















 


LEASE
AGREEMENT


 


THIS LEASE
AGREEMENT (this “Lease”) is dated as of the 1st day of May, 2005, by
and between Dun & Bradstreet, Inc., a Delaware corporation (“Landlord”),
and Jackson Hewitt Tax Service, Inc., a Delaware Corporation with offices
located at 7 Sylvan Way, Parsippany, New Jersey (“Tenant”).


 


ARTICLE I

BASIC LEASE PROVISIONS; DEFINITIONS


 


1.1           Additional
Rent: as defined in Section 4.2.


 


1.2           Base
Rent:


 


	
  Period

  	
   

  	
  Annual Base Rent

  	
   

  	
  Monthly Base Rent

  	
   

  	
  Base Rent Per

  Rentable Square Foot

  	
   

  
	
  11/16/05-10/31/07

  	
   

  	
  $

  	
  1,151,501.00

  	
   

  	
  $

  	
  95,958.42

  	
   

  	
  $

  	
  25.25

  	
   

  
	
  11/01/07-10/31/08

  	
   

  	
  $

  	
  1,242,709.00

  	
   

  	
  $

  	
  103,559.08

  	
   

  	
  $

  	
  27.25

  	
   

  
	
  11/01/08-10/31/10

  	
   

  	
  $

  	
  1,288,313.00

  	
   

  	
  $

  	
  107,359.42

  	
   

  	
  $

  	
  28.25

  	
   

  
	
  11/01/10-10/31/12

  	
   

  	
  $

  	
  1,379,521.00

  	
   

  	
  $

  	
  114,960.08

  	
   

  	
  $

  	
  30.25

  	
   

  



 


1.3           Brokers:
CB Richard Ellis and Coldwell Banker Commercial, NRT.


 


1.4           Building:
the office building located at 3 Sylvan Way, Parsippany, New Jersey.


 


1.5           Intentionally
Deleted


 


1.6           Building
Holidays: Any or all of the following, at Landlord’s sole discretion:
Sundays, New Year’s Day, Memorial Day, the Friday before Memorial Day,
Independence Day, Labor Day, the Friday before Labor Day, Columbus Day, Veteran’s
Day, Thanksgiving Day and Christmas Day; and any days prior or subsequent to
such holidays which are commonly designated as non-business days by employers
in the Geographic Area (as hereinafter defined) - (for example, the Friday
after Thanksgiving; Friday, when Christmas falls on a Thursday; etc.).


 


1.7           Building
Hours: 8:30 a.m. to 6:00 p.m., Monday through Friday and 8:30 a.m. to 1:00
p.m. on Saturday (excluding Building Holidays), and such additional hours, if
any, as Landlord may from time to time designate at its sole discretion.  Tenant shall have access to the Premises
twenty-four (24) hours, seven (7) days a week.


 


1.8           Building
Structure and Systems: as defined in Section 8.1.


 


1.9           Commencement
Date: May 1, 2005.


 


1.10         Common
Areas: those interior areas of the Building devoted to corridors, elevator
foyers, rest rooms, mechanical rooms, janitorial closets, electrical and
telephone closets, vending areas, property management offices and lobby areas
(whether at ground level or otherwise), and the like, as well as those exterior
portions of the Property including parking


 


F-2





















 


areas, access driveways, roadways, sidewalks, plazas, landscaped areas,
traffic lights, storm drainage facilities, sanitary sewer, domestic and fire
water systems, fire protection installations, electric power and telephone
cables and lines and other utility connections, facilities and other similar improvements
(above and below ground), and such other areas and facilities which now exist
or may hereafter be constructed in, on, or upon the Building or the Land which
are intended for the common use or benefit of tenants and occupants of the
Building and their respective employees. 
Tenant acknowledges and understands that as a result of changes in the
layout of the Common Areas from time to time occurring due to, by way of
example and not by way of limitation, the rearrangement of corridors, the
aggregate of all tenant proportionate shares may be equal to or less than one
hundred percent (100%).


 


1.11         Complex:  All land and improvements located at the
following street addresses in Parsippany, New Jersey: 1 Sylvan Way, 3 Sylvan
Way, 5 Sylvan Way and 7 Sylvan Way.


 


1.12         CPI:  Consumer Price Index as published by the U.S.
Department of Labor, All Urban Consumers (CPI-U), New York-Northern N.J.-Long
Island, NY-NJ-CT-PA.


 


1.13         Default
Interest Rate: a rate of interest equal to the greater of twelve percent (12%)
per annum or the rate per annum which is four (4) percentage points higher than
the prime rate published in the Money Rates section of the Wall Street Journal,
Northeast Edition, but in no event shall such rate exceed the maximum legal
rate then allowed by applicable Legal Requirements with respect to breaches
under commercial contracts.


 


1.14         Environmental
Laws: as defined in Section 25.1(a).


 


1.15         Event
of Default: as defined in Section 19.1.


 


1.16         Expiration
Date: 6:00 p.m. on October 31, 2012, subject to earlier termination of the
Term as provided in this Lease.


 


1.17         Geographic
Area: Central/Northern New Jersey.


 


1.18         Guarantor(s):
any person(s) or entity(ies) hereafter executing a written guaranty of, thereby
becoming a guarantor of Tenant’s obligations under, this Lease.  On the date hereof there is no Guarantor and
none is contemplated by this Lease.


 


1.19         Hazardous
Materials: as defined in Section 25.1(a).


 


1.20         Improvement
Allowance: $691,560 ($15.16 per rentable square foot), with up to $189,708
($4.16 per rentable square foot) of such Improvement Allowance available for Tenant
soft costs (including, without limitation, the costs and expenses incurred by
Tenant in connection with the acquisition and installation of Tenant’s
low-voltage cabling, furniture, fixtures and equipment and telephone switch
equipment) and the remainder available for Tenant hard costs (including,
without limitation, the costs and expenses incurred by Tenant in connection
with architectural design and construction management) for the initial Tenant
Improvement Work, as more fully set forth in Exhibit B.


 


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1.21         Insurance
Requirements: all rules, regulations, orders, requirements and recommendations
made by the Board of Fire Underwriters and any insurance organizations or
associations with appropriate authority, and/or insurance companies insuring
the Property, as the same may be amended from time to time.


 


1.22         Land:
the land upon which the Building and Common Areas are constructed.


 


1.23         Landlord’s
Agents: collectively, any managing agent of the Property, any Mortgagee of
Landlord, and any employees, officers, directors, partners, shareholders or
agents of Landlord, or of any such managing agent, or Mortgagee of Landlord.


 


1.24         Landlord
Notice Address: Dun & Bradstreet, Inc., 103 JFK Parkway, Short Hills,
New Jersey 07078, Attention: Real Estate Director, concurrently with a
duplicate copy to McCarter & English, LLP, Four Gateway, 100 Mulberry
Street, Newark, New Jersey 07102, Attention: Martin F. Dowd, Esq. and Dun &
Bradstreet, Inc., 103 JFK Parkway, Short Hills, New Jersey 07078, Attention:
Legal Department.


 


1.25         Landlord
Payment Address: Dun & Bradstreet, Inc., 899 Eaton Avenue, Bethlehem,
Pennsylvania 18025, Attention: Real Estate Department.


 


1.26         Lease
Year: a period of twelve (12) consecutive months commencing on the
Commencement Date, and each successive twelve (12) month period thereafter.


 


1.27         Legal
Requirements: all present and future laws (including, without limitation,
Title III of the Americans with Disabilities Act of 1990 [the “ADA”] and the
regulations promulgated thereunder), ordinances (including without limitation,
zoning ordinances and land use requirements), regulations, orders and
recommendations now or hereafter in effect, of whatever nature, of any and an
federal, state, county, municipal and/or other authorities with appropriate jurisdiction
over the Property, as the same may be amended from time to time.


 


1.28         Maximum
Connected Load:  The current electrical
load capacity provided to the Premises, but in no event less than four (4)
watts per rentable square foot of connected load capacity for tenant use
including tenant lighting and power loads, excluding HVAC.


 


1.29         Mortgage:
any mortgage, deed of trust or other security instrument, and any ground lease,
master lease or other superior leasehold interest which may now or hereafter
encumber the Property or any portion thereof.


 


1.30         Mortgagee:
the holder of any Mortgage.


 


1.31         Operating
Charges: Agreed to be $6.00 per rentable square foot for the first Lease
Year which are included in Base Rent. 
The Operating Charges shall be subject to yearly adjustment upward (but
not downward) to reflect the annual percentage change in the CPI.  Each such adjustment shall be accomplished
(and shall be effective for the entire then operative Lease Year) by
multiplying the Operating Charges for the Lease Year immediately preceding the
next subsequent Lease Year (the “Operating Charge Adjustment Date”) by a
fraction.  The numerator of the fraction
shall be the CPI figure for the month that is two (2) months prior to the
Operating Charge Adjustment Date.  The
denominator of the fraction shall be the CPI figure


 


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for the month that is two (2) months prior to the Operating Adjustment
Date for the previous Lease Year. 
Notwithstanding the foregoing, in no event shall any percentage increase
in Operating Charges for any Lease Year be less than two percent (2%) or
greater than four and one-half percent (4 1⁄2%). 
Operating Charges shall include the following items: (1) electricity for
the Common Areas, (2) sewer, (3) water, (4) HVAC, (5) janitorial services as
set forth in Exhibit D attached hereto, (6) repair and maintenance of Common
Areas and Building equipment, (7) snow removal, (8) repairs to the parking lot,
(8) exterior landscaping maintenance, (9) Building property and other Landlord insurance
as set forth herein, (10) administration and management of the Building and the
Property, (11) cost of all other obligations required to be performed and all
other services required to be provided by Landlord under this Lease, except as
otherwise expressly stated herein.


 


1.32         Parking
Spaces: one hundred fifty-one (151) parking spaces in the Parking Area as
defined in Section 24.1, one hundred thirty (130) of which shall be on an
unreserved basis, fifteen (15) of which spaces shall marked as reserved
underground parking area (as set forth on Schedule 1.31 attached hereto) and
six (6) of which shall be marked as visitor spots (as also set forth on
Schedule 1.31 attached hereto).  Landlord
may, at Tenant’s sole cost and expense, provide signage or striping as
determined in Landlord’s reasonable discretion to designate Tenant’s twenty-one
(21) aggregate reserved underground and visitor spaces.


 


1.33         Permitted
Use: as defined in Section 6.1(a).


 


1.34         Premises:
those premises which the parties agree contain Forty Five Thousand Six Hundred
Four (45,604) square feet of rentable space, comprising the entire third (3rd) floor of the Building, as
more particularly designated on Exhibit A.


 


1.35         Property:
the Land, the Building, and any other improvements now or hereafter located on
the Land, collectively.


 


1.36         Real
Estate Taxes: as defined in Section 5.2.


 


1.37         Renewal
Option: Two (2) terms of five (5) years each, as set forth in Exhibit F
attached hereto and made a part hereof.


 


1.38         Rent:
as defined in Section 4.2(a).


 


1.39         Rent
Commencement Date: November 16, 2005.


 


1.40         Security
Deposit: (i) Initially, One Million and 00/100 Dollars ($1,000,000) for the
duration of the first Lease Year, (ii) Seven Hundred Fifty Thousand and 00/100
Dollars ($750,000.00) for the duration of the second Lease Year, and (iii) Five
Hundred Thousand and 00/100 Dollars ($500,000.00) for the duration of the third
Lease Year, and (iv) Zero and 00/100 Dollars ($0.00) for the duration of the Term
(provided no Event of Default exists beyond any applicable notice or cure
period at the end of the third Lease Year), as may be extended pursuant to the
provisions of Exhibit F.


 


1.41         Tax
Base Year: The Real Estate Taxes required to be paid the period from July
1, 2005 through June 30, 2006, as invoiced pursuant to the final tax bill for Calendar
Year 2005.


 


F-5





















 


1.42         Tenant
Billing Address: 3 Sylvan Way, Parsippany, New Jersey 07078, Attention: Peter
Karpiak.


 


1.43         Tenant
Notice Address: 7 Sylvan Way, Parsippany, New Jersey 07078, Attention: Peter
Karpiak, until the Commencement Date, after which the Tenant Notice Address
shall be at the Premises, concurrently with a duplicate copy at the Premises to
Steven L. Barnett, Senior Vice President and General Counsel.


 


1.44         Tenant’s
Agents: any assignee or subtenant of Tenant, and any employee, agent,
contractor, invitee, client, licensee, customer or guest of Tenant or any
assignee or subtenant of Tenant.


 


1.45         Tenant
Improvement Work: as defined in Exhibit B.


 


1.46         Tenant’s
Proportionate Share: 30.7%.


 


1.47         Term:
as defined in Section 3.1.


 


ARTICLE II

PREMISES


 


2.1           Tenant
leases the Premises from Landlord, and Landlord leases the Premises to Tenant,
for the Term.  In addition thereto,
Tenant shall have the non-exclusive right to use the Common Areas (as the same
may be designated by Landlord from time to time) during the Term, subject to
and upon the terms and conditions of this Lease including, without limitation,
the rules and regulations from time to time promulgated by Landlord or any
managing agent of the Building.  Notwithstanding
the foregoing, or any other provision of this Lease, Tenant’s non-exclusive
right to use the Common Areas shall not include the right to use the roof,
exterior walls, land beneath the Building, mechanical rooms, electrical
closets, janitorial closets, telephone rooms, or any other portions of the
Common Areas not generally made available to all tenants of the Building,
except to the extent specifically provided in this Lease.  Landlord agrees to reasonably cooperate with
Tenant in the removal of existing telecommunications wiring not being utilized
by Landlord in connection with other portions of the Building, if required by
Tenant, and permitting Tenant to utilize, on a non-exclusive basis, those
shafts, columns and conduits within such Building as may be reasonably designated
by Landlord and which are located within the Common Areas of the Building for
the purpose of permitting Tenant to install wiring for such telecommunications services
reasonably required for Tenant’s use of its Premises (including roof
telecommunications equipment as permitted herein).  The installation of any such wiring any
conduit therefor (including obtaining any necessary permits and approvals for
such installation) shall be performed by Tenant at Tenant’s sole cost and
expense.  Tenant shall be responsible for
the removal of any and all wiring in the ceiling, shafts, columns and conduits
of the Premises which will not be utilized by Tenant during the term of the
Lease.  Landlord shall be responsible at
Landlord’s expense for removal (if required by Legal Requirements or by Tenant
for installation of Tenant’s wiring serving the Premises) and/or management of
any and all wiring in the ceiling of the second floor of the Building which is
not needed by Tenant to service the Premises and which will be cut by Tenant
with the


 


F-6





















 


cooperation of Landlord.  Landlord
and Tenant shall reasonably cooperate in the installation and removal of any
and all existing wiring in the floor of the Premises and the ceiling of the
second floor of the Building.  Tenant
shall have the right to install wiring in the ceiling of the second floor of
the Building in cooperation with Landlord, provided that Tenant shall in no way
disturb or interfere with any existing wiring currently in the ceiling of the
second floor of the Building which serves any other portion of the Building,
and Tenant shall perform any such installation during non-Building Hours.


 


ARTICLE III

TERM; DELIVERY OF POSSESSION; CONDITION OF PREMISES


 


3.1           This
Lease and all of its provisions shall be in full force and effect from and
after the date first above written (which date, unless otherwise expressly
provided herein, shall be the date on which the last of Landlord or Tenant
executes and delivers this Lease).  The
term of this Lease (“Term”) shall commence on the Commencement Date and shall
end on the Expiration Date, unless the Term shall sooner terminate, pursuant to
the provisions of this Lease, or be extended pursuant to the provisions of
Exhibit F.


 


3.2           In
consideration of Tenant’s obligations under this Lease, Landlord hereby conveys
to Tenant during the Term, all of Landlord’s ownership interest in the
personalty located within the Premises, as listed on Exhibit H attached hereto
(the “Personalty”).  Landlord makes no
representations or warranties as to the physical condition or title to the
Personalty (except that (i) Landlord is the sole owner of the Personalty, and
(ii) the Personalty is free from any liens and encumbrances), Tenant agreeing
to accept such Personalty “as is.”  Landlord
shall have no obligation during the Term hereof to insure or otherwise repair
or replace any of the Personalty as a result of any casualty, theft or other
loss or damage thereto.  Upon the early
termination, if applicable, of the Term hereof, Tenant shall remove all
remaining Personalty from the Premises.  Upon
the full execution of this Lease by all parties, the Personalty shall
automatically and without any action by Tenant become the sole property of
Tenant; provided that if requested by Tenant, Landlord shall deliver to Tenant
a bill of sale for such Personalty transferring the Personalty to Tenant in its
then “as is” condition, without any representation and warranty as to the
condition of the Personalty.


 


3.3           Subsequent
to the Commencement Date, Tenant shall cause the Tenant Improvement Work to be
Substantially Completed in accordance with and upon the terms and conditions
set forth in Exhibit B hereof.  Landlord
shall have no obligation to alter, improve, decorate or otherwise prepare the
Premises, the Building or the Land for Tenant’s occupancy.  Except as expressly set forth herein, neither
Landlord nor Landlord’s Agents have made any representations or promises with
respect to the physical condition of the Building or the Property.  Notwithstanding anything contained to the
contrary herein, Tenant’s taking of possession of the Premises as of the
Commencement Date shall constitute Tenant’s acknowledgment that the Premises
and the Building are in good condition.


 


3.4           Possession
of the Premises will be delivered to Tenant on the Commencement Date, which
date is subject to extension due to Force Majeure and Tenant delays, broom
clean, vacant (except for the Personalty) and free of personal property (other
than the Personalty) and


 


F-7





















 


rubbish.  If Landlord does not,
for any reason, deliver possession of the Premises on or before the Commencement
Date, Landlord shall not have any liability therefor, and this Lease shall not
be rendered void or voidable.  Tenant
shall not be entitled to use or occupy any portion of the Premises for conduct
of Tenant’s business prior to Substantial Completion of the Tenant Improvement
Work without Landlord’s prior written consent, unless otherwise expressly
provided in this Lease.  Notwithstanding
the foregoing, in the event Tenant completes all Tenant Improvement Work and
receives all necessary governmental approvals for Tenant’s occupancy
(including, without limitation, a certificate of occupancy) prior to the Rent
Commencement Date, Tenant shall be permitted to occupy the Premises prior to
the Rent Commencement Date without payment of Base Rent hereunder, provided,
however, Tenant shall be required to pay any and all “Additional Rent” as set
forth in Article IV herein.


 


ARTICLE IV

RENT


 


4.1           From
and after the Rent Commencement Date, Tenant shall pay the Base Rent in twelve
(12) equal monthly installments in advance on the first day of each month,
without any offset, abatement, defense, claim, counterclaim or deduction
whatsoever.  Simultaneously with Tenant’s
execution of this Lease, Tenant shall pay an amount equal to One Hundred
Thousand and 00/100 Dollars ($100,000.00), which amount shall be credited
toward the monthly installment of Base Rent and Additional Rent payable for the
first full calendar month of the Term.  If
the Rent Commencement Date is not the first day of a calendar month, then the
Base Rent from the Rent Commencement Date until the first day of the following
calendar month shall be prorated on a per diem basis at the rate of
one-thirtieth (1/30th) of the monthly installment of the Base Rent payable
during the first Lease Year, and Tenant shall pay such prorated installment of
the Base Rent on or before the Rent Commencement Date.  If the Expiration Date of this Lease is not
the last day of a calendar month (other than by reason of Tenant’s default),
then Base Rent for such month shall be prorated on a per diem basis at the rate
of one-thirtieth (1/30th) of the monthly installment of the Base Rent payable
during the Lease Year in which the Lease terminates.


 


4.2           (a)           Any
item of rent, or other fee or charge owed by Tenant to Landlord hereunder,
other than Base Rent, and any cost, expense, damage or liability incurred by
Landlord for which Tenant is liable hereunder, shall be considered “Additional
Rent” payable pursuant to this Lease, without any offset, abatement, defense,
claim, counterclaim or deduction whatsoever and shall, unless a different time
period is specifically provided herein, be paid by Tenant within ten (10) days
after an invoice therefor is given to Tenant. As used herein, the term “Rent”
shall mean, collectively, all Base Rent and Additional Rent.


 


(b)           If
any payment of Base Rent, Additional Rent or any other sum is not received at
the Landlord Payment Address (or such other address as Landlord may designate
in writing) within five (5) days after the date such payment is due hereunder
(without regard to any cure period specified in Section 19.1 below), then
Tenant shall pay to Landlord, as Additional Rent and as an agreed-upon amount
of liquidated damages and not as a penalty, a late charge equal to five percent
(5%) of the amount of such payment. In addition, such late payment shall bear
interest at the Default Interest Rate from the fifteenth (15th) day after the date such
payment


 


F-8





















 


became due until the date on which Landlord receives full payment
thereof (inclusive of all accrued interest thereon).


 


4.3           All
sums payable by Tenant under this Lease, whether or not stated to be Base Rent,
Additional Rent or otherwise, shall be paid to Landlord in legal tender of the
United States at the Landlord Payment Address, or to such other party or such
other address as Landlord may designate in writing.  Landlord’s acceptance of Rent after it shall
have become due and payable hereunder shall not constitute a waiver of any of
Landlord’s rights hereunder with respect to such late payment or excuse such
late payment or any subsequent late payment of Rent.  If any sum payable by Tenant under this Lease
is paid by check and such check is returned due to insufficient funds, stop
payment order, or otherwise, then such event shall be treated as a failure to
pay such sum when due and, in addition to all other rights and remedies of
Landlord hereunder, Landlord shall be entitled to impose a returned check fee
of Fifty Dollars ($50.00) to cover Landlord’s administrative expenses and
overhead for processing same, and further, Landlord may require that all future
payments of Rent be remitted by money order or cashier’s or certified check.


 


4.4           At
any time during the Term Tenant may, at Tenant’s option, make all payments of
Base Rent and/or recurring monthly items of Additional Rent by way of automatic
monthly electronic transfer from an account designated by Tenant to an account
designated by Landlord.  In such event, Tenant
shall complete and provide to Landlord and the financial institutions involved
in said electronic transfer any and all required paperwork to effectuate this
automatic monthly transfer.


 


ARTICLE V

OPERATING CHARGES AND REAL ESTATE TAXES


 


5.1           (a)           Commencing
on the first anniversary of the Rent Commencement Date and thereafter for the
remainder of the Term, Tenant shall pay to Landlord, as Additional Rent, the
amount of the increase in Operating Charges for the applicable Lease Year determined
in accordance with Section 1.29 over the Operating Charges for the first Lease
Year (“Operating Charges Escalation”), which first Lease Year Operating Charges
are deemed to be $6.00 per rentable square foot.


 


(b)           Tenant
shall make monthly payments to Landlord on account of the Operating Charges
Escalation, commencing on the First Anniversary of the Rent Commencement Date
and on the first day of each month thereafter, which amounts shall constitute
Additional Rent hereunder.   On or before
the end of each Lease Year, or as soon thereafter as is feasible, Landlord
shall submit a statement (“Annual Operating Charges Statement”) to Tenant,
showing the Operating Charges Escalation for such Lease Year.  If Landlord fails to provide the Operating
Charges Statement by the applicable date provided herein, Landlord shall not be
deemed to have waived its right to thereafter provide such statement.


 


F-9





















 


5.2           (a)           Commencing
on July 1, 2006 and thereafter for the remainder of the Term, Tenant shall pay,
as Additional Rent, Tenant’s Proportionate Share of the amount by which Real
Estate Taxes for each twelve month period falling entirely or partially within
the Term following the Tax Base Year exceeds the Base Year Real Estate Taxes
(hereinafter referred to as the “Real Estate Taxes Escalation”).  “Real Estate Taxes” shall mean (1) all real
estate taxes, vault and/or public space rentals, business district or arena
taxes, special user fees, rates, and assessments (including general and special
assessments, if any), ordinary and extraordinary, foreseen and unforeseen, or
any payments in lieu of or in substitution for such taxes, which are imposed
upon Landlord or assessed against the Property or any portion(s) thereof or
Landlord’s personal property used in connection therewith, (2) any other
present or future taxes or governmental charges that are imposed upon Landlord
or assessed against the Property or any portion(s) thereof which are in the
nature of or in substitution for or in addition to real estate taxes, including
any tax levied on or measured by the rents payable by tenants of the Building,
and (3) reasonable out-of-pocket expenses (including, without limitation,
reasonable attorneys’ and consultants’ fees and court costs) incurred by or on
behalf of Landlord in reviewing, protesting or seeking a refund or reduction of
Real Estate Taxes, whether or not such protest is ultimately successful, or
such refund or reduction is ultimately granted (Tenant hereby acknowledging and
agreeing that Tenant shall not under any circumstances be entitled to appeal or
otherwise contest Real Estate Taxes, such rights of appeal and contest being
wholly reserved to Landlord in its sole and absolute discretion).  Real Estate Taxes shall not include any
inheritance, estate, gift, franchise, corporation, income or net profits tax
assessed against Landlord from the operation of the Property, unless same is
imposed in substitution for any real estate taxes which constitute “Real Estate
Taxes”.  The term “Base Year Real Estate
Taxes” shall mean those Real Estate Taxes incurred for the Property (or deemed
to have been incurred pursuant to the immediately preceding sentence) during
the Tax Base Year.


 


(a)           Tenant
shall make estimated monthly payments to Landlord on account of Tenant’s
Proportionate Share of the Real Estate Taxes Escalation.  For each twelve month period following the Tax
Base Year, Landlord may submit a statement to Tenant setting forth, on an
annualized basis, Landlord’s reasonable estimate of Real Estate Taxes for such
period (“Estimated Tax Statement”) and Tenant’s Proportionate Share of the Real
Estate Taxes Escalation for the forthcoming year.  Tenant shall pay to Landlord as Additional
Rent on the first day of each month following receipt of such Estimated Tax
Statement, until Tenant’s receipt of any succeeding Estimated Tax Statement, an
amount equal to one-twelfth (1/12) of Tenant’s Proportionate Share of the Real
Estate Taxes Escalation as shown on such Estimated Tax Statement.  From time to time during any calendar year,
Landlord may revise Landlord’s estimate of Real Estate Taxes and adjust Tenant’s
monthly payments to reflect Landlord’s revised estimate, in which event Tenant
shall pay, along with the next monthly payment due, the difference, if any,
between the aggregate amount of Tenant’s estimated payments theretofore made on
account of the Real Estate Taxes Escalation during such calendar year, and the
amount which would have been payable by Tenant during such calendar year had
Landlord billed Tenant for the revised monthly amount for such prior elapsed
months during such calendar year.  Thereafter,
Tenant shall pay the revised monthly estimate in accordance with the provisions
of this Section 5.2(b).  Within
approximately one hundred twenty (120) days after the end of each calendar
year, or as soon thereafter as is feasible, Landlord shall submit a statement (“Annual
Tax Statement”) to Tenant, showing (1) the amount of Real Estate Taxes incurred
during the preceding year, (2) Tenant’s Proportionate Share of the Real Estate
Taxes Escalation for such


 


F-10





















 


year, and (3) the aggregate amount of Tenant’s
estimated payments made on account of the Real Estate Taxes Escalation during
such year.  If the Annual Tax Statement
indicates that the aggregate amount of such estimated payments made by Tenant
exceeds Tenant’s actual liability for the Real Estate Taxes Escalation, then
Landlord shall, at Landlord’s option, either credit the overpayment toward
Tenant’s next monthly payment(s) of Real Estate Taxes due hereunder, or
promptly refund such overpayment to Tenant.  If the Annual Tax Statement indicates that
Tenant’s actual liability for Real Estate Taxes exceeds the aggregate amount of
such estimated payments made by Tenant, then Tenant shall pay the deficient
amount to Landlord as Additional Rent within ten (10) days after such Annual
Tax Statement is given to Tenant.  If
Landlord fails to provide the Estimated Tax Statement or the Annual Tax
Statement by the applicable dates provided herein, Landlord shall not be deemed
to have waived its right to thereafter provide such statements.


 


(b)           In
addition to Tenant’s Proportionate Share of the Real Estate Taxes Escalation,
Tenant shall also be liable for any portion of the Real Estate Taxes (and not
simply any increase over the Base Year Real Estate Taxes) imposed upon the
Property during the Term which is attributable to improvements in the Premises
or the Property constructed by or on behalf of Tenant or at Tenant’s expense
and for which the taxing authority has assigned an increase in valuation in
computing the assessed valuation of the Property (“Extra Taxes”).  Tenant shall pay to Landlord as Additional
Rent 100% of the amount of such Extra Taxes within ten (10) days after issuance
of an invoice therefor or, at Landlord’s option, such Extra Taxes may be
included as a component of the Estimated Tax Statement and Annual Tax
Statement, and paid pursuant to Section 5.2(b) above.


 


5.3           Tenant
shall pay before delinquency, directly to the applicable taxing authority, any
business, rent or other taxes or fees that are now or hereafter levied, assessed
or imposed upon Tenant’s use or occupancy of the Premises, the conduct of
Tenant’s business at the Premises, or Tenant’s equipment, fixtures,
furnishings, inventory or personal property at the Property. In the
alternative, if any such tax or fee is enacted or altered so that same is
levied against Landlord or so that Landlord is responsible for collection or
payment thereof, then Tenant shall pay the amount of such tax or fee to
Landlord as Additional Rent within ten (10) days after issuance by Landlord of
an invoice therefor.


 


5.4           If
the Term commences or expires on a day other than the first day or the last day
of a calendar year, respectively, then Tenant’s liabilities pursuant to
Sections 5.1 and 5.2 above for such calendar year shall be apportioned by
multiplying the respective amount of Tenant’s Proportionate Share of Real
Estate Taxes Escalation thereof for the full calendar year by a fraction, the
numerator of which is the number of days during such calendar year falling
within the Term, and the denominator of which is three hundred sixty (360).


 


5.5           Landlord
reserves the right to change the accounting period for Real Estate Taxes, or
both, to each consecutive twelve (12) month period commencing on the
Commencement Date or such other date as Landlord shall designate by notice to
Tenant.


 


5.6           Landlord
represents that the Building has been fully assessed as a completed structure
by the appropriate taxing authority.


 


F-11





















 


ARTICLE VI

USE OF PREMISES


 


6.1           (a)           Tenant
shall use and occupy the Premises solely for general, executive and administrative
offices in a manner compatible with first-class office buildings of the type
and quality located in the Geographic Area (“Permitted Use”).  In all events, the Permitted Use shall not
include: (i) offices of any agency or bureau of the United States or any state
or political subdivision thereof; (ii) offices or agencies of any foreign
government or political subdivision thereof which are entitled to any diplomatic
or other form of sovereign immunity or otherwise not amenable to service of
process in New Jersey; (iii) offices of any health care professionals,
including, without limitation, doctors’ offices and laboratories; (iv) schools
or other training facilities (provided that Tenant shall be permitted to use
the Premises for employee training seminars related to Tenant’s business,
subject to Tenant’s obligation to comply with all Building rules and
regulations); (v) retail or restaurant uses; (vi) broadcast studios or other
broadcast production facilities, such as radio and/or television stations;
(vii) offices at which deposits or bills are regularly paid in person by
customers; (viii) personnel agencies; (ix) meeting facilities (provided that
Tenant shall be permitted to use the Premises for employee meetings related to
Tenant’s business, subject to Tenant’s obligation to comply with all Building
rules and regulations); (x) office suites or business suites; and (xi) offices
used for telemarketing or so-called “call” center purposes.  In all events, Tenant’s use of the Premises is
subject to all present and future Legal Requirement and Insurance Requirements,
and covenants, conditions, restrictions and other matters of record.


 


(b)           Tenant
shall not use or occupy the Premises for any unlawful purpose, or in any manner
that would violate any certificate of occupancy for the Premises or the
Building, or that would constitute waste, nuisance or unreasonable annoyance to
Landlord or any other tenant or occupant of the Building, or that would
overload the plumbing or mechanical systems of the Premises or the Building, or
exceed the floor load which any floor in the Premises was designed to carry,
and Tenant shall not permit or suffer the emission of objectionable odors or
noise.


 


(c)           If
any Legal Requirement necessitates obtaining an occupancy or use permit or
license for the Premises or the operation of the business conducted therein,
Tenant shall obtain and keep current such permit or license at Tenant’s
expense, and shall promptly deliver a copy thereof, including copies of all
renewals thereof, to Landlord.  Tenant
shall not conduct any sales, promotions, advertising, special events or any
other business activities of any nature whatsoever, whether inside or outside of
the Premises, other than as expressly provided by the Permitted Use.


 


ARTICLE VII

ASSIGNMENT AND SUBLETTING


 


7.1           (a)           Tenant
shall not assign or transfer (collectively, “assign”) this Lease or all or any
of Tenant’s rights hereunder or interest herein by operation of law or
otherwise, or sublet or otherwise license or permit anyone to use or occupy
(collectively, “sublet”) the Premises or any part thereof, or mortgage, pledge,
hypothecate or otherwise encumber (collectively,


 


F-12





















 


“encumber”) this Lease, without, in each case, obtaining the prior
written consent of Landlord, which consent in the case of an assignment or
sublease shall not be unreasonably withheld, conditioned or delayed.  Any attempted assignment or encumbrance of this
Lease or of all or any of Tenant’s rights hereunder or interest herein, and any
attempted sublet or permission to use or occupy the Premises or any part
thereof, other than in accordance with this Article VII, shall be void and of
no force or effect and shall constitute an immediate Event of Default
hereunder.  No assignment, subletting or
encumbrance, or Landlord’s consent thereto, or Landlord’s collection or
acceptance of rent from any assignee, subtenant or other party, shall be
construed as a waiver or release of the initial named Tenant (or any prior
assignees or Guarantors hereunder) from any of its or their liabilities or
obligations under this Lease, and all of such parties shall remain jointly and
severally primarily liable hereunder, notwithstanding anything to the contrary
contained in this Lease or any guaranty of this Lease. In addition,  Landlord’s consent to any proposed assignment,
subletting or encumbrance shall not be construed to relieve Tenant or any
permitted assignee, subtenant or other party from the obligation of obtaining
Landlord’s prior written consent to any subsequent assignment, subletting (or
sub-subletting, as the case may be) or encumbrance.  As security for this Lease, Tenant hereby
assigns to Landlord the rent due from any subtenant or other occupant of the
Premises.  For any period during which
Tenant is in default hereunder, Tenant hereby authorizes each such subtenant or
other occupant to pay said rent directly to Landlord upon receipt of notice from
Landlord specifying same.  Landlord’s
collection of such rent shall not be construed as either an approval of such
occupancy under this Article VII (if Tenant has theretofore failed to comply
with the provisions of this Article VII) or an acceptance of such subtenant or
other occupant as a tenant.  Tenant shall
reimburse Landlord for all expenses (including reasonable attorneys’ fees and
accounting costs) incurred by Landlord in connection with Tenant’s request to
assign or encumber this Lease, or sublet all or any part of the Premises, which
amounts shall be paid within ten (10) days after Landlord’s written demand
therefor, whether or not Landlord consents thereto.  Any assignment, sublease or encumbrance shall
be effected on forms approved in advance by Landlord, which approval of the
form shall not be unreasonably withheld, conditioned or delayed.


 


(b)           If
at any time during the Term Tenant desires to assign this Lease or sublet all
or part of the Premises, then Tenant shall notify Landlord at least forty-five
(45) days in advance (“Tenant’s Request Notice”) and advise Landlord of: the
identity of the proposed assignee, or subtenant and a description of its
business; the terms of the proposed assignment or subletting; the commencement
date of the proposed assignment or subletting (the “Proposed Transfer
Commencement Date”); if, applicable, the area proposed to be sublet (the “Proposed
Sublet Space”); the most recent financial statement or other evidence of
financial responsibility of such proposed assignee or subtenant; and a
certification executed by Tenant and such party stating whether or not any
premium or other consideration is being paid for the assignment, or sublease
(and, if any premium or other consideration is being paid; stating in reasonable
detail the amount and calculation thereof).  Provided that Tenant is not in default under
any provision of this Lease beyond applicable notice, grace and cure periods,
and subject to Landlord’s rights pursuant to Section 7.3 below, Landlord shall
not unreasonably withhold its consent to a proposed assignment of this Lease or
a proposed subletting of the Premises, by the initial named Tenant hereunder.  Without limitation, Landlord may withhold such
consent if, in the reasonable exercise of its judgment, it determines that:


 


F-13





















 


(i) the use of
the Premises pursuant to such assignment or sublease would not be in compliance
with Article VI hereof; or


 


(ii) the
proposed assignee or subtenant is not of a type and quality consistent and
compatible with first-class office buildings located in the Geographic Area
(and the tenants of such buildings); or


 


(iii) Landlord
is not reasonably satisfied with the financial condition of the proposed
assignee under any such assignment or the proposed sublessee under any such
sublease; or


 


(iv) the
proposed assignee’s or subtenant’s occupancy will cause an excessive density of
traffic or make excessive demands on the services, maintenance or facilities of
the Building or the Common Areas; or


 


(v) the
proposed assignee or subtenant is a tenant in the Building at the time of
Landlord’s receipt of Tenant’s Request Notice, or a party with whom Landlord or
its affiliates has negotiated for the leasing of office space within the
Geographic Area during the immediately preceding six (6) months; or


 


(vi) in the
course of seeking an assignee, subtenant or other occupant of its space, Tenant
has publicly advertised (or permitted the public advertisement of) a rental
rate that is lower than the rental rate then payable by Tenant pursuant to this
Lease; or


 


(vii) in the
case of a sublease, more than fifty (50%) percent of the Premises is then
occupied, or would after the consummation of the proposed sublet be occupied,
by a party(ies) other than the Tenant named herein; or


 


(viii) it
wishes to recapture the space as provided in Section 7.3.


 


7.2           If
Tenant or any Guarantor of this Lease is a partnership, then any event (whether
voluntary, involuntary or by operation of law) resulting in a dissolution of
Tenant or Guarantor, any withdrawal or change (whether voluntary, involuntary
or by operation of law) of any partners owning a controlling interest in Tenant
or Guarantor (including each general partner), or any structural or other
change having the effect of limiting the liability of the partners, however
accomplished, whether in a single transaction or in a series of related or
unrelated transactions, shall be deemed a voluntary assignment of this Lease
subject to the provisions of this Article VII.  If Tenant or Guarantor is a corporation (or a
partnership with a corporate general partner), then any event (whether
voluntary, involuntary or by operation of law) resulting in a dissolution,
merger, consolidation or other reorganization of Tenant or Guarantor (or its
respective corporate general partner(s), or the sale or transfer or
relinquishment of the interest of shareholders who, as of the date of this
Lease, own a controlling interest of the capital stock of Tenant or Guarantor
(or its respective corporate general partner(s), however accomplished, whether
in a single transaction or in a series of related or unrelated transactions,
shall be deemed a voluntary assignment of this Lease subject to the provisions
of this Article VII; provided, however, that the foregoing provision shall not
apply to corporations whose stock is traded through a nationally recognized
exchange or over-the-counter market.  If
Tenant


 


F-14





















 


or Guarantor is a limited liability company, then any dissolution of
Tenant or Guarantor, or a withdrawal or change, whether voluntary, involuntary
or by operation of law, of members owning a controlling interest in Tenant or
Guarantor, however accomplished, whether in a single transaction or in a series
of related or unrelated transactions, shall be deemed a voluntary assignment of
this Lease, subject to the provisions of this Article VII.  In addition, a transfer of all or
substantially all of the assets of Tenant or Guarantor (whether Tenant or
Guarantor is a partnership, corporation or other type of entity) either by
merger, consolidation, or otherwise (however accomplished, whether in a single transaction
or in a series of related or unrelated transactions), or a so-called “lease
takeover” agreement (that is, an agreement pursuant to which another entity
agrees to become responsible for all or part of Tenant’s obligations under this
Lease without actually entering into this Lease), shall be deemed a voluntary
assignment of this Lease, subject to the provisions of this Article VII.


 


7.3           Landlord
shall have the right in its sole and absolute discretion to: (i) terminate this
Lease in the case of any proposed assignment of this Lease; or (ii) terminate
this Lease either in its entirety or only as it relates to the Proposed Sublet
Space in the case of a proposed subletting of at least one-half (1/2) of the
Premises; or (iii) to terminate this Lease only as it relates to the Proposed
Sublet Space in the case of a proposed subletting of less than one-half (1/2)
of the Premises.  If Landlord elects to
exercise its rights under this Section 7.3, it will send Tenant written notice
of such termination within thirty (30) days after Landlord’s receipt of Tenant’s
Request Notice.  If Landlord exercises
its option to terminate this Lease only with respect to the Proposed Sublet
Space under either clause (ii) or clause (iii) above, then (a) Tenant shall
tender the Proposed Sublet Space to Landlord on the Proposed Transfer
Commencement Date in the condition required pursuant to Section 22.3 hereof, at
which time such space shall thereafter be deleted from the Premises, and (b) as
to that portion of the Premises which is not part of the Proposed Sublet Space,
this Lease shall remain in full force and effect, except that Base Rent,
Additional Rent, the number of Parking Spaces, and any other items which are
determined on a per square foot basis shall (notwithstanding anything contained
in this Lease to the contrary) be proportionately reduced, based on the amount
of square footage deleted from the Premises in relation to the total square
footage in the Premises immediately prior to such termination.  If Landlord exercises its option under either
clause (i) or clause (ii) above to terminate this Lease in its entirety, then
Tenant shall tender the entire Premises to Landlord on the Proposed Transfer
Commencement Date in the condition required pursuant to Section 22.3 hereof, at
which time the Lease shall terminate.  Notwithstanding
the foregoing provisions of this Section 7.3, Landlord shall not have the right
to terminate this Lease (either as to the entire Premises or the Proposed
Sublet Space) in the case of an assignment or sublet to any corporation or
entity which controls, is controlled by, or is under common control with
Tenant.


 


7.4           If
any sublease or assignment requires that the subtenant or assignee pay any
amount in excess of the rental and other charges due under this Lease (except
that in the case of a sublease of less than all of the Premises, such rental and
other charges shall be pro rated on a per square foot basis prior to such
calculation), then whether such excess be in the form of an increased monthly
or annual rental, a lump sum payment, payment for the sale, transfer or lease
of Tenant’s fixtures, leasehold improvements, furniture and other personal
property or services provided by Tenant to a subtenant, or any other form,
Tenant shall pay to Landlord, when received by Tenant, fifty percent (50%) of
any such excess or other premium payable with


 


F-15





















 


respect to the sublease or assignment, after deduction of ordinary and
customary transaction costs, including, but not limited to, brokerage costs,
costs of alterations to the Premises, free rent and reasonable attorneys’ fees.
 Acceptance by Landlord of any payments
due under this Section 7.4 shall not be deemed to constitute approval by
Landlord of any sublease or assignment, nor shall such acceptance waive any
rights of Landlord hereunder. Landlord shall have the right to inspect and
audit Tenant’s books and records relating to any assignment or sublease.


 


7.5           All
restrictions and obligations imposed on Tenant pursuant to this Lease shall be
deemed to extend to any assignee, subtenant, licensee, concessionaire or other
occupant or transferee, and Tenant shall cause all such parties to comply with
such restrictions and obligations.  As a
condition to the effectiveness of any assignment or subletting hereunder, Tenant
shall deliver to Landlord prior to, and as a condition of, the Proposed
Transfer Commencement Date (i) in the case of an assignment, a fully-executed
assignment and assumption agreement which provides, among other things
reasonably required by Landlord, that Tenant remains jointly, severally, and
primarily liable hereunder; and (ii) in the case of a sublet, a fully executed
sublease which provides, among other things reasonably required by Landlord,
that such sublease is; (x) subject and subordinate to all the terms and
provisions of this Lease; and (y) subject to the condition that if the Term is
terminated or Landlord succeeds to Tenant’s interest in the Premises by
voluntary surrender or otherwise then, at Landlord’s option, in its sole and
absolute discretion, the subtenant shall be bound to Landlord for the balance
of the term of such sublease and shall attorn to and recognize Landlord as its
landlord under the then-executory terms of such sublease.


 


7.6           In
the event of any assignment hereunder (other than an assignment to an affiliate
of Tenant or a permitted assignment or sublet pursuant to Section 7.9(b) herein)
of any options contained in this Lease with respect to additional term(s),
additional space, or otherwise, shall automatically lapse and be of no further
force or effect, unless otherwise expressly set forth in this Lease.


 


7.7           If
Landlord’s consent to an assignment or subletting is given, and such
transaction does not become fully binding upon the parties thereto and
effective within six (6) months of the Proposed Transfer Commencement Date for
any reason, then Landlord’s consent to such transaction shall be deemed null
and void, and Tenant’s compliance with the provisions of Section 7.1 and 7.3
shall again be necessary in the event Tenant desires to assign this Lease or
sublease all or any portion of the Premises, even in connection with the same
transaction as that initially proposed by Tenant in the Tenant Request Notice
(unless the Proposed Transfer Commencement Date for such same transaction was
delayed by Force Majeure, in which case such six (6) month period shall be
extended only by the number of days of any such delay due to Force Majeure only).


 


7.8           Tenant
hereby indemnifies, defends and holds Landlord and Landlord’s Agents harmless
from and against any and all claims, demands, liabilities, causes of action,
suits, judgments, damages and expenses (including litigation costs and
attorneys’ fees) that may be made against Landlord and/or Landlord’s Agents
based on, arising out of, or in any way relating to (directly or indirectly, in
whole or in part) any assignment or encumbrance (or attempted assignment or
encumbrance) of this Lease, or any subletting (or attempted subletting) of any


 


F-16





















 


part of the Premises including, without limitation, claims by (i) any
assignee or subtenant or proposed assignee or subtenant, or (ii) any brokers or
other persons claiming a commission or similar compensation in connection with
the proposed assignment or sublease, or any termination of this Lease by
Landlord pursuant to Section 7.3 above.


 


7.9           Any
provisions of this Article to the contrary notwithstanding, but subject to the
other terms, conditions and provisions contained in said Article:


 


(a)           
Tenant shall have the right, without the consent of Landlord and free of
Landlord’s recapture right, but after Landlord’s receipt of Tenant’s Request
Notice, to assign this Lease or sublease all or any part of the Premises to any
entity controlling, controlled by or under common control with Tenant; provided
that no such assignee shall further assign this Lease or sublease any or all of
the Premises and no such sublessee shall assign or encumber its sublease or
further sublease all or any part of the Premises; and provided, further, that
any event resulting in such assignee or sublessee ceasing to be an entity
controlling, controlled by or under common control with Tenant shall be deemed
to be an assignment or sublease requiring the prior consent of Landlord
pursuant to the provisions of this Article and Tenant shall thereupon comply
with all provisions of this Article applicable thereto.  For purposes hereof, “control” means
ownership of at least fifty-one percent (51%) of the issued and outstanding
voting stock of such corporation.


 


(b)           Tenant
shall also have the right, without the consent of Landlord and free of Landlord’s
recapture right, but after Landlord’s receipt of Tenant’s Request Notice
(provided such Request Notice is not prohibited by law, governmental authority
or previously executed confidentiality agreement), to assign this Lease to (i) any
entity succeeding to Tenant by merger or consolidation in accordance with
applicable statutory provisions for merger or consolidation or by purchase of
all or substantially all of Tenant’s assets; provided that subsequent to such
merger, consolidation or purchase, the net worth of the successor corporation
or the purchasing corporation, as the case may be, shall be at least equal to
the net worth of Tenant immediately prior to such merger, consolidation or
purchase (or if less, the net worth of Tenant on the date of this Lease) and
this fact shall be so certified by the chief financial officer of the assignor
and the assignee, or (ii) to any wholly-owned or wholly-controlled affiliate of
Tenant, subject to the terms and conditions of Section 7.5 herein.


 


(c)           It
is Landlord’s intent to permit assignment and subleasing pursuant to this
Section exclusively as an accommodation to the bona fide and legitimate
business organizational needs of Tenant, and notwithstanding the provisions
hereof, no assignment of this Lease or subleasing of all or any part of the
Premises without Landlord’s consent hereunder shall be permitted where the sole
or primary purpose of such assignment or subleasing is to permit occupancy of
all or any part of the Premises by a third party in avoidance of Landlord’s
consent, or in the case of an entity purchasing all or substantially all of
Tenant’s assets, where this Lease constitutes all or a substantial portion of
such assets.


 


(d)           Tenant
shall promptly give Landlord prior written notice of any assignment of this
Lease or subleasing as required under this Section accompanied by all
documentation required by Landlord to establish compliance with the
requirements of subsections (a) and (b) above, and Tenant shall also promptly
provide Landlord with a copy of 


 


F-17





















 


any executed instrument of merger,
consolidation or assignment or the executed sublease, as the case may be.


 


ARTICLE VIII

MAINTENANCE AND REPAIRS; COMPLIANCE WITH LAWS


 


8.1           Except
as otherwise provided in this Lease, Landlord shall keep the structural support
beams, load-bearing elements, foundations, exterior and structural walls, exterior
windows, support columns, and roof of the Building, and the mechanical,
electrical, HVAC and plumbing systems, pipes and conduits that are provided by
Landlord in the operation of the Building, as well as Common Areas
(collectively, the “Building Structure and Systems”), as a first class office
building, clean and in safe and good operating condition and repair, and
otherwise in compliance with all Legal Requirements and Insurance Requirements,
and Landlord will also make repairs thereto promptly after notice from Tenant
of the need for same and Landlord’s confirmation thereof.  Notwithstanding any of the foregoing to the
contrary, maintenance and repair of special tenant areas, facilities, finishes
and equipment (including, but not limited to, any special fire protection
equipment, telecommunications and computer equipment, kitchen/galley equipment,
all other fixtures furnishings and equipment of Tenant located in the Premises
or exclusively serving the Premises [wherever located], and any heating,
air-conditioning, electrical, ventilating, plumbing or mechanical equipment or
systems exclusively serving the Premises [wherever located, but specifically
excluding any unit which is currently part of the base HVAC system for the
Building or any replacement thereof], or within and serving the Premises on an
exclusive basis, as well as all Alterations [as hereinafter defined]), shall be
the sole responsibility of Tenant and in no event shall same be deemed to be a
part of the Building Structure and Systems. Landlord shall have no obligation
to make any repairs brought about by any act or omission of Tenant or Tenant’s
Agents, but shall have the right to do so, pursuant to Section 8.2 below, but
notwithstanding anything to the contrary in this Lease shall make any repairs
brought about by any act or omissions of Landlord or Landlord’s Agents.


 


8.2           Except
for such items of maintenance, repair and replacement that are specifically
Landlord’s obligation pursuant to Section 8.1 above, Tenant shall, at its sole
cost and expense, perform all maintenance and promptly make all repairs and
replacements in and to the Premises that are necessary or desirable to keep the
Premises in first-class condition and repair, in a clean, safe and tenantable
condition.  Tenant shall perform all such
repairs and replacements in accordance with all Legal Requirements, Insurance
Requirements, and the requirements of this Lease (including, without
limitation, the provisions of Article IX pertaining to Alterations).  Without limiting the generality of the
foregoing Tenant, at its sole cost and expense, shall perform all maintenance
and promptly make all repairs and replacements to, and keep in clean, safe and
sanitary condition: (i) special tenant areas, facilities, finishes and
equipment (including, but not limited to, any special fire protection equipment,
telecommunications and computer equipment, kitchen/galley equipment, and all
other fixtures, furnishings and equipment of Tenant located in the Premises or
exclusively serving the Premises [wherever located]); (ii) any heating,
air-conditioning, electrical, ventilating, plumbing or mechanical equipment or
systems exclusively serving the Premises (wherever located, but specifically
excluding any unit which is currently part of the base HVAC system for the
Building or any replacement thereof), or within and serving the Premises on an
exclusive basis; (iii) all interior


 


F-18





















 


glass, window panes and doors, including the entrance door(s) into the
Premises; and (iv) all Alterations.  Tenant
shall give Landlord prompt written notice of any defects or damage to the
structure of, or equipment or fixtures in, the Building or any part thereof.
Except as otherwise provided in Article XVII, all injury, breakage and damage
to the Premises and to any other part of the Building or the Property caused by
any act or omission of Tenant or Tenant’s Agents shall be repaired at Tenant’s
expense, either by Tenant or by Landlord on behalf of Tenant as set forth in
this Section 8.2.  Notwithstanding any
other section of this Lease to the contrary, Landlord shall have the right, at
Landlord’s option, to make (or to cause its designated contractor or
subcontractor to make): (i) any repairs which are Tenant’s responsibility under
this Lease and which connect to or may otherwise involve interaction with the
Building Structure and Systems, or require alterations to any portion of the
Building outside of the Premises, if any; (ii) any repairs to the Premises
which are otherwise the responsibility of Landlord hereunder, but are caused by
the act or omission of Tenant or Tenant’s Agents; and (iii) any repairs to any
other part of the Building or the Property caused by any act or omission of
Tenant or Tenant’s Agents; and in any such case Tenant shall reimburse Landlord
for all costs incurred in connection with such work, plus a charge of three
percent (3%) for administrative cost recovery, as Additional Rent, within ten
(10) days following Tenant’s receipt of an invoice therefor.  Notwithstanding anything herein, Tenant shall
not clean, nor allow any window in the Premises to be cleaned, from the
outside, except by Landlord’s designated contractor, the cost of which is
included in Operating Charges.  Tenant
shall obtain and keep in full force and effect annual maintenance contract(s)
on all systems and equipment that exclusively serve the Premises, copies of
which shall be delivered to Landlord annually and at such other times as
requested by Landlord, and Tenant shall prepare and retain complete maintenance
logs with regard to its maintenance, repairs and replacements of all such
systems and equipment.  Landlord shall
have the right, upon prior written notice to Tenant, to inspect the foregoing
records at the Premises.


 


8.3           Tenant
shall, in a timely manner and at its sole cost and expense, comply with all
Legal Requirements and Insurance Requirements concerning the Tenant’s
particular manner of use and occupancy of, and the maintenance of the condition
of the Premises and all machinery, equipment, furnishings, fixtures and
improvements therein, including, without limitation, the ADA, whether foreseen
or unforeseen, or ordinary or extraordinary.  In the event any such compliance obligation
requires Alterations which would connect to or otherwise involve interaction
with the Building Structure and Systems, or require alterations to any portion
of the Building outside of the Premises, or requires a building permit,
Landlord shall have the right, but not the obligation, to perform such work, in
which case Tenant shall be responsible for the cost thereof, plus a charge of three
percent (3%) for administrative cost recovery, and shall reimburse Landlord, as
Additional Rent for the cost thereof, within thirty (30) days following Tenant’s
receipt of an invoice therefor.  Notwithstanding
anything contained herein, with respect to the ADA only, the parties hereby
agree that: (a) Tenant shall be responsible for ADA compliance in the Premises
(subject to the provisions of this Section 8.3), including any leasehold
improvements or other work to be performed in the Premises under or in
connection with this Lease, (b) Landlord may perform (as aforesaid) and Tenant
shall be responsible for the cost of, or Landlord may require that Tenant
perform, at its cost, ADA “path of travel” requirements triggered by improvements
or Alterations in the Premises, made by or on behalf of Tenant, and (c)
Landlord may perform (as aforesaid), and Tenant shall be responsible for the
cost of, or Landlord may require that Tenant perform, at its cost, ADA
compliance in the


 


F-19





















 


Common Areas of the Property necessitated as a result of the Building
or the Property being deemed to be a “public place of accommodation” as a
result of Tenant’s particular manner of use or occupancy of the Premises.


 


ARTICLE IX

ALTERATIONS


 


9.1           Tenant
shall not make or permit anyone to make any repairs (whether required pursuant
to Section 8.2 or otherwise), alterations, decorations, additions, improvements
or other changes (collectively, “Alterations”), whether structural or
non-structural, interior or exterior, in or to the Premises or the Building
without the prior written consent of Landlord, which consent may be withheld or
granted in Landlord’s sole and absolute discretion.  However, Landlord shall not unreasonably
withhold, condition or delay its consent to any proposed Alteration to the
interior portions of the Premises which does not adversely affect or encumber
the Building Structure and Systems; but it shall be deemed reasonable for
Landlord to withhold its consent if any such Alteration would, in the opinion
of Landlord, adversely affect the marketability of the Premises, not be of a
type and quality consistent with first-class office buildings located in the
Geographic Area, or in the event that any Mortgagee does not provide its
required consent for such Alteration (provided Landlord shall use commercially
reasonable efforts to obtain such consent). 
Notwithstanding the foregoing, Landlord’s consent shall not be required
for any Alterations (“Permitted Alterations”) if the proposed Alterations (i)
do not affect the structural components of the Building, (ii) are designed in
conformance with the aesthetics and architecture of the Building in Landlord’s
reasonable discretion, (iii) do not adversely affect the Building systems, (iv)
are not visible from the exterior of the Premises, (v) do not reduce the value
or utility of the Building, (vi) are strictly cosmetic or decorative in nature,
(vii) do not exceed a cost of $35,000.00 to perform same, and (viii) do not
require the consent of any Mortgagee.


 


9.2           (a)           In
addition to the provisions of Section 9.1 above, any Alterations performed by
Tenant shall be made: (i) promptly upon Tenant’s compliance with the
requirements of this Article IX, and thereafter diligently prosecuted to
completion; (ii) in a good, workerlike, and first-class manner; (iii) using new
materials only; (iv) by a contractor approved in advance by Landlord, which
approval shall not be unreasonably withheld, conditioned or delayed (provided that
it shall be reasonable for Landlord to withhold its consent to any non-union
contractor whose employment would violate any existing union contract or if in
Landlord’s reasonable discretion would cause a conflict as described in Section
9.5 herein); (v) on days, at times and under the supervision of an engineer or
architect approved in writing by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed; (vi) in accordance with plans
and specifications prepared by such engineer or architect, which plans and
specifications shall include a reasonably detailed itemization of the estimated
total hard and soft costs of such Alterations, and shall be approved in advance
by Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed, and Landlord shall be promptly reimbursed by Tenant for any reasonable
out-of-pocket expenses incurred by Landlord in connection therewith; (vii) in
accordance with all Legal Requirements and Insurance Requirements; (viii) only
after having obtained and furnished to Landlord public liability, worker’s
compensation and so-called “builder’s risk” insurance policies reasonably
acceptable to Landlord, which policies shall cover all parties who will perform
any work with respect to such


 


F-20





















 


Alterations; (ix) in accordance with all contracts, subcontracts,
supply contracts, equipment leases, consulting agreements or similar documents,
and any amendments thereto, which have been executed by Tenant in connection
with the Alterations (proposed copies of which shall be provided to Landlord at
least ten (10) days before execution thereof and Landlord may, but shall not be
obligated to, review, approve or disapprove of same); (x) on the condition that
Tenant shall provide to Landlord executed copies of the contracts and other
documents specified in clause “(ix)” immediately above prior to the
commencement of any work; (xi) on the condition that Tenant shall provide to
Landlord written, unconditional waivers of mechanics’ and materialmen’s liens
against the Premises and the Building from all proposed contractors,
subcontractors, laborers and material suppliers for all work, labor and
services to be performed and materials to be furnished in connection with such
Alterations (or, if such waivers are then prohibited by Legal Requirements,
then Tenant shall provide to Landlord, on an ongoing basis on the first day of
each month during the performance of such work, a complete and accurate list
setting forth the names and addresses of each contractor, subcontractor,
construction manager, design professional, supplier or other persons or
entities providing work, services, materials or equipment to Tenant or for the
benefit of the Premises who may have the right, under applicable Legal
Requirements, to file a mechanic’s lien or other encumbrance in connection
therewith); (xii) in a manner that will not interfere with the use or occupancy
by other tenants of the Building of their respective premises; and (xiii) in a
manner that will not risk damage to the remainder of the Building; and (xiv) in
accordance with all reasonable construction rules and regulations from time to
time promulgated by Landlord.  Promptly
after the completion of any Alterations, Tenant, shall at its expense, deliver
to Landlord three (3) sets of accurate as-built drawings showing such
Alterations.


 


(b)           Landlord’s
review and/or approval of any plans and specifications for Tenant’s Alterations
shall not constitute an assumption of any responsibility by Landlord for their
accuracy, safety or sufficiency, and shall in no event create an express or
implied confirmation that either Tenant’s plans and specifications have been
prepared in accordance with, or that the Alterations shown thereon or specified
therein are in accordance with, Legal Requirements or Insurance Requirements.


 


9.3           Tenant
shall include Landlord in any bid for any proposed Alterations in excess of $35,000.00.  Landlord shall have the right, at Landlord’s
option, to make (or to cause its designated contractor or subcontractor to
make), at a cost which is customary for the Geographic Area: (i) any
Alterations which involve interaction with the Building Structure and Systems,
or require Alterations to any portion of the Building outside of the Premises;
and in any such case, except as otherwise expressly provided herein, at Tenant’s
sole cost and expense, which costs for such Alterations shall be paid, as
Additional Rent, within thirty (30) days following Tenant’s receipt of an
invoice therefor.  If Landlord elects not
to perform such work, then Tenant shall pay to Landlord as Additional Rent,
within thirty (30) days after receipt of an invoice therefor, Landlord’s
construction supervision fee of three percent (3%) of cost for the performance
of work by third parties within the Building.


 


9.4           Tenant
and Tenant’s Agents shall not do any act or make any contract which permits any
lien or other encumbrance upon any interest of Landlord or any Mortgagee in any
portion of the Premises or the Building, and, to the fullest extent permitted
by the New Jersey Construction Lien Law, N.J.S.A. 2A:4A-1, et  seq.,
or any other applicable Legal Requirement,


 


F-21





















 


Landlord’s consent to the making of any Alterations shall not be deemed
an agreement by Landlord to subject Landlord or any Mortgagee, or its or their
interest in the Premises or the Building, to any Lien (as hereinafter defined),
charge or encumbrance which may be filed in connection with such permitted
Alterations.  It is expressly agreed that
Landlord shall have no obligation to review any such contracts (notwithstanding
the fact that same may have been delivered to Landlord), it being agreed by
Landlord and Tenant that, to the fullest extent permitted by applicable Legal
Requirements, any Liens by any contractor, subcontractor, construction manager,
design professional, supplier or other persons or entities providing work,
services, materials or equipment to Tenant or for the benefit of the Premises
pursuant to such contracts shall attach only to the leasehold interest of
Tenant.  Tenant covenants and agrees to
promptly pay all persons or entities furnishing or providing work, services,
materials or equipment to Tenant or for the benefit of the Premises at the
direction of Tenant or Tenant’s Agents.  If, because of any act or omission (or alleged
act or omission) of Tenant or Tenant’s Agents, any construction lien, claim or
other lien, including, without limitation, any Notice of Unpaid Balance and
Right to File Lien (collectively “Lien”), charge, or order for the payment of
money or other encumbrance shall be filed against Tenant, Landlord or any
Mortgagee, or against any portion of the Premises or the Building (whether or
not such Lien, charge, order, or encumbrance is valid or enforceable as such),
Tenant shall notify Landlord of same immediately after Tenant is first
notified, or otherwise becomes aware, thereof, and shall, at Tenant’s own cost
and expense, cause same to be discharged of record by paying the claimant,
obtaining a discharge and recording or filing same, as applicable, or by filing
a surety bond or depositing funds with the Clerk of the Superior Court of New
Jersey, as provided in N.J.S.A. 2A:4A-31, or by any other then-customary
process with respect to the type of Lien or encumbrance involved; and Tenant
shall indemnify, defend and hold harmless Landlord and Landlord’s Agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages and expenses (including litigation costs and attorneys’
fees) based thereon, arising therefrom or in any way relating thereto, directly
or indirectly, whether in whole or in part, such indemnification obligation to
survive the expiration or earlier termination of this Lease. If within thirty (30)
days after first becoming aware of such filing, Tenant fails to cause such Lien
or other encumbrance to be so discharged of record, bonded over or otherwise
disposed of in accordance with any customary process as provided above,
Landlord shall have the option of discharging or bonding any such Lien or other
encumbrance, and Tenant agrees to reimburse Landlord, as Additional Rent, for
all costs, expenses and other sums of money incurred by Landlord in connection
therewith, with interest thereon at the Default Interest Rate from the date
such cost was incurred, until repaid in full.  All materialmen, contractors, artisans,
mechanics, laborers, and any other persons or entities now or hereafter
contracting with Tenant or Tenant’s Agents or any contractor or subcontractor
of Tenant or Tenant’s Agents for the furnishing of any labor, services,
materials, supplies, or equipment with respect to any portion of the Premises
or the Building at any time from the date hereof (whether or not Landlord has
consented thereto), are hereby charged with notice that they look exclusively
to Tenant for payment of same.


 


9.5           Tenant
shall not, at any time directly or indirectly employ, or permit the employment of,
any contractor, mechanic or laborer, whether in connection with an Alteration
or otherwise, if in Landlord’s opinion such employment would interfere, cause
any conflict, or create any difficulty, strike or jurisdictional dispute with,
other contractors, mechanics or laborers engaged in the construction,
maintenance, repair or operation of the Building by


 


F-22





















 


Landlord, Tenant or others.  In
the event of any such interference, conflict, difficulty, strike or
jurisdictional dispute, Tenant shall, upon demand of Landlord, cause all
contractors, mechanics or laborers causing the same to leave the Building
immediately.


 


9.6           If
any Alterations that require Landlord’s consent under this Lease are made
without the prior written consent of Landlord, Landlord shall have the right,
at its option and in addition to Landlord’s other rights and remedies, to
either require Tenant to remove such Alterations and restore the affected
portion(s) of the Premises or the Building, as applicable, to their condition
immediately prior thereto, or to do so on Tenant’s behalf, in which case Tenant
shall reimburse Landlord as Additional Rent for the cost of such removal and
restoration, with interest at the Default Interest Rate, from the date such
cost was incurred until repaid in full, within ten (10) days after receipt of
an invoice therefor.  All Alterations to
the Premises and/or the Building made by either party shall become the property
of Landlord and shall remain upon and be surrendered with the Premises at the
expiration or earlier termination of the Term; provided, however, that (a) if
Tenant is not in default under this Lease beyond applicable notice, cure and
grace periods, then Tenant shall have the right to remove, and at Landlord’s
direction shall remove, upon the expiration or earlier termination of the Term,
all movable furniture, furnishings, trade fixtures and other personal property
of Tenant located in the Premises solely at the expense of Tenant, (b) Tenant
shall remove, upon the expiration or earlier termination of the Term, all
personal property of Tenant’s Agents located in the Premises, and (c) Tenant
shall remove all Alterations as well as any extraordinary items of the Tenant
Improvement Work (as identified by Landlord prior to the granting of Landlord’s
consent to such extraordinary Alterations) in the Premises or the Building
(including, without limitation, items not regularly installed in office
premises similar to the Premises such as vaults and internal stairways, and any
wiring and cabling located in risers outside the Premises, but specifically
excluding non-extraordinary items of the initial Tenant Improvement Work) which
Landlord designates in writing for removal prior to Tenant’s installation of such
Alterations.  Notwithstanding the provisions
of clause “(a)” above, at Landlord’s option, movable furniture, furnishings and
trade fixtures shall be deemed to exclude any item the removal of which might
cause material damage to the Premises or the Building or which would normally
be removed from the Premises with the assistance of any machinery other than a
dolly. Tenant shall, at its expense, repair all damage and injury to the
Premises or the Building caused by any removal and restore same to the condition
in which it existed prior to such installation.  Tenant’s obligations under this Section 9.6
shall survive the Expiration Date or earlier termination of this Lease.


 


9.7           Anything
contained in this Lease to the contrary notwithstanding, to the extent Landlord
has either (i) provided Tenant with value (by way of a construction allowance
or otherwise), or (ii) granted a credit to Tenant (by way of a rent concession
or otherwise) for the express or implied purpose of funding, in whole or in
part, Tenant’s fit-up costs (whether in connection with the work performed by
or on behalf of Tenant in fitting up the Premises on or about the Commencement
Date, or at any later time during the Term), the fit-up work, fixtures,
non-moveable equipment and machinery, and appurtenances to the extent funded
thereby (hereinafter collectively referred to as the “Landlord Funded
Improvements”) shall remain the property of Landlord and may not be removed by
Tenant at any time during the Term without Landlord’s prior written consent,
and shall remain in the Premises upon the expiration or earlier termination of
this Lease, unless otherwise indicated pursuant to Section 9.6 above.  Landlord


 


F-23





















 


alone shall be entitled to depreciate the Landlord Funded Improvements
as an asset for tax purposes.


 


ARTICLE X

SIGNS


 


10.1         Tenant
shall not place on the exterior of the Premises (including exterior surfaces of
doors and both interior and exterior surfaces of windows), or within the
Premises if same are visible to public view from outside the Premises, any
signs, symbols, advertisements or items of a similar nature.  Landlord will not unreasonably withhold or
delay its consent to signs or lettering on the entry door to the Premises,
provided that (i) Tenant has submitted to Landlord a plan or sketch thereof in
reasonable detail showing, without limitation, size, color, location, materials
and method of affixation; and (ii) such signs and/or lettering conform to
Building standards as adopted by Landlord from time to time in its sole
discretion.  If any sign, symbol,
advertisement or other item that has not been approved by Landlord is so
displayed, then Landlord shall have the immediate right, with or without prior
notice to Tenant, to remove such item at Tenant’s expense or to require Tenant
to do the same.  Landlord shall permit
reasonable signage on a wall of the lobby of the Building to include Tenant’s
business name and logo thereon, subject to Landlord’s prior approval pursuant
to the terms and conditions of this Section 10.1.  Landlord reserves the right to install and
display signs, advertisements and notices of any kind on any portions of the
exterior or interior of the Building as Landlord may elect, provided the same
are compatible with a first-class office building and customary for similarly
situate first-class office buildings in the Parsippany, New Jersey area.  Notwithstanding the foregoing, and subject to
compliance with applicable law, Tenant, at its sole cost and expense, shall be
permitted to place its name on the existing marquee and directional signs
located on the exterior portion of the Property and the Complex which are
currently being used as signage for the Building, subject to Landlord’s prior
approval pursuant to the terms and conditions of this Section 10.1 and the
approval of any other party required to be obtained in connection with the
placing of signage at the Complex. 
Landlord agrees to diligently use all commercially reasonable efforts to
obtain any such required approvals.


 


ARTICLE XI

SECURITY DEPOSIT


 


11.1         Simultaneously
with Tenant’s execution of this Lease, Tenant shall deposit with Landlord the
Security Deposit set forth in Article I, which shall be held as security for
the performance by Tenant of all of Tenant’s obligations, covenants, conditions
and agreements under this Lease.  The
Security Deposit is subject to reduction as set forth in Section 1.39.  Landlord shall not be required to maintain
the Security Deposit in a separate account and, except for any minimum amount
of interest that may be required by applicable Legal Requirements pertaining to
commercial leases, Tenant shall not be entitled to interest on the Security
Deposit.  In no event shall the Security
Deposit be considered an advance payment of Rent, and in no event shall Tenant
be entitled to use the Security Deposit for the payment of Rent.  If there shall be any default by Tenant under
this Lease, then Landlord shall have the immediate right, but not the
obligation, with or without prior notice to Tenant, to use, apply or retain all
or any portion of the Security Deposit for the payment of (a) any Base Rent,
Additional Rent or any other sum as to which Tenant is in default, or (b) any
amount Landlord


 


F-24





















 


may spend or become obligated to spend, or for the compensation of
Landlord for any losses incurred, by reason of Tenant’s default (including, but
not limited to, any damage or deficiency arising in connection with the
reletting of the Premises).  If any
portion of the Security Deposit is so used or applied, then within five (5)
business days after Landlord’s notice to Tenant of such use or application,
Tenant shall deposit with Landlord cash in an amount sufficient to restore the
Security Deposit to the original amount set forth in Article I, and Tenant’s
failure to do so shall constitute an Event of Default under this Lease.  Within approximately thirty (30) days after
the later to occur of the expiration or earlier termination of the Term, or Tenant’s
vacating and surrendering the Premises in the condition required hereunder,
Landlord shall return the Security Deposit to Tenant, less such portion thereof
as Landlord shall have utilized to satisfy any of Tenant’s obligations in the
event of any default by Tenant under this Lease.


 


11.2         (a)
In lieu of a cash deposit, simultaneously with Tenant’s execution of this
Lease, Tenant may deposit with Landlord an unconditional, irrevocable
commercial letter of credit (the “Letter of Credit”) in the amount of the
Security Deposit set forth in Article I, which shall be held as security for
the performance by Tenant of all of Tenant’s obligations, covenants, conditions
and agreements under this Lease.  The
Letter of Credit shall (i) governed by the rules and procedures of the
International Standby Practices 1998, promulgated jointly by the Institute for
International Banking Law and Practice and the International Chamber of
Commerce, effective January 1, 1999; (ii) be issued by a New York City
metropolitan area or New Jersey federally insured commercial bank (1) organized
under the laws of the United States of America or any state thereof, (2) doing
business in the United States of America, (3) subject to state or federal
banking regulatory authorities, (4) having a combined capital, surplus and
undivided profits (less any undivided losses) of not less than Two Hundred Fifty
Million Dollars ($250,000,000.00), and (5) having a commercial paper rating of
A-1 (or then equivalent) from Standard & Poor’s Corporation or P- I (or
then equivalent) from Moody’s Investors Service, Inc. and otherwise reasonably
acceptable to Landlord (collectively “Bank Criteria”); (iv) be payable in full
or partial draws upon presentation of the following to the issuer of the Letter
of Credit: (X) a letter on Landlord’s letterhead stating that Landlord is
entitled to the Letter of Credit proceeds; and (Y) a copy of the Letter of
Credit; (v) provide that the documentation to be supplied by Landlord in
connection with any draw may be presented to the issuer in an electronic
format; (vi) be made expressly transferable and assignable (without condition
of payment by Tenant, Landlord or any transferee thereof) by Landlord from time
to time under this Lease, to any assignee of Landlord’s interest in this Lease,
any Mortgagee, or any receiver of such Landlord (it being agreed that the
Letter of Credit shall be delivered only to any such persons or entities); and
(vii) subject to Section 11.2(c) below, include an “evergreen” provision which
provides that the Letter of Credit shall be automatically renewed on an annual
basis, such that the Letter of Credit remains in effect through the period
required by Article 1 of this Lease.  In
the event a replacement Letter of Credit is issued at any time during the term
by a bank other than the initially approved bank, such replacement Letter of
Credit shall be issued by a bank which satisfies the Bank Criteria. Tenant
expressly waives any right it might otherwise have to prevent Landlord from
drawing on the Letter of Credit, and agrees that an action for damages (and not
injunctive or other equitable relief) shall be Tenant’s sole and exclusive
remedy in the event Tenant disputes Landlord’s claim to any such amounts which
are the basis for Landlord’s draw upon the Letter of Credit.


 


F-25





















 


(b)           Landlord
shall not be required to maintain the proceeds of any draw upon the Letter of
Credit in a separate account and, except for any minimum amount of interest
that may be required by applicable Legal Requirements pertaining to commercial
leases, Tenant shall not be entitled to interest thereon. In no event shall the
Security Deposit be considered an advance payment of Rent, nor shall Tenant be
entitled to use the Security Deposit for the payment of Rent.  If there shall be any default by Tenant under
this Lease, then Landlord shall have the immediate right, but not the
obligation, with or without prior notice to Tenant, to draw upon the Letter of
Credit and use and apply any portion of the proceeds (a) for the payment of any
Base Rent, Additional Rent or any other sum as to which Tenant is in default;
(b) for the payment of any amount Landlord may spend or become obligated to
spend by reason of Tenant’s default; or (c) as compensation to Landlord for any
losses incurred by reason of Tenant’s default (including, but not limited to,
any damage or deficiency arising in connection with the reletting of the
Premises).  If any portion of the
Security Deposit is so used or applied, then within seven (7) business days
after Landlord’s notice to Tenant of such use or application, Tenant shall
cause the issuing bank to restore the Letter of Credit to its original amount
as set forth in Article I, and Tenant’s failure to do so shall constitute an
Event of Default under this Lease.  Landlord
shall also have the immediate right to draw upon the Letter of Credit if the
issuing bank fails, at any time, to continue to comply with the Bank Criteria,
in which case Landlord may retain the cash proceeds of the Letter of Credit.  Within approximately thirty (30) days after
the later to occur of the expiration or earlier termination of the Term, or
Tenant’s vacating and surrendering the Premises in the condition required
hereunder, Landlord shall return the Letter of Credit to Tenant, less the
proceeds of any draw Landlord shall have made thereon in order to satisfy any
of Tenant’s obligations as provided hereunder.


 


(c)           If
despite Tenant’s best efforts, Tenant is unable to provide an “evergreen”
Letter of Credit as required by clause “(viii)” of Section 11.2(a) above, then
the Letter of Credit shall expire no earlier than twelve (12) months after
issuance, and all subsequent replacement Letters of Credit shall expire no
earlier than twelve (12) months from the expiration date of the then
outstanding and expiring Letter of Credit, or if earlier, the time provided in
Article 1.  Tenant shall ensure that at
all times during the Term of this Lease and for thirty (30) days after the
Expiration Date, Landlord shall be in possession of an unexpired Letter of
Credit in the amount required hereunder.  During the Term, Tenant shall deliver a
replacement Letter of Credit to Landlord no later than thirty (30) days prior
to the expiration date of the then outstanding and expiring Letter of Credit;
provided, however, that the replacement letter of credit shall not be required
to have an effective date earlier than the expiration date of the then existing
Letter of Credit (it being the intent that Tenant not be required to have two
outstanding Letters of Credit at any one time).  Failure by Tenant to deliver any replacement
Letter of Credit as required above shall entitle Landlord to immediately draw
upon the outstanding Letter of Credit, and to retain the entire proceeds thereof
for application as the Security Deposit under this Lease pursuant to Section
11.2(d) below (provided that Tenant shall thereafter continue to have the right
to substitute a Letter of Credit for such cash Security Deposit then being held
by Landlord, in accordance with the requirements of this Section 11.2).


 


(d)           In
the event Landlord draws upon the Letter of Credit and as a result thereof
Landlord, at any time thereafter, is holding a cash Security Deposit in lieu of
all or any portion of the Letter of Credit, then such cash Security Deposit
shall be held in accordance with the provisions of Section 11.1 above, and
within five (5) business days after such draw Tenant


 


F-26





















 


may, at Tenant’s option, provide Landlord
with a replacement Letter of Credit in the full amount of the Letter of Credit
portion of the Security Deposit, at which time Landlord shall return to Tenant
any cash Security Deposit then held by Landlord in lieu of all or any portion
of the Letter of Credit.  Tenant shall
also have the right, at all times that Landlord is holding the cash portion of
the Security Deposit, to substitute a Letter of Credit therefor.


 


(e)           Upon
request of Landlord or any prospective purchaser or Mortgagee of the Building,
Tenant shall, at its expense, cooperate with Landlord in obtaining an amendment
to or replacement of any Letter of Credit which Landlord is then holding, so
that the amended or new Letter of Credit reflects the name of the new owner
and/or Mortgagee of the Building.


 


11.3         Nothing
herein shall be construed to limit the amount of damages recoverable by
Landlord, it being specifically agreed that the Security Deposit (whether in
the form of cash or the Letter of Credit) shall not be deemed liquidated damages
in the event of a default by Tenant under this Lease, nor shall anything herein
limit any other remedy Landlord may have in addition to the right to apply all
or any portion of the cash Security Deposit, (or to draw down upon the Letter
of Credit, as applicable).  Tenant shall
not assign, pledge or encumber or attempt to assign, pledge or encumber any
portion of the Security Deposit, and neither Landlord nor its successors or
assigns shall be bound by any such assignment, pledge or encumbrance, or any
such attempted assignment, pledge or encumbrance.


 


11.4         If
Landlord transfers the cash Security Deposit or Letter of Credit to any
purchaser or other transferee of Landlord’s interest in the Building, then
Tenant shall look only to such purchaser or transferee for the return thereof,
and Landlord shall be released from all liability to Tenant for the return of
such Security Deposit or Letter of Credit.


 


ARTICLE XII

LANDLORD’S INSPECTION OF AND ACCESS TO THE PREMISES


 


12.1         Tenant
shall permit Landlord and Landlord’s Agents to enter the Premises at all reasonable
times, upon reasonable advance notice (except in case of emergency in which
case no notice shall be required): (i) to examine, inspect or protect the
Premises and the Building; (ii) to make such alterations (using commercially
reasonable efforts not to interfere with Tenant’s use or enjoyment of the
Premises or materially altering the size or layout, or altering the useable
square footage of the Premises) and/or repairs as in the reasonable judgment of
Landlord may be deemed necessary or desirable; (iii) to exhibit the same to
brokers, prospective tenants (during the last 12 months of the term) or
purchasers, lenders, and others; (iv) if Tenant vacates the Premises prior to
the Expiration Date, to make alterations to or otherwise prepare the Premises
for reoccupancy without relieving Tenant of its obligation to pay all Rent due
under this Lease through the Expiration Date; and (v) if any excavation or
other substructure work shall be made or authorized to be made upon land
adjacent to the Building or the Land, to perform such work as is required to
preserve the walls of the Building and to preserve the Land from injury or
damage and to support such walls and land by proper foundations.  Landlord shall be allowed to take all material
into and upon the Premises that may be required for such repairs or alterations
or otherwise.  Except in the event of an
emergency, Landlord shall endeavor to minimize disruption to Tenant’s normal
business operations in the Premises in connection with any such entry.  Any such entry pursuant to this Article XII
shall


 


F-27





















 


not be deemed to constitute an eviction of Tenant in whole or in part,
and the Base Rent and Additional Rent payable under this Lease shall not abate
during any such entry. Landlord shall have no liability to Tenant for any
inconvenience or interruptions caused by the making of such repairs or
alterations, or by such entry by Landlord or Landlord’s Agents pursuant to any
provision of this Lease.  Nothing in this
Section 12 shall be construed to impose upon Landlord any greater or additional
obligations to inspect, maintain or repair the Premises beyond those specific
obligations expressly imposed upon Landlord pursuant to this Lease.


 


ARTICLE XIII

INSURANCE


 


13.1         (a)           Throughout
the Term, Tenant shall obtain and maintain the following insurance:


 


(1)           commercial
general liability insurance (written on an occurrence basis) including
contractual liability coverage insuring the indemnity obligations assumed by
Tenant under this Lease, premises and operations coverage, broad form property
damage coverage and independent contractors coverage, and containing an
endorsement for personal injury, in minimum amounts of not less than Three
Million Dollars ($3,000,000) combined single limit per occurrence, per location
with a Five Million Dollar ($5,000,000) annual aggregate;


 


(2)           all-risk
property insurance covering all perils and contingencies as may be reasonably required
by Landlord or its Mortgagee, including, in all events, coverage for fire,
lightning, windstorm, hail, explosion, terrorism, vandalism and malicious
mischief, riot and civil commotion, and smoke, with a replacement cost
endorsement insuring one hundred (100%) percent of the replacement cost of all
Alterations and other improvements made by or on behalf of Tenant and all
contents of the Premises (including, without limitation, Tenant’s trade
fixtures and other personal property);


 


(3)           comprehensive
automobile liability insurance (covering all owned, non-owned and hired
vehicles), in an amount of not less than One Million Dollars ($1,000,000) for
each accident;


 


(4)           worker’s
compensation insurance, in minimum limits as required by the State of New
Jersey (as the same may be amended from time to time), for all employees of
Tenant engaged in any work on or about the Premises;


 


(5)           employer’s
liability insurance, in an amount not less than One Million Dollars
($1,000,000) for each accident, One Million Dollars ($1,000,000) disease-policy
limit, and One Million Dollars ($1,000,000) disease-each employee, (or such
greater amount as may be mandated by Legal Requirements), for all employees of
Tenant engaged in any work on or about the Premises;


 


(6)           in
amplification of the insurance requirements relating to Alterations set forth
in Section 9.2 above, but without limitation thereof, for any period during
which construction is being performed by or on behalf of Tenant in or about the
Premises,


 


F-28





















 


builder’s all-risk insurance (completed value
non-reporting form), covering all perils and contingencies as may be reasonably
required by Landlord or its Mortgagee, including, in all events, coverage for
vandalism and malicious mischief with a replacement cost endorsement; and


 


(7)           if
Tenant shall use the Premises for entertaining or for any other social function
(including parties and/or receptions for clients, customers, employees and/or
others) at which any alcoholic beverages are served, Tenant shall obtain an
endorsement to its policy of commercial general liability insurance (if such
coverage is not already provided by such policy) providing host liquor
liability coverage of not less than One Million Dollars ($1,000,000) for bodily
injury and property damage liability in anyone occurrence and, if Tenant shall
have contracted with a third party to serve such alcoholic beverages, Tenant
shall also cause such third party to obtain an endorsement to its policy of
commercial general liability insurance (if such coverage is not already
provided by such policy) providing liquor liability coverage of not less than
One Million Dollars ($1,000,000) for bodily injury and property damage
liability in anyone occurrence; provided, however, that nothing contained in
this Section 13.1(a)(8) shall be construed to permit Tenant to use the Premises
for any use or purpose other than the Permitted Use.


 


(b)           All
insurance required hereunder to be carried by Tenant shall: (i) be issued by
companies that are licensed to do business in the State of New Jersey and have
been approved in advance by Landlord, and each such company shall have a rating
from A.M. Best Company, Inc. (or a comparable successor rating company if A.M.
Best Company, Inc. discontinues publishing Best’s Insurance Guide) of “A” or
higher and a financial size of “X” or higher; (ii) name Landlord, the managing
agent of the Building and any Mortgagee as additional insureds and/or loss
payees (as applicable); (iii) be reasonably acceptable in form and content to
Landlord; (iv) be primary and non-contributory; (v) contain an endorsement for
cross liability and severability of interests; (vi) contain an endorsement
prohibiting cancellation, failure to renew, reduction of amount of insurance or
change in coverage without the insurer giving Landlord and all other additional
insureds or loss payees (as the case may be) thirty (30) days’ prior notice by
certified mail, return receipt requested, of such proposed action; and (vii)
not contain a provision relieving the insurer thereunder of liability for any
loss by reason of the existence of other policies of insurance covering the
Premises against the peril involved, whether collectible or not.  Any such policy may contain a deductible
provision in an amount not to exceed $10,000 (and Tenant shall, and hereby
agrees to, indemnify, defend, and hold Landlord and Landlord’s Agents harmless
from and against all claims, demands, liabilities, causes of action, suits,
judgments, damages and expenses [including litigation costs and attorneys’
fees] beginning with the first dollar, whenever such deductible applies to a
claim).  Neither the issuance of any
insurance policy required under this Lease nor the minimum limits specified
herein shall be deemed to limit or restrict in any way Tenant’s liability
arising under or out of this Lease.


 


(c)           Landlord
reserves the right from time to time to require Tenant to obtain higher minimum
amounts and/or different types of insurance if: (i) it becomes customary for
landlords of first-class office buildings of the type and quality located in
the Geographic Area to require similar sized tenants in similar industries to
carry insurance of such higher minimum


 


F-29





















 


amounts or of such different types; or (ii)
any such change is reasonably required by a Mortgagee.


 


(d)           Tenant
shall deliver certificate(s) of all such insurance and paid receipts therefor
to Landlord prior to the earlier of: (i) the Commencement Date; or (ii) Tenant’s
first entry onto the Premises for any reason, and thereafter, not less than
thirty (30) days prior to the expiration of any such policy (and, upon Landlord’s
request, Tenant shall promptly deliver copies of all insurance policies,
including endorsements and declarations thereto).


 


(e)           Tenant
shall give Landlord immediate notice in case of fire, theft or accident in the
Premises, and in the case of fire, theft or accident in the Building, if involving
Tenant or Tenant’s Agents.


 


(f)            Tenant
shall secure an appropriate clause, or an endorsement upon all applicable
policies of insurance, pursuant to which the respective insurance companies
waive subrogation or permit the insured, prior to any loss, to agree with a
third party to waive any claim Tenant may have against said third party.  Such waiver shall in all events extend to
Landlord and Landlord’s Agents.  Subject
to the foregoing sentence, and insofar as may be permitted by the terms of the
insurance policies carried by it, and notwithstanding any provision of this
Lease to the contrary, Tenant hereby releases Landlord and Landlord’s Agents
with respect to any claim Tenant may have against Landlord or Landlord’s Agents
which is insured against under any insurance policy that Tenant carries, or
would be insured against if Tenant carried the insurance required pursuant to
this Lease (whether or not Tenant is, in fact then carrying such required
insurance), regardless of whether the act or omission of Landlord or Landlord’s
Agents caused or contributed to such loss.  In the event Tenant is a self-insurer or
maintains a deductible, then Tenant hereby releases Landlord and Landlord’s
Agents from any liability arising from any event which would have been covered
had the required insurance been obtained and/or the deductible not been
maintained.  In no event shall the
foregoing be deemed to imply that Tenant may self-insure and/or maintain a
deductible in excess of $10,000 with respect to any insurance required
hereunder.


 


(g)           In
the event Tenant fails to maintain any of the insurance required hereunder,
Landlord shall have the right, but not the obligation, without waiving any
other rights to which it may be entitled as a result of such default, to obtain
any or all of such insurance for the account of Tenant, and in such case Tenant
shall reimburse Landlord for the cost thereof, as Additional Rent, within ten
(10) days after receipt of Landlord’s bill therefor.


 


13.2         Tenant
shall not conduct or permit to be conducted any activity, or place or permit to
be placed any equipment or other item in or about the Property which will in
any way increase the rate of fire insurance or other insurance on the Property.
 If any increase in the rate of fire
insurance or other insurance is due to any activity, equipment or other item of
Tenant, then (whether or not Landlord has consented to such activity, equipment
or other item) Tenant shall pay to Landlord as Additional Rent within ten (10)
days of receipt of an invoice therefor, the amount of such increase.  The statement of any applicable insurance
company or insurance rating organization (or other organization exercising
similar functions in connection with the prevention of fire or the correction
of hazardous conditions) that an increase is due to any such activity,
equipment or other item shall be conclusive evidence thereof.  The foregoing


 


F-30





















 


provisions of this Section 13.2 shall not be construed as a grant to
Tenant to utilize any portions of the Building outside of the Premises, or to
utilize the Premises for any use or purpose other than the Permitted Use.


 


13.3         Landlord
agrees to carry and maintain property insurance covering fire and other casualties
normally covered by a standard “special form” policy, with respect to the Property
(including the Tenant Improvement Work) in an amount deemed prudent by Landlord
or its Mortgagee, but in any event not less than the amount required by its
insurance company to avoid the application of any co-insurance provision.  Landlord shall secure a waiver of subrogation
endorsement from its insurance carrier with respect to such all-risk property
coverage.  Subject to the foregoing
sentence, and insofar as may be permitted by the terms of the insurance
policies carried by it, and notwithstanding any provision of this Lease to the
contrary, Landlord hereby releases Tenant and Tenant’s Agents with respect to
any claim Tenant may have against Landlord or Landlord’s Agents which is
insured against under Landlord’s property all-risk insurance policy, or would
be insured against by such policy if Landlord carried such all-risk property
insurance (whether or not Landlord is, in fact then carrying such required
insurance), regardless of whether the act or omission of Tenant or Tenant’s
Agents caused or contributed to such loss. 
In the event Landlord is a self-insurer or maintains a deductible, then
Landlord hereby releases Tenant and Tenant ‘s Agents from any liability arising
from any event which would have been covered had the required insurance been obtained.  Landlord also agrees to carry and maintain
(or cause to be carried and maintained) commercial general liability insurance
with respect to the Common Areas in limits Landlord or its Mortgagee reasonably
deems appropriate, but in no event with limits less than required for Tenant
pursuant to Section 13.1(a)(1) herein.


 


ARTICLE XIV

SERVICES AND UTILITIES


 


14.1         Landlord
agrees to furnish:


 


(a)           heating,
ventilating and air conditioning to the Premises and interior Common Areas
during Building Hours (except on Building Holidays) in the seasons when, as the
case may be, air conditioning or heating is required, in accordance with
Exhibit G attached hereto;


 


(b)           janitorial
service to the Premises Mondays through Fridays, excluding Building Holidays,
in accordance with the specifications contained in Exhibit E attached hereto
and made a part hereof;


 


(c)           hot
and cold water in public restrooms, water fountains and convenience kitchens
for employee use only for ordinary drinking and lavatory purposes;


 


(d)           electricity
to the Premises as and to the extent provided in Section 14.5 below;


 


(e)           maintenance
of the Building sprinkler system;


 


(f)            general
Building administration; and


 


F-31





















 


(g)           elevator
service to the floor(s) of the Building on which the Premises is located (with
at least one [1] elevator in operation at all times).


 


In addition, Landlord will otherwise operate,
maintain, repair and clean (or cause to be operated, maintained, repaired and
cleaned) the Common Areas in reasonably good order and condition consistent
with first class office buildings in the Geographic Area, including, but not
limited to, (i) parking lot cleaning, repair and snow removal from parking
areas and sidewalks; and (ii) maintenance of exterior landscaping.  All costs incurred by Landlord in furnishing
the foregoing services shall be included in Operating Charges (except for the
cost of providing electric service to the Premises, which is addressed in
Section 14.5 below).


 


14.2         If
Tenant requires air-conditioning or heating beyond Building Hours, Landlord
will furnish same, provided Tenant gives Landlord sufficient advance notice of
the need therefor and Tenant agrees to pay, in each instance of after-hours
service, an “After-Hours HVAC Charge” which, as of the date hereof, is the
fixed, agreed-upon sum of Sixty and 00/100 Dollars ($60.00) per hour, without
proration for partial hours of service, subject to increase by Landlord to
reflect actual increases in electric cost of providing such after hours HVAC.  Notwithstanding the foregoing, Tenant shall
be entitled to request from Landlord up to forty (40) hours per Lease Year
(without proration for partial hours of service) of “After-Hours HVAC” for the
Premises without charge, subject to the terms and conditions of this Section
14.2.


 


14.3         Tenant
shall reimburse Landlord for the cost of removing from the Premises and the
Building any excess refuse and rubbish generated or otherwise disposed of by
Tenant (i.e., refuse and rubbish removal beyond the scope of refuse and rubbish
removal included in the janitorial specifications set forth on Exhibit E), as well
as the cost of removing any carpet stains not otherwise addressed in the
janitorial specifications, and Tenant shall pay, as Additional Rent, all bills
therefor when rendered.


 


14.4         Notwithstanding
anything to the contrary contained herein, Landlord and Landlord’s Agents shall
not be liable for any failure to maintain comfortable atmosphere conditions in
all or any portion of the Premises due to excessive heat generated by any
equipment or machinery installed by Tenant (with or without Landlord’s
consent), or due to any impact that furniture, equipment, machinery or millwork
within the Premises may have upon the delivery of heat or air-conditioning (as
applicable) to the Premises, or due to an excessive occupancy load of the
Premises pursuant to the limitations set forth in Exhibit G attached hereto, or
due to events beyond the control of Landlord, nor shall Landlord or Landlord’s
Agents shall have any liability for failure to supply any utilities or other
services hereunder when prevented from doing so by strikes, repairs,
alterations or improvements or by reason of the failure of the utility company
servicing the Building to furnish any such utility, or by order or regulation
of any Legal Requirement or Insurance Requirement, or for any cause beyond
Landlord’s control, nor shall any such failure be deemed a constructive
eviction of Tenant, or constitute a breach of any implied warranty, or entitle
Tenant to any abatement of Rent or otherwise effect Tenant’s obligations
hereunder.


 


14.5         (a)           Subject
to the provisions of this Section 14.5, Landlord shall redistribute electric
energy to service the Premises.  Landlord’s
obligation to supply electric power to the


 


F-32





















 


Premises is limited ordinary lighting and electric office equipment
usage and for no other uses or purposes (“Tenant Electric”).  Tenant shall pay to Landlord as Additional
Rent, within ten (10) days of receipt of a bill therefor, the charges for
Tenant Electric.  The term “Electric
Rates” shall be deemed to mean the rates for the comparable usage charged by
the public utility company furnishing electrical energy to the Building,
including but not limited to any charges or surcharges incurred or taxes
payable by Landlord in connection therewith or increase or decrease thereof by
reason of fuel adjustment or any substitutions for such Electric Rates or
additions thereto, but in all events giving Tenant the benefit of any reduced
rate, discount, credit or other benefits provided to Landlord for the Property.


 


(b)           Tenant
shall make no alterations (other than replacements) or additions to the
electrical equipment or appliances other than in the ordinary course of
business without notifying Landlord in each instance.


 


(c)           In
no event shall Landlord be liable for any business interruption suffered by
Tenant.  Tenant covenants and agrees that
at all times its use of electric current shall never exceed the capacity of
existing feeders to the Building or the risers or wiring installation. Any
riser or risers to supply Tenant’s electrical requirements, upon written
request of Tenant, shall be installed by Landlord, at the sole cost and expense
of Tenant, if, in Landlord’s sole judgment, the same are necessary and will not
cause or create a dangerous or hazardous condition or entail excessive or
unreasonable alterations, repairs or expense or interfere with or disturb other
tenants or occupants. In addition to the installation of such riser or risers,
Landlord shall also, at the sole cost and expense of Tenant, install all other
equipment proper and necessary in connection therewith subject to the aforesaid
terms and conditions.


 


(d)           [Intentionally
Omitted]


 


(e)           Notwithstanding
anything contained herein to the contrary, Landlord shall, at Landlord’s cost
and expense, to install a separate submeter or check meter to measure
electrical consumption to the Premises for lighting and equipment purposes, and
Tenant shall pay 103% of the meter charges based upon the Electric Rates for
said consumption.


 


(f)            Landlord
shall not be liable to Tenant in any way for any loss, damage, or expense
incurred or sustained by Tenant (including any business interruption losses) as
a result of any failure, defect or change in the quantity or quality of
electric energy or other utility or service available for redistribution to the
Premises, nor for any interruption in the supply thereof, and Tenant agrees
that such service may be interrupted for inspection, repairs and replacement
for reasonable periods on reasonable advance notice to Tenant, and in the event
of emergencies without notice to Tenant.


 


(g)           Such
electric power will be furnished to Tenant by means of existing Building panel
boards, feeders, risers, wiring and other equipment.  No individual piece of equipment or any type
of fixture requiring special wiring or electric power in excess of 1600 amps at
277/480 volts, or otherwise exceeding Building capacity shall be installed,
maintained or operated by Tenant without Landlord’s consent. In addition, the
use of electricity in the Premises shall not exceed the capacity of the
existing feeders and risers to, or wiring in, the Premises without Landlord’s
consent.  Any risers or wiring required
to meet Tenant’s excess electrical


 


F-33





















 


requirements shall, upon Tenant’s written
request, be installed by Landlord (along with any related alterations, repairs
or expenses), at Tenant’s expense, but only if Landlord determines, in its sole
judgment, that the same are necessary and that same would not cause permanent
damage to the Building or the Premises, cause or create a dangerous or
hazardous condition, entail excessive or unreasonable alterations, repairs or
expenses, or interfere with or disturb other tenants or occupants in the
Building.  To Landlord’s knowledge, all
existing Building panel boards, feeders, risers, wiring and other electrical
equipment are in working condition.


 


(h)           Tenant
shall not install, maintain or operate in the Premises electrical equipment or
fixtures whose total electrical connected load exceeds the Maximum Connected
Load without making a written request for Landlord’s prior written consent
thereto.  If Landlord consents to the
installation of electrical fixtures or equipment in excess of the Maximum
Connected Load, Tenant’s use of such fixtures or equipment shall be deemed to
have commenced as of the date of Landlord’s consent thereto, and any additional
costs incurred by Landlord as a result of such excess usage (as determined by
an electrical survey to be performed by Landlord at Tenant’s sole cost and
expense) shall be paid by Tenant as Additional Rent, as billed.  Such Additional Rent shall be paid until the
particular equipment or fixtures have been removed, Tenant has advised Landlord
of such removal, and such removal is verified by Landlord or its independent
utility rate auditor or engineer, at Tenant’s expense.  In no event, however, shall Landlord be obligated
to increase the existing electrical capacity of any portion of the Building’s
electrical system, nor to provide any additional wiring or capacity to meet
Tenant’s additional requirements.


 


(i)            If
any tax is imposed upon Landlord subsequent to the date hereof with respect to
electrical energy furnished as a service to Tenant by any federal, state or
municipal authority then, unless prohibited by law or by any governmental
authority having jurisdiction thereof, Tenant shall pay to Landlord, on demand,
Tenant’s Proportionate Share of such taxes.


 


14.6         (a)           Tenant
acknowledges that Landlord shall be entitled to engage any electricity service
provider Landlord selects in its sole discretion with respect to electricity
and other utility service in the Building and/or the Property, and Tenant shall
not dispute Landlord’s selection of any such service provider.  Tenant agrees that Landlord reserves the
right, at any time and from time to time during the Term, to contract for
utility services from a different company or companies, other than the present
utility providers heretofore selected, provided that such change shall be
without cost to Tenant and electrical service to the Premises shall not be
unreasonably interrupted.


 


(b)           Tenant
further agrees, notwithstanding the foregoing, that Landlord reserves the right
to terminate the redistribution of electricity, other utilities or any
telecommunications service to the Premises at any time (but the foregoing shall
not in any way be deemed a representation that Landlord will provide any other
utilities or telecommunications services, except to the extent expressly set
forth herein), upon ninety (90) days’ written notice to Tenant, in which event
Tenant shall, in accordance with the provisions of this Section 14.6, make
application directly to the utility company servicing the Building for Tenant’s
entire separate supply of electricity or other utility or the affected
telecommunications service.  Upon the
expiration of the aforesaid ninety (90) day period, Landlord may discontinue
furnishing electric current, such other utility or the applicable
telecommunications service to the Premises, unless


 


F-34





















 


Tenant is unable to secure replacement
service, in which event Landlord shall continue such service until Tenant is
able to secure replacement service. In the event (i) Landlord elects to
terminate its redistribution of electricity, such other utility or any
telecommunications service to the Premises; or (ii) applicable Legal
Requirements require commercial building owners to permit tenants of their
facilities to utilize an alternative provider for any of the foregoing
utilities or telecommunications services (an “ASP”) and Tenant so elects to
utilize an ASP, rather than the utility company that is then servicing the
Premises, then in either such case, no such ASP shall be permitted to provide
service to Tenant or to install lines or other equipment without obtaining the
prior written consent of Landlord. Landlord’s consent under this Section 14.6
shall not be deemed any kind of warranty or representation by Landlord,
including, without limitation, as to the suitability or competence of an ASP.  Landlord may withhold its consent to a
proposed ASP if, in the reasonable exercise of its judgment, Landlord
determines that any of the following conditions have not been met:


 


(1)           Landlord
shall incur no expense whatsoever in connection with any aspect of an ASP’s
provision of its services, including, without limitation, the cost of installation,
service and materials, and the ASP agrees in writing to indemnify, defend and
hold Landlord and Landlord’s Agents harmless in connection therewith, as more
fully set forth in paragraph (6) below;


 


(2)           Prior
to commencement of any work in the Premises or the Building by an ASP, the ASP shall
supply Landlord with verification satisfactory to Landlord that the ASP is
properly insured, and financially capable of covering any uninsured damage;


 


(3)           Prior
to commencement of any work in the Premises or the Building by an ASP, the ASP
shall agree in writing to abide by any rules or regulations as are reasonably
determined by Landlord to be necessary to protect the Premises and the
Building;


 


(4)           Landlord
reasonably determines that there is sufficient unreserved space in the Common
Areas of the Building for the placement of all the ASP’s equipment and
materials, including, without limitation, the electricity risers;


 


(5)           The
ASP is licensed in the State of New Jersey and, in Landlord’s reasonable judgment,
is a reputable utility provider;


 


(6)           The
ASP agrees, in a license agreement executed by the ASP and Landlord: (x) to compensate
Landlord in a commercially reasonable amount determined by Landlord, for all
space used in the Building for storage and maintenance of the ASP’s
equipment (the “ASP Space”), and for all reasonable costs incurred by Landlord
in connection with the ASP, including but not limited to arranging access by
the ASP’s personnel and security for the ASP’s equipment; (y) that at Landlord’s
request, upon termination of the license agreement, the ASP will remove all of
the its equipment and materials from the affected portions of the Building; and
(z) to indemnity, defend and hold harmless Landlord and Landlord’s Agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages and expenses (including litigation costs and attorneys’
fees) based on, arising out of or in any way relating to (directly or
indirectly, in whole or in part) its provision of services as aforesaid, such
indemnification obligation to survive the expiration or earlier termination of
this Lease;


 


F-35





















 


(7)           The
ASP agrees that Landlord shall have the right to supervise the ASP’s
performance of any work in the Building, including but not limited to, any
installations or repairs; and


 


(8)           The
ASP agrees that Landlord shall have the right to enter the ASP Space at any
time for any of the purposes referenced in Section 12.1 of this Lease (it being
understood, however, that such right of entry shall not be construed as
imposing upon Landlord any obligation to inspect, maintain or repair the ASP
Space).


 


(c)           Notwithstanding
anything contained in this Lease, Tenant agrees that to the extent service by the
ASP is interrupted, curtailed, or discontinued for whatever reason, Landlord
shall have no obligation or liability with respect thereto.


 


(d)           Tenant
shall indemnify, defend, and hold harmless Landlord and Landlord’s Agents from
and against all claims, demands, liabilities, causes of action, suits,
judgments, damages and expenses (including litigation costs and attorneys’
fees) against Landlord or Landlord’s Agents based on, arising out of or in any
way relating to, either directly or indirectly, in whole or in part, Tenant’s
utilization of an ASP or any acts or omissions of the ASP (such indemnification
to be in addition to, and not in lieu of, any indemnification obligation
provided by the ASP pursuant to Section 14.6(b)(6) above, or as provided in
Section 15.2 hereof). Tenant’s indemnification obligations set forth herein
shall survive the expiration or earlier termination of this Lease.


 


14.7         If
Tenant uses machines or equipment (other than standard office equipment) in the
Premises which affect the temperature otherwise maintained by the
air-conditioning system, or which otherwise overload any utility, Landlord may,
following notice to Tenant and Tenant’s failure to remove such machines or
equipment within five (5) days of such notice, install supplemental air
conditioning units or other supplemental equipment in the Premises and the cost
thereof, including installation, of such equipment, meters to measure such
excess consumption, the cost of the utilities consumed thereby as indicated on
such meters, and the cost of operation, use and maintenance of such equipment,
plus an administrative fee equal to three percent (3%) of the cost thereof,
shall be paid by Tenant, as Additional Rent, upon demand.


 


14.8         So
long as Tenant’s use of water in the Premises does not, in Landlord’s
reasonable opinion, exceed that normally consumed in office settings for
ordinary drinking and lavatory purposes, the cost and expense of water shall be
included in Operating Charges.  However,
in the event Tenant’s use of water in the Premises exceeds, in Landlord’s
reasonable opinion, that normally consumed in office settings for ordinary
drinking and lavatory purposes, Landlord shall have the right to either: (i)
install and maintain, at Tenant’s sole cost and expense, water meters which
measure Tenant’s water consumption in the Premises; (ii) reasonably estimate
the amount of such excess consumption by Tenant; or (iii) engage the services,
at Tenant’s sole cost and expense, of an independent utility rate auditor or
engineer selected by Landlord, to perform a confirmatory water survey of the
Premises; and in any such case, Tenant shall pay to Landlord, as Additional
Rent within ten (10) days of receipt of a bill therefor, all charges incurred
as a result thereof, whether for water consumption in excess of


 


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normal office consumption for ordinary drinking and lavatory purposes,
equipment maintenance or the services of any such utility engineer.


 


14.9         Landlord
agrees to operate or arrange for the operation by a third party vendor for such
period during the during the term as Landlord continue to occupy a portion of
the Building, a food and beverage service or concession as a Building amenity
within the Building (the “Food Service”). 
The Food Service shall be made available to Tenant during such hours on
such days as maintained by Landlord for its own employees in the Building.  Tenant acknowledges that Landlord shall have
the sole and exclusive authority in all decisions regarding the selection of
menu items, pricing and outside vendors to operate and maintain the Food
Service.  In the event that the common
area utilized for provision of the Food Service is converted to a non-common
area by Landlord and is subsequently utilized as additional rentable square
footage, then the rentable square footage of the Premises and Tenant’s
Proportionate Share shall be reduced accordingly, as determined in the
reasonable discretion of Landlord.


 


14.10       Landlord
shall not be obligated to provide any utility or service, except as
specifically set forth in this Lease. 
Notwithstanding the foregoing, Landlord may, although under no
obligation to do so, elect to offer additional services to the Building.  Any and all costs associated with the implementation
and continued provision by Landlord of any such additional services shall not
be included in Operating Charges, but if Tenant elects to receive such
additional service shall be charged as Additional Rent to Tenant in accordance
with the Building standards implemented by Landlord.


 


14.11       In
the event that the HVAC system, electricity, water, sewer or elevator services
provided to the Premises shall cease or be interrupted so as to render the
Premises or any material portion thereof untenantable for the uses permitted
under this Lease and thereby prevents Tenant from (and Tenant, in fact ceases)
conducting its business operations therein and such cessation or interruption
has not resulted from a failure by Tenant to perform any of its obligations
hereunder, and such interruption or cessation results from a cause which is
within the Landlord’s reasonable control to remedy (such as repair to the
Building Systems), then if such cessation or interruption continues for ten (10)
consecutive days after Landlord receives notice of said cessation or
interruption from Tenant and Landlord has not commenced and diligently pursued
the necessary repairs thereto, then Tenant, upon prior written notice to
Landlord identifying its exercise of its rights under this Section 14.11, shall
be entitled to make such repairs or replacements as are necessary to restore
said services to the Premises and Landlord shall reimburse Tenant for all
reasonable costs incurred by Tenant in making such repairs or replacement
within thirty (30) days of written demand therefore by Tenant.


 


14.12       In
the event that the HVAC system, electricity, water, sewer or all passenger
elevator service provided to the Premises shall cease or be interrupted and
such interruption renders the Premises or any material portion thereof
untenantable for the uses permitted under this Lease and thereby prevents
Tenant from (and Tenant, in fact ceases) conducting its business operations
therein and such cessation or interruption has not resulted from a failure by
Tenant to perform any of its obligations hereunder, then if such cessation or
interruption and the resulting untenantability continues for a period of ten (10)
consecutive days after Tenant gives Landlord notice of said interruption or
cessation, then Tenant shall be entitled to an appropriate abatement of rent
from the tenth (10th) day after said notice is received until the service is


 


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restored and the Premises or applicable portion thereof rendered
tenantable.  Landlord shall use
commercially reasonable efforts not to interfere with the provision of any
services to the Premises during any material rehabilitation or renovation of
the Building (other than the Premises) performed by or on behalf of Landlord.


 


14.13       Tenant
shall have the right, with the prior written consent of Landlord not to be
unreasonably withheld, conditioned or delayed, to employ outside caterers for
Tenant’s employee holiday parties and related functions, provided Tenant and
said outside caterers comply with all necessary terms, conditions, rules and
regulations contained in this Lease and otherwise promulgated by Landlord in
connection with Landlord’s consent thereto.


 


14.14       Tenant
shall have the right to connect to the backup generator that services the
Landlord’s computer room currently located in the garage area of the Building
(the “Building Generator”), provided, however, (i) Landlord shall have no
obligation to continue the operation of the Building Generator, and may
discontinue its use at any time, (ii) for the duration of any period during
which Tenant shall have the benefit of the use of the Building Generator,
Tenant shall pay within ten (10) days of receipt of invoice from Landlord
Tenant’s proportionate share (as reasonably determined by Landlord) of any and
all costs and expenses incurred by Landlord in connection with the repair,
maintenance and upkeep of the Building Generator, and (iii) Landlord shall have
no liability to Tenant for any operational failure of the Building Generator at
any time, and Tenant hereby indemnifies and holds Landlord harmless from any
and all damages incurred by Tenant in connection with any such operational
failure.  Subject to compliance with
applicable laws, if the Generator is either removed from the Building by
Landlord or no longer made available for Tenant’s use, then Tenant shall have
the right to install back-up generator(s) for the exclusive use of Tenant (“Tenant’s
Generator”) on the Property in such location as may be approved by Landlord
(which approval shall not be unreasonably withheld, delayed or conditioned), in
accordance with the provisions of this paragraph.  Tenant shall furnish detailed plans and
specifications for each Tenant’s Generator, the associated fuel tank (which
shall be located above-ground) or other fuel supply source required for the
operation of Tenant’s Generator (“Tenant’s Tank”) and all wires, lines, pipes
conduits and other apparatus in connection with Tenant’s Generator to Landlord
for its prior approval, which approval shall not be unreasonably withheld,
conditioned, or delayed.  Upon approval
of Tenant’s plans and specifications, Tenant shall have the right to install
Tenant’s Generator and Tenant’s Tank, at Tenant’s expense subject to Landlord’s
reasonable supervision.   Landlord shall
not charge any supervisory fee, review charge or surcharge in connection with
this installation.  Tenant shall comply
with all applicable laws in connection with the installation and maintenance of
Tenant’s Generator, Tenant’s Tank and all lines, wiring, pipes, conduits, other
apparatus in connection therewith and Tenant shall keep the Premises, Building
and Land free and clear from liens arising from or related to the installation,
maintenance and repair thereof.   Tenant
shall be responsible for procuring whatever approvals, licenses or permits may
be required for the installation and use of Tenant’s Generator and the related
support systems or operation of any equipment served thereby.  Landlord agrees that, at no cost to Landlord,
it shall cooperate with Tenant in Tenant’s pursuit of any such approvals,
licenses, or permits, which cooperation shall include executing any necessary
owner’s consent forms.  Upon termination
or expiration of this Lease, Tenant may, at Tenant’s sole option, remove Tenant’s
Generator and any fuel tank, in which event Tenant shall repair and restore the
Property and Building to a condition comparable to that existing prior to such
installation,


 


F-38





















 


reasonable wear and tear and events of casualty and condemnation
excepted.  Landlord and Tenant shall
cooperate in the design and allocation of routing for the Generator or any
Tenant’s Generator.


 


14.15       Landlord
and Tenant hereby acknowledge that Landlord currently (i) employs one or more
security guards at the Building for the provision of security, and (ii) utilizes
an access card system for after-hours entrance into the Building.  The cost of the operation, repair and
maintenance of the access card system for the Building is currently not
included in the calculation of Operating Charges.  Tenant shall have the right, at its sole cost
and expense, to install access card readers in the elevators of the Building
restricting access to the Premises (the “Elevator Card Readers”), provided,
however, (i) Tenant complies with any and all terms, conditions and
requirements of this Lease with respect to Alterations, including, without
limitation, those requirements set forth in Article 9 herein, (ii) Tenant shall
install such Elevator Card Readers, or cause the installation any such work to
be performed during times other than Building Hours, (iii) at the time of such
installation Tenant must occupy the entire Premises, and (iv) in the event
after such installation in compliance with the terms and conditions of the
Lease the Premises shall no longer consist of the entire third floor of the
Building, then Tenant shall remove the Elevator Card Reader at Tenant’s sole
cost and expense and in accordance with the terms and conditions of this Lease.  In the event the Landlord shall discontinue both
the employment of security guards and the use of an access card system at the
Building, then Landlord and Tenant shall reasonably cooperate to establish an alternative
multi-tenant access system and other appropriate security plans and procedures
for the Building as Landlord shall deem reasonably advisable.  Tenant shall pay, as Additional Rent to
Landlord in accordance with Article 4 herein, Tenant’s Proportionate Share of
any and all costs incurred by Landlord in connection with the operation,
maintenance and repair of any multi-tenant access system installed at the
Building (including, without limitation, the access card system currently being
utilized at the Building), provided, however, that in the event any such
multi-tenant access system becomes non-functional and is unable to be repaired,
(unless such replacement was necessitated or brought about by any act or
omission of Tenant or Tenant’s Agents), Landlord shall be responsible at its
sole cost and expense for the replacement of any such multi-tenant access
system with either a similar or alternative multi-tenant access system for the
Building as determined by Landlord in its sole and absolute discretion.


 


ARTICLE XV

LIABILITY OF LANDLORD


 


15.1         Landlord
and Landlord’s Agents shall not be liable to Tenant, Tenant’s Agents or any
other person or entity for any damage (including any consequential or punitive
damage), injury, loss or claim (including claims for the interruption of or
loss to business) based on or in any way arising out of any cause whatsoever
including, without limitation, the following: repair to any portion of the
Premises or the Property; interruption in the use of the Premises or any
equipment therein; any accident or damage resulting from any use or operation
(by Landlord, Tenant or any other person or entity) of elevators or heating,
cooling, electrical, sewerage or plumbing equipment or apparatus; termination
of this Lease by reason of damage to the Premises or the Property; any fire,
robbery, theft, vandalism, mysterious disappearance or any other casualty;
actions of any other tenant of the Building or of any other person or entity;
failure or inability to furnish any service specified in this Lease; and
leakage in any part of the


 


F-39





















 


Premises or the Property from water, rain, ice or snow that may leak
into, or flow from, any part of the Premises or the Property, or from drains,
pipes or plumbing fixtures in the Premises or the Property, and except as
otherwise provided in this Lease, none of the foregoing shall be deemed a
constructive eviction, constitute a breach of any implied warranty, or entitle
Tenant to any abatement of Rent or otherwise effect any of Tenant’s obligations
hereunder.  Any property placed by Tenant
or Tenant’s Agents in or about the Premises or any other portion of the
Property, or in any vehicle parked in the Parking Area, shall be at the sole
risk of Tenant, and Landlord shall not in any manner be held responsible
therefor.  Any person receiving an
article delivered for Tenant shall be acting as Tenant’s agent for such purpose
and not as Landlord’s agent.  Notwithstanding
the foregoing provisions of this Section 15.1, Landlord shall not be released
from liability to Tenant for (a) any breach of this Lease or (b) any physical
injury to any natural person or to property (subject to the provisions of
Section 13.1(f) hereof) caused by Landlord’s gross negligence or willful
misconduct, to the extent such injury is not covered by insurance (a) carried
by Tenant or such person, or (b) required by this Lease to be carried by Tenant
(whether or not Tenant carries such required insurance); provided, however,
that Landlord shall not under any circumstances be liable to Tenant for any
consequential or indirect damages.


 


15.2         Subject
to the provisions of Section 13.3, Tenant shall indemnify, defend and hold
harmless Landlord and Landlord’s Agents from and against all claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses
(including litigation costs and attorneys’ fees) suffered by or claimed against
them, directly or indirectly, based on or arising out of, or in any way
relating to, directly or indirectly, in whole or in part: (a) use and occupancy
of the Premises or the business conducted therein, (b) any act or omission of
Tenant or Tenant’s Agents, or (c) any breach of Tenant’s obligations under this
Lease, provided, however, that Tenant shall not be liable to Landlord for any
consequential or indirect damages. 
Notwithstanding clause “(a)” of this Section 15.2, Landlord shall not be
released from liability to Tenant for any physical injury to any natural person
or to property (subject to the provisions of Section 13.1(f) hereof) caused by
Landlord’s gross negligence or willful misconduct, to the extent such injury is
not covered by insurance (i) carried by Tenant or such person, or (ii) required
by this Lease to be carried by Tenant (whether or not Tenant carries such
required insurance); provided, however, that Landlord shall not under any
circumstances be liable to Tenant for any consequential or indirect damages.
Tenant’s indemnification obligations set forth herein shall survive the
expiration or earlier termination of this Lease.


 


15.3         Subject
to the waiver set forth in Section 13.1(f) and the exceptions set forth in
Section 15.1, Landlord hereby indemnifies and holds Tenant harmless from all
expenses, costs (including reasonable attorney fees and disbursements), loss,
liability and claims based on, arising out of or resulting from any act,
omission (where there was a duty to act) or neglect of Landlord, or Landlord’s
agents, servants, employees or contractors, excluding any claim for business
interruption or consequential damages.


 


ARTICLE XVI

RULES


 


16.1         Tenant
shall at all times abide by and observe (and shall cause Tenant’s Agents to
abide by and observe) the rules specified in Exhibit C, as well as any reasonable
new or


 


F-40





















 


amended rules that Landlord or the managing agent of the Building may
promulgate from time to time for the operation and maintenance of the Property,
or that Landlord or the managing agent of the Building may promulgate from time
to time for the operation and maintenance of the Building in general), provided
that reasonable advance notice of any such new or amended rule is given to
Tenant (which notice may be distributed to Tenant at the Premises,
notwithstanding anything to the contrary set forth in Section 27.1 below),
provided same does not materially increase Tenant’s costs or decrease Tenant’s
rights under the Lease.  All rules shall
be binding upon Tenant and enforceable by Landlord as if such rules were
contained in this Lease.  Landlord shall
not enforce any rule in a manner which unreasonably discriminates among
similarly situated tenants of the Building.  In the event of any conflict between any such
rules and the other terms and provisions of this Lease, the latter shall govern
and control the resolution of such conflict.  However, nothing contained in this Lease shall
be construed as imposing upon Landlord any duty or obligation to enforce, as
against any other tenant, such rules, or the terms, conditions or covenants
contained in any other lease, and Landlord shall not be liable to Tenant for
the violation of such rules or such terms, conditions or covenants by any other
tenant or its employees, agents, assignees, subtenants, invitees or licensees.


 


ARTICLE XVII

DAMAGE OR DESTRUCTION


 


17.1         If
the Premises is totally or partially damaged or destroyed by fire or other
insured casualty, or if the Building is damaged or destroyed by fire or other
insured casualty such that Tenant is deprived of reasonable access to the
Premises, then, in either such event, but subject to the provisions of this
Article XVII, Landlord shall diligently repair and restore such damaged or
destroyed portions of the Premises and the Tenant Improvement Work in the
Premises, and/or such portions of the Common Areas of the Building as are
necessary to restore reasonable access to the Premises, to substantially the
same condition the same were in prior to such damage or destruction; provided,
however, that if in Landlord’s judgment such repair and restoration cannot be
completed within two hundred seventy (270) days from the date of such damage or
destruction (taking into account, among other factors, the time needed for
effecting a satisfactory settlement with any insurance company involved,
removal of debris, preparation of plans, and issuance of all required
governmental permits), then Landlord shall have the right to terminate this
Lease by giving Tenant written notice of termination within sixty (60) days
after the occurrence of such damage or destruction (“Landlord’s Notice”), which
notice shall be effective thirty (30) days after the date thereof.  If Landlord does not elect to terminate the
Lease, Landlord’s Notice shall specify whether in Landlord’s judgment, the
Premises or those portions of the Building affecting the use and enjoyment of
the Premises can be reconstructed within two hundred seventy (270) days from
the occurrence of such fire or casualty. 
If Landlord’s Notice indicates that such reconstruction of the Premises
or those portions of the Building affecting the use and enjoyment of the
Premises shall exceed two hundred seventy (270) days and Landlord does not
elect to terminate the Lease as provided in Landlord’s Notice, Tenant shall
have the right, to be exercised within thirty (30) days after receipt of
Landlord’s Notice, to elect, by notice to Landlord, to cancel this Lease
(hereinafter called “Tenant’s Notice”).  If
(a) Landlord indicates in Landlord’s Notice that the Premises can be restored
within two hundred seventy (270) days and the Premises is not restored within
such two hundred seventy (270) day period, or (b) Landlord indicates in
Landlord’s Notice that it will take a period of time longer than two hundred
seventy (270) days to restore the Premises,


 


F-41





















 


Tenant has not previously elected to terminate this Lease and the
Premises is not restored within such longer period of time, then this Lease
may, at the election of Tenant, be terminated by written notice delivered to
Landlord from Tenant at any time after the expiration of the two hundred
seventy (270) day period or such longer period, as applicable, which notice
shall be effective forty-five (45) days after the giving of such notice;
provided, however, that such termination shall only be effective if the Building
is not restored by Landlord within such forty-five (45) day period.   If this Lease is terminated pursuant to this
Article XVII, then Base Rent and any recurring items of Additional Rent which
are determined on a per square foot basis (including but not limited to
Operating Charges and Taxes) shall be apportioned (based on the portion of the
Premises which is rendered unusable as a direct result of such damage or
destruction) and paid to the date of termination.  If this Lease is not so terminated by either Landlord
or Tenant as hereinabove permitted, then until Landlord’s repair and
restoration of the Premises is substantially complete (or would have been
complete but for any delay(s) caused by Tenant or Tenant’s Agents), then to the
extent Landlord receives the proceeds of any rent abatement insurance, Tenant
shall only be required to pay Base Rent and any recurring items of Additional
Rent which are determined on a per square foot basis for the portion of the
Premises that is usable while such repair and restoration is being made.  After receipt of all insurance proceeds,
Landlord shall proceed with such repair and restoration of the Premises and the
Building.  However, Landlord shall not be
required to repair or restore any Alterations or any other improvements or
contents of the Premises (including, without limitation, Tenant’s trade
fixtures and other personal property).


 


17.2         Notwithstanding
the foregoing provisions of Section 17.1, and in addition thereto, (i) Landlord
shall also have the right to terminate this Lease if: (1) insurance proceeds
payable to Landlord will, in Landlord’s judgment, be insufficient to pay the
full cost of such repair and restoration, (2) any Mortgagee fails or refuses to
make such insurance proceeds available for such repair and restoration, (3)
zoning or other applicable Legal Requirements do not permit such repair and
restoration, (4) alteration or reconstruction of fifty percent (50%) or more of
the Building shall, in Landlord’s sole opinion, be required (whether or not the
Premises shall have been damaged by such fire or casualty), (5) there is any
substantial loss to the Building that is not covered by insurance policies
required to be carried by Landlord herein, (6) more than fifty percent (50%) of
the Premises is rendered unusable as a result of such fire or casualty or (7)
more than twenty-five percent (25%) of the Premises is rendered unusable as a
result of any fire or casualty occurring during the last twenty-four (24)
months of the Term, and (ii) Tenant shall also have the right to terminate this
Lease if more than fifty percent (50%) of the Premises is rendered unusable as
a result of any fire or casualty occurring during the last twelve (12) months
of the Term.


 


17.3         Tenant
hereby waives all claims (i) for any damage or injury resulting from any damage
or destruction, (ii) for any loss of profits or interruption of business
resulting from Tenant’s inability to use and occupy the Premises or any part
thereof as a result of any damage or destruction, or (iii) by reason of any
required surrender of possession of the Premises pursuant to this Article XVII.
Tenant also waives the benefit of New Jersey Revised Statutes, Title 46,
Chapter 8, Sections 6 and 7, and agrees that Tenant will not be relieved of the
obligation to pay Rent in case of damage or destruction to the Premises or the
Property, except as expressly provided in Section 17.1 above.


 


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ARTICLE XVIII

CONDEMNATION


 


18.1         If
one-third (1/3) or more of the Premises, or the use or occupancy thereof, shall
be taken or condemned by any governmental or quasi-governmental authority for
any public or quasi-public use or purpose, or sold under the threat of a taking
or condemnation (collectively, “condemned”), then this Lease shall terminate on
the day prior to the date title thereto vests in such authority and Base Rent
and any recurring items of Additional Rent which are determined on a per square
foot basis shall be apportioned as of such date.  If less than one-third (1/3) of the Premises
or the use and occupancy thereof is condemned, then this Lease shall continue
in full force and effect as to the part of the Premises not so condemned, and
as of the date title vests in such authority, Base Rent, Additional Rent, the number
of Parking Spaces, and any other items which are determined on a per square
foot basis shall be proportionately reduced, based on the amount of square
footage taken from the Premises, in relation to the total square footage in the
Premises immediately prior to such condemnation.  Notwithstanding anything herein to the
contrary, if twenty-five percent (25%) or more of the Land or the Building is
condemned, whether or not any portion of the Premises is condemned, Landlord
shall have the right, following its receipt of notice of such condemnation, to
terminate this Lease as of the date title vests in such authority, or on such
earlier date selected by Landlord, provided that in no event may Landlord
terminate the Lease on less than thirty (30) days’ notice to Tenant.  If twenty (20%) percent or more of the Tenant’s
parking allocation (unless alternative parking spaces are provided) is thus
taken or sold, Tenant may terminate this Lease by giving written notice thereof
to Landlord in which event this Lease shall terminate as of the date when
physical possession of such portion of the Property is taken by the condemning
authority.


 


18.2         All
awards, damages and other compensation paid or payable on account of such
condemnation shall belong to Landlord, and Tenant hereby assigns to Landlord
all rights to such awards, damages and compensation.  Accordingly, Tenant shall not make any claim
against Landlord or such authority for any portion of such award, damages or
compensation, including, without limitation, any award, damages or compensation
attributable to damage to the Premises, value of the unexpired portion of the
Term, loss of profits or goodwill, leasehold improvements or severance damages.
Nothing contained herein, however, shall prevent Tenant from pursuing a
separate claim against the authority for relocation expenses and for the
then-unamortized value of furnishings, equipment and trade fixtures installed
in the Premises at Tenant’s expense which Tenant is entitled pursuant to this
Lease to remove at the expiration or earlier termination of the Term, provided
that such claim shall in no way diminish the award, damages or compensation
payable to or recoverable by Landlord in connection with such condemnation.


 


18.3         If
all or any portion of the Premises or the Building is condemned temporarily for
any public or quasi-public use or purpose (including, without limitation, for
any public safety or anti-looting measure), the Term shall not be reduced or
affected thereby, and Tenant shall continue to pay Rent without any reduction
or abatement and, except to the extent Tenant is prevented from doing so by the
direct order of the condemning authority, Tenant shall continue to perform its
other obligations hereunder; however, Tenant shall be entitled to receive any
award or payment made by the condemning authority as and to the extent such
temporary taking impacts Tenant’s use of the Premises.


 


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ARTICLE XIX

DEFAULT


 


19.1         Each
of the following shall constitute an “Event of Default’ hereunder:


 


(a)           Tenant’s
failure to pay when due any Base Rent, Additional Rent or other sum, provided,
however, that Tenant shall be afforded, in each instance, a period of five (5) business
days following Landlord’s delivery to Tenant of written notice of such failure
to pay, in which to fully cure such failure to pay;


 


(b)           Tenant’s
desertion or abandonment of the Premises, or, unless Tenant continues to make
timely payment of Base Rent, Additional Rent and all other sums due and payable
pursuant to the terms and conditions of this Lease, failure to continuously
occupy any substantial portion of the Premises;


 


(c)           an
Event of Bankruptcy as specified in Article XX;


 


(d)           the
dissolution or liquidation of Tenant, Guarantor (if any), or any other person
or entity liable for Tenant’s obligations hereunder (including, without
limitation, any general partner of Tenant, or, if Tenant is a limited liability
company, any member of Tenant [such other person or entity which is liable for
Tenant’s obligations hereunder being hereinafter collectively referred to as a “General
Partner”]);


 


(e)           any
Environmental Default as specified in Section 25.2, or a default under Section
25.3(a),


 


(f)            any
subletting, assignment, transfer, mortgage or other encumbrance of the Premises
or this Lease in violation of Article VII;


 


(g)           Tenant’s
failure to execute and deliver to Landlord any document required pursuant to
the provisions of Sections 21.1, 21.2 and/or 21.3 within the time periods
provided therein;


 


(h)           the
submission by Tenant, Guarantor (if any), or any other person or entity liable
for Tenant’s obligations hereunder (including, without limitation, a General
Partner), either before or after execution hereof, to Landlord of any
information that is materially false or misleading (including, without
limitation, a financial statement containing any material inaccuracy or
omission);


 


(i)            any
breach or default hereunder which according to an express provision of this
Lease is an immediate Event of Default under any provision of this Lease;


 


(j)            Tenant’s
failure to perform or observe any covenant or condition of this Lease not
otherwise specifically described in this Section 19.1, which failure continues
for thirty (30) days after Landlord delivers written notice thereof to Tenant,
or such shorter period as is appropriate if such failure can reasonably be
cured in a shorter period, or such longer period as may be necessary due to
circumstances beyond Tenant’s control (i.e., if Tenant is in any way delayed or
prevented from performing any such obligation due to fire, act of God,
governmental


 


F-44





















 


act or failure to act, strike, labor dispute,
inability to procure materials, or any other cause beyond Tenant’s reasonable
control [whether similar or dissimilar to the foregoing events]), so long as
Tenant begins to cure such default within thirty (30) days or such shorter
period of time as is appropriate, promptly notifies Landlord in reasonable
detail of any such circumstances beyond Tenant’s control, and thereafter
diligently and without interruption prosecutes such cure to completion as
quickly as is practicable under the circumstances; or


 


(k)           any
default beyond any applicable notice, cure or grace period by Tenant,
Guarantor, (if any), or any affiliate of Tenant or Guarantor (if any) under any
other instrument entered into, with or for the benefit of Landlord or any
affiliate of Landlord with respect to the Premises or the Building.


 


19.2         (a)           If
an Event of Default shall occur, whether prior to or after the Commencement
Date, Landlord shall have the right, at its sole option, to terminate this
Lease upon three (3) days’ notice to Tenant. In addition, with or without
terminating this Lease, Landlord may re-enter the Premises, terminate Tenant’s
right of possession and take possession of the Premises upon three (3) days’
notice to Tenant.  The aforesaid notice
provisions of this Section 19.2(a) shall operate as a notice to quit, and
Tenant hereby waives any other notice to quit or notice of Landlord’s intention
to re-enter the Premises or terminate this Lease, to which Tenant would
otherwise be entitled at law, in equity or otherwise.  If necessary, Landlord may proceed to recover
possession of the Premises under applicable Legal Requirements, or by such
other lawful means, including re-entry by force, if necessary.  If Landlord elects to terminate this Lease and/or
elects to terminate Tenant’s right of possession, everything contained in this
Lease on the part of Landlord to be done and performed shall cease (other than
Landlord’s services as set forth in Section 14.1), without prejudice, however,
to Tenant’s liability for all Base Rent, Additional Rent and other sums
specified herein.  While any Event of
Default is continuing, Landlord shall have the immediate right, at its sole
option and regardless of whether or not this Lease and/or Tenant’s right of
possession is terminated, to suspend (and after the occurrence of five Events
of Default throughout the term of the Lease, permanently to rescind) any unexercised
renewal or expansion right contained in this Lease (provided that Landlord
shall be entitled to exercise any and all other remedies granted to Landlord
hereunder in connection with the occurrence of any single Event of Default
under this Lease), and to grant or withhold any consent or approval pursuant to
this Lease in its sole and absolute discretion, irrespective of the standard
for Landlord’s consent or approval in any particular instance as set forth in
this Lease.


 


(b)           If
an Event of Default occurs which results in Landlord’s recovering possession of
the Premises, Landlord will use reasonable efforts to relet the Premises in
order to so mitigate its damages, provided that Landlord shall retain the
right, in the exercise of its sole and absolute judgment, to approve any
tenant, to lease the Premises in whole, in part(s), or together with other
premises in the Building, and to determine the terms and conditions of any
leases, including, without limitation, rent, length of term (which may extend
beyond the date on which the Term would have expired, but for such Event of
Default), and rent concessions and/or construction allowances.  For purposes of this Section 19.2(b), Landlord
shall be deemed to have utilized reasonable efforts to mitigate damages
resulting from an Event of Default by Tenant if, following such recovery of
possession as aforesaid, Landlord shall have listed the Premises with a
commercial real estate broker in the Geographic Area having not less than ten
(10) years’


 


F-45





















 


experience in commercial real estate.  If it is Landlord’s standard practice to
engage the services of an exclusive real estate broker for leasing purposes at
the Building, Landlord shall not be required to list the availability of the
Premises with any broker other than the exclusive broker for the Building in
order to satisfy the “reasonable efforts” reletting standard hereunder, and if
it is not Landlord’s standard practice to engage the services of an exclusive
real estate broker for leasing purposes at the Building, Landlord shall not be
required to list the availability of the Premises with more than one broker in
order to satisfy the “reasonable efforts” reletting standard hereunder.  Notwithstanding anything contained herein,
Landlord shall not be obligated to display the Premises to prospective tenants
if Landlord has other premises available in the Building or at any other
location owned by Landlord or its affiliates within the Geographic Area, or to
relocate any other tenant in the Building in an effort to enhance its ability
to relet the Premises.  Landlord shall
not be liable for, nor shall Tenant’s obligations hereunder be diminished by
reason of, any failure by Landlord to relet all or any portion of the Premises
or to collect any rent due upon such reletting.


 


(c)           Whether
or not this Lease and/or Tenant’s right of possession is terminated or any suit
is instituted, Tenant shall be immediately liable for the payment to Landlord
of any Base Rent, Additional Rent, damages or other sums which may be due or
sustained prior to such default, and for all costs, fees and expenses
(including, but not limited to, court costs, reasonable attorneys’ fees and
expenses of litigation) incurred by Landlord in (i) in obtaining possession of
the Premises; (ii) in removing and/or storing Tenant’s or any other occupant’s
personalty; (iii) in repairing, altering, remodeling or otherwise putting the
Premises into such condition which is likely to be acceptable to prospective
tenants; (iv) in reletting all or portions of the Premises (including, without
limitation, brokerage commissions, costs of tenant finish work, architectural
and legal fees, rental concessions, allowances or other inducements granted to
the replacement tenant, and costs to prepare and negotiate a new lease
agreement(s)); (v) in performing any of Tenant’s obligations which Tenant
failed to perform hereunder; (vi) in connection with the then-unamortized
portion of any brokerage or similar commissions and fees, rent concessions,
fit-up costs and/or construction allowances granted by Landlord in connection with
this Lease or the Premises, all of which amounts shall be amortized over the initial
Term hereof; and (vii) in pursuit of Landlord’s other rights and remedies
hereunder due to such Event of Default, plus any other damages suffered or
incurred by Landlord on account or as a consequence of such default by Tenant.
In addition to the foregoing sums, which shall, at Landlord’s sole option,
either become immediately due and payable by Tenant (in which event a judgment
against Tenant and/or any Guarantor in such amount may be filed by Landlord at
any time following such Event of Default), or be added to the amount due
pursuant to paragraph (1) or (2) below, as applicable, Tenant shall also be
liable for additional damages which, at Landlord’s election shall be, at
Landlord’s sole option:


 


(1)           an
amount equal to (x) the Base Rent, Additional Rent and other sums due or which
would have become due and payable under this Lease from the date of Tenant’s
default through the date on which the Term would have expired but for Tenant’s
default, minus (y) the amount of rental, if any, which Landlord actually
receives during such period from others to whom the Premises may be rented
(other than any additional rent received by Landlord as a result of any failure
of such other person to perform any of its obligations to Landlord), which
amount shall be computed and payable in monthly installments, in advance, on
the first day of each calendar month following Tenant’s default and continuing
until the date on which the


 


F-46





















 


Term would have expired but for Tenant’s
default, it being understood that (A) separate suits may be brought from time
to time to collect any such damages for any month(s) (and any such separate
suit shall not in any manner prejudice the right of Landlord to collect any
damages for any subsequent month(s)), or Landlord may defer initiating any such
suit until after the expiration of the Term (in which event such deferral shall
not be construed as a waiver of Landlord’s rights as set forth herein and
Landlord’s cause of action shall be deemed not to have accrued until the
expiration of the Term), and (B) if Landlord so elects to bring suits from time
to time prior to reletting the Premises, Landlord shall be entitled to its full
damages through the date of the award of damages without regard to any Base
Rent, Additional Rent or other sums that are or may be projected to be received
by Landlord upon reletting of the Premises; or


(2)           an
amount equal to the sum of (x) all Base Rent, Additional Rent and other sums
due or which would be due and payable under this Lease from the date of Tenant’s
default through the date on which the Term would have expired but for Tenant’s
default, minus (y) any base rent and other customary sums payable as rental
which Tenant proves by a preponderance of the evidence would be received by
Landlord upon reletting of the Premises and thereafter through the date on
which the Term would have expired, but for Tenant’s default.  The amount determined pursuant to this
paragraph (2) shall be discounted using a discount factor of four (4%) percent
per annum to then present worth, and the resulting amount shall be paid to
Landlord in a lump sum on demand. Landlord may bring suit to collect any such
damages at any time after an Event of Default shall have occurred.


 


If Landlord elects to proceed under paragraph
(1) above, it may at any time thereafter elect to proceed under paragraph (2)
above.  In the event Landlord relets the
Premises for a term extending beyond the scheduled expiration of the Term,
Tenant shall not be entitled to apply any such base rent, additional rent or
other sums generated or projected to be generated by such other premises or the
period extending beyond the scheduled expiration of the Term (collectively, the
“Extra Rent”) against Landlord’s damages.  Similarly, in proving the amount that would be
received by Landlord upon a reletting of the Premises as set forth in clause “(y)”
of paragraph (2) above, Tenant shall not take into account the Extra Rent.  The provisions contained in this Section 19.2
shall be in addition to, and shall not prevent the enforcement of, any claim
Landlord may have against Tenant for anticipatory breach of this Lease, it
being agreed that in the event of an anticipatory breach, Landlord shall have all
rights and remedies set forth in this Section 19.2 or otherwise available at
law or in equity.  Nothing herein shall
either be construed to affect or prejudice Landlord’s right to prove, and claim
in full, unpaid rent accrued prior to termination of this Lease, or to limit or
prejudice the right of Landlord to prove for and obtain as liquidated damages
by reason of such termination, an amount equal to the maximum allowed by any
statute or rule of law in effect at the time, whether or not such amount shall
be greater than, equal to, or less than the amount determined pursuant to the
foregoing provisions of this Section 19.2.  If Landlord is entitled, or Tenant is
required, pursuant to any provision hereof to take any action upon the
termination of the Term, then Landlord shall be entitled, and Tenant shall be
required, to also take such action upon the termination of Tenant’s right of
possession.


 


19.3         (a)           Tenant
hereby expressly waives, for itself and all persons claiming by, through or
under it, any right of redemption, re-entry or restoration of the operation of this
Lease under any present or future Legal Requirement, as well as any rights it
may have under N.J.S.A. 2A:18-60.


 


F-47





















 


(b)           All
rights and remedies of Landlord set forth in this Lease are cumulative and in
addition to all other rights and remedies available to Landlord at law or in
equity, including those available as a result of any threatened or anticipatory
breach of this Lease.  The exercise by
Landlord of any such right or remedy shall not prevent the concurrent or
subsequent exercise of any other right or remedy.  No delay or failure by Landlord to exercise
any of Landlord’s rights or remedies, or to enforce any of Tenant’s
obligations, shall constitute a waiver of any such rights, remedies or
obligations.  Landlord and Tenant shall
not be deemed to have waived any default by the other party unless such waiver
is expressly set forth in a written instrument signed by the non-defaulting party,
and no custom or practice which may evolve between Landlord and Tenant in the
administration of the terms hereof shall give rise to any waiver by Landlord or
Tenant, or otherwise diminish Landlord’s or Tenant’s right to insist upon the
defaulting party’s performance in strict accordance with the provisions of this
Lease.  If Landlord or Tenant waives in
writing any default by the other party, such waiver shall not be construed as a
waiver of any covenant, condition or agreement set forth in this Lease except
as to the specific circumstance(s) described in such written waiver.


 


19.4         If
Landlord shall institute proceedings against Tenant and a compromise or
settlement thereof shall be made, such compromise or settlement shall not
constitute a waiver of the covenant, condition or agreement which is the
subject of such compromise or settlement, or a waiver of any other covenant,
condition or agreement set forth herein, nor of any of Landlord’s rights
hereunder.  If Tenant shall institute
proceedings against Landlord and a compromise or settlement thereof shall be
made, such compromise or settlement shall not constitute a waiver of the
covenant, condition or agreement which is the subject of such compromise or
settlement, or a waiver of any other covenant, condition or agreement set forth
herein, nor of any of Tenant’s rights hereunder.


 


19.5         If
Tenant fails to make any payment to any third party or to do any act herein
required to be made or done by Tenant after the expiration of ten (10) days’
notice from Landlord (or such shorter period of time as is provided in any
other provision of this Lease, or on no prior notice in the case of any
emergency, whether real or apparent), then, in addition to Landlord’s other
rights hereunder, Landlord may, but shall not be required to, make such payment
or do such act.  The taking of such
action by Landlord shall not be considered a cure of such default by Tenant or
prevent Landlord from pursuing any remedy to which it is otherwise entitled as
provided herein.  If Landlord elects to
make such payment or do such act, then all expenses incurred by Landlord, plus
interest thereon at the Default Interest Rate, from the date incurred by
Landlord to the date of payment thereof by Tenant, shall constitute Additional
Rent due hereunder and shall be paid within ten (10) days of Landlord’s invoice
therefor.  This Section 19.5 is in
addition to, and not in lieu of, any specific “self-help” rights Landlord may
have elsewhere in this Lease.


 


ARTICLE XX

BANKRUPTCY


 


20.1         An
“Event of Bankruptcy” is the occurrence with respect to Tenant, Guarantor or a
General Partner, of any of the following: (a) such person or entity becoming
insolvent, as that term is defined in Title 11 of the United States Code (the “Bankruptcy
Code”) or under the insolvency laws of any state (the “Insolvency Laws”); (b)
the appointment of a receiver or


 


F-48





















 


custodian for any property of such person or entity, or the institution
of a foreclosure or attachment action upon any property of such person or
entity; (c) the filing by such person or entity of a voluntary petition under
the provisions of the Bankruptcy Code or any Insolvency Laws; (d) the filing of
an involuntary petition against such person or entity as the subject debtor
under the Bankruptcy Code or any Insolvency Laws, which either (i) is not
dismissed within sixty (60) days of the filing thereof, or (ii) results in the
issuance of an order for relief against the debtor; or (e) such person or
entity making or consenting to an assignment for the benefit of creditors or a
composition of creditors.


 


20.2         Upon
the occurrence of an Event of Bankruptcy, Landlord shall have all rights and
remedies available pursuant to Article XIX; provided, however, that while a
case in which Tenant is a debtor under the Bankruptcy Code, Landlord’s right to
terminate this Lease shall be subject, if and only to the extent required by
the Bankruptcy Code, to any rights of Tenant or its trustee in bankruptcy
(collectively, “Trustee”) to assume or assume and assign this Lease pursuant to
the Bankruptcy Code.  After the
commencement of such case: (a) Trustee shall perform all post-petition
obligations of Tenant under this Lease; and (b) if Landlord is entitled to damages
(including, without limitation, unpaid rent) pursuant to the terms of this
Lease, then all such damages shall be entitled to administrative expense
priority to the fullest extent permitted by the Bankruptcy Code.  Any person or entity to which this Lease is
assigned pursuant to the Bankruptcy Code shall be deemed without further act or
deed to have assumed all of the obligations arising under this Lease on and
after the date of assignment, and any such assignee shall, upon request,
execute and deliver to Landlord an instrument confirming such assumption.  Trustee shall not have the right to assume or
assume and assign this Lease unless Trustee promptly (i) cures all defaults
under this Lease, (ii) compensates Landlord for all damages incurred as a
result of such defaults, (iii) provides adequate assurance of future
performance on the part of Trustee as debtor in possession or Trustee’s
assignee, and (iv) complies with all other requirements of the Bankruptcy Code.
 If Trustee fails to assume or assume and
assign this Lease in accordance with the requirements of the Bankruptcy Code
within sixty (60) days after the initiation of such case, then Trustee shall be
deemed to have rejected this Lease.  If
this Lease is rejected or deemed rejected, then Landlord shall have all rights
and remedies available to it pursuant to Article XIX.  Adequate assurance of future performance shall
require, among other things, that the following minimum criteria be met: (1)
Trustee must pay its estimated pro-rata share of the cost of all services
performed or provided by Landlord (whether directly or through agents or
contractors and whether or not previously included as part of Base Rent) in
advance of the performance or provision of such services; (2) Trustee must
agree that Tenant’s business shall be conducted in a first-class manner, and
that no liquidating sale, auction or other non-first class business operation
shall be conducted in the Premises; (3) Trustee must agree that the use of the
Premises as stated in this Lease shall remain unchanged and that no prohibited
use shall be permitted; (4) Trustee must agree that the assumption or
assumption and assignment of this Lease will not violate or affect the rights
of other tenants of the Building; (5) Trustee must pay at the time the next
monthly installment of Base Rent is due, in addition to such installment, an
amount equal to the monthly installments of Base Rent and recurring items of
Additional Rent due for the next six (6) months thereafter, such amount to be
held as a security deposit (in addition to, and not in lieu of, the Security
Deposit); (6) Trustee must agree to pay, at any time Landlord draws on the
security being deposited pursuant to this Article XX, the amount necessary to
restore such security to its original amount; (7) Trustee must comply with all
duties and obligations of Tenant under this


 


F-49





















 


Lease; and (8) all assurances of future performance specified in the
Bankruptcy Code must be satisfied.


 


ARTICLE XXI

SUBORDINATION; ATTORNMENT; ESTOPPEL CERTIFICATES


 


21.1         This
Lease is subject and subordinate to the lien, provisions, operation and effect
of all Mortgages, to all funds and indebtedness intended to be secured thereby,
and to all renewals, extensions, modifications, consolidations, replacements or
refinancings thereof. The holder of any Mortgage to which this Lease is
subordinate shall have the right (subject to any required approval of the
holders of any other Mortgage that is superior to such Mortgage) at any time to
unilaterally declare this Lease to be superior to such Mortgage.  Landlord represents there is no Mortgage as
of the date of this Lease.  Although no
instrument or act on the part of Tenant shall be necessary to effectuate such
subordination, Tenant shall, nevertheless, within ten (10) business days after
request therefor, execute, acknowledge and deliver any reasonable documents
confirming such subordination as may be submitted by Landlord or the holder of
such Mortgage.  If within five (5) days
after a second request therefor which in bolded capital letters expressly so
states if such reasonable documents are not delivered by Tenant that such
failure shall be considered an Event of Default, then Tenant’s failure to
deliver such reasonable documents shall be considered an Event of Default under
this Lease.  Notwithstanding the
provisions of this Section 21.1, the subordination of this Lease to any future
Mortgages shall be conditioned on Landlord’s delivery to Tenant of a
Subordination, Non-Disturbance and Attornment Agreement (“SNDA”) from the
holder of such Mortgage utilizing such Mortgagee’s standard form of SNDA
(provided that such form is consistent with the provisions of Section 21.2).  Landlord shall have no liability to Tenant
if, for any reason whatsoever, Tenant shall not receive an SNDA utilizing such
Mortgagee’s standard form of SNDA.  The
failure of Tenant to receive an SNDA shall not relieve or release Tenant from
any of its obligations under this Lease, but in such event Tenant shall not be
obligated to subordinate this Lease and Tenant’s rights hereunder to any
Mortgage until and unless it receives said SNDA.  Any and all processing charges customarily assessed
by any Mortgagee in connection with any request for, or any granting of an SNDA
shall be borne by Tenant.


 


21.2         Tenant
waives the provisions of any law now or hereafter in effect which may give or
purport to give Tenant any right to terminate this Lease in the event any
foreclosure proceeding is prosecuted or completed, or in the event the Property
or any portion thereof or Landlord’s interest therein is transferred to
Mortgagee or any other party by foreclosure, by deed in lieu of foreclosure,
power of sale or other related proceeding or remedy in connection with
Mortgagee’s interest.  Tenant shall attorn
to such transferee and shall recognize such transferee as the landlord under
this Lease.  Tenant agrees that upon any
such attornment, such transferee shall not be (a) bound by any payment of Base
Rent or Additional Rent more than one (1) month in advance to any prior
landlord, (b) bound by any termination, amendment or modification of this Lease
made without the consent of the Mortgagee existing as of the date of such
termination, amendment or modification provided Tenant was notified of the
existence of such Mortgagee, (c) liable for damages for any breach, act or
omission of any prior landlord, except to the extent is a continuing default
after notice of such breach, act or omission from Tenant to the Mortgagee or
transferee, (d) bound to return, credit against Tenant’s obligations


 


F-50





















 


hereunder, or otherwise account for any security or rental deposit made
by Tenant which is not delivered or paid over to such transferee, or (e)
subject to any offset, abatement, defense, claim, counterclaim or deduction
which Tenant might have against any prior landlord; provided, however, that
after succeeding to Landlord’s interest under this Lease, such transferee shall
agree to perform, in accordance with the terms of this Lease, all obligations
of Landlord under this Lease.  Although
no instrument or act on the part of Tenant shall be necessary to effectuate
such attornment, Tenant shall, nevertheless, execute, acknowledge and deliver
any reasonable documents submitted to Tenant confirming such attornment as may
be submitted by Landlord or such transferee, subject to the same time periods
for deliver as set forth in Section 21.1.  Any such transferee shall have no liability or
responsibility under or pursuant to the terms of this Lease or otherwise after
it ceases to own an interest in the Building.  Nothing in this Lease shall be construed to
require Mortgagee to see to the application of the proceeds of any loan, and Tenant’s
agreements set forth herein shall not be impaired on account of any
modification of the documents evidencing and securing any such loan.


 


21.3         If
any prospective or current Mortgagee requires modifications to this Lease, then
provided such modifications do not adversely affect Tenant’s use of the Premises
as herein permitted, and do not increase Tenant’s obligations, decrease Tenant’s
rights or reduce Landlord’s obligations hereunder, Landlord may submit to
Tenant an amendment to this Lease incorporating such required modifications,
and Tenant shall execute, acknowledge and deliver such amendment to Landlord
promptly upon Landlord’s request therefor.


 


21.4         If:
(a) any portion of the Property is at any time subject to a Mortgage, (b) this
Lease and the Rent payable hereunder is assigned to the Mortgagee, and (c)
Tenant is given notice of such assignment, including the name and address of
the assignee, then Tenant shall not exercise any rights it may have to
terminate this Lease or to pursue any other remedies for any default on the
part of Landlord without first giving notice, in the manner provided elsewhere
in this Lease for the giving of notices, to such Mortgagee, specifying the
default in reasonable detail, and such Mortgagee shall have a reasonable period
of time (but shall not be obligated) to cure such default for and on behalf of
Landlord, except that (i) such Mortgagee shall have at least thirty (30) days
to cure the default; (ii) if such default cannot be cured with reasonable
diligence within thirty (30) days and does not affect the habitability of the
Premises and Mortgagee within the thirty (30) days notifies Tenant of its
intent to cure, commences such cure and thereafter diligently pursues such cure,
such Mortgagee shall have such additional time as may be reasonably necessary
to cure the default; and (iii) if the default does not affect the habitability
of the Premises and cannot reasonably be cured without such Mortgagee’s having
obtained possession of the Building or the Property (as applicable) and
Mortgagee promptly institutes and diligently pursues appropriate legal
proceedings to obtain possession of the Property, such Mortgagee shall have
such additional time as may be reasonably necessary under the circumstances to
so obtain possession, and thereafter to cure the default.  Any cure of Landlord’s default by such
Mortgagee shall be treated as performance by Landlord.


 


21.5         At
any time and from time to time, upon not less than ten (10) business days’
notice, Tenant or Landlord shall execute, acknowledge and deliver to Landlord or
Tenant and/or any other party designated by Landlord or Tenant, a written
statement certifying: (a) that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force
and effect as modified and stating the modifications); (b) the dates to


 


F-51





















 


which Rent and any other charges hereunder have been paid; (c) whether
or not, to Tenant’s or Landlord’s best knowledge, Landlord or Tenant is in
default in the performance of any obligation hereunder and, if so, specifying
in reasonable detail the nature of such default; (d) the address to which
notices to Tenant or Landlord are to be sent; (e) that Tenant has accepted the
Premises and that all work thereto has been completed (or if such work has not
been completed, specifying in reasonable detail the incomplete work); (f) that
Tenant’s then-current use of the Premises does not involve the generation,
manufacture, refining, transportation, treatment, storage, handling or disposal
of any Hazardous Materials (as hereinafter defined); and (h) such other matters
as Landlord or Tenant may reasonably request.  Any such statement may be relied upon by any
owner, Mortgagee, prospective Mortgagee, or prospective purchaser of the
Property or any portion thereof, or any other person or entity designated by
Landlord.  If within five (5) days after
a second request therefor which in bolded capital letters expressly so states if
any such statement is not delivered by Tenant or Landlord as the case may be,
then all matters contained in such statement as prepared by Landlord or Tenant
shall be deemed true and accurate.


 


ARTICLE XXII

HOLDING OVER; END OF TERM


 


22.1         If
Tenant holds over possession of the Premises beyond the Expiration Date or
prior expiration of the Term, such holding over shall not be deemed to extend
the Term or renew this Lease but such holding over shall continue upon the
terms covenants and conditions of this Lease as a tenant at will except that
Tenant agrees that the charge for use and occupancy of the Premises for each
calendar month or portion thereof that Tenant holds over (even if such part
shall be one day) shall be a liquidated sum equal to one-twelfth (1/12th) of 150%
of the Base Rent and Additional Rent required to be paid by Tenant during the
calendar year preceding the Expiration Date or earlier expiration of the Term
for the period beyond the Expiration Date or prior expiration of the Term.  The parties recognize and agree that the
damage to Landlord resulting from any failure by Tenant to timely surrender
possession of the Premises will be extremely substantial, may exceed the amount
of the monthly Base Rent and Additional Rent payable hereunder and will be
impossible to accurately measure.  If the
Premises are not surrendered within thirty (30) days of the Expiration Date or
prior expiration of the Term, in addition to the use and occupancy charge set
forth above, Tenant shall indemnify and hold harmless Landlord against any and
all losses and liabilities resulting therefrom, including, without limitation,
any claims made by any succeeding tenant founded upon such delay.  Nothing contained in this Lease shall be
construed as a consent by Landlord to the occupancy or possession by Tenant of
the Premises beyond the Expiration Date or prior expiration of the Term, and
Landlord, upon said Expiration Date or prior expiration of the Term, or at any
time thereafter (and notwithstanding that Landlord may accept from Tenant one
or more payments called for by this Section 22.1), shall be entitled to the
benefit of all legal remedies that now may be in force or may be hereafter
enacted relating to the immediate repossession of the Premises.  The provisions of this Article shall survive
the Expiration Date or earlier expiration of the Term.


 


22.2         Tenant
shall suffer no waste or injury to any part of the Premises and shall, upon the
Expiration Date or earlier termination of the Term, surrender the Premises in
neat and clean order and in a condition equal to or better than the condition
of the Premises on the


 


F-52





















 


Commencement Date, except for ordinary wear and tear, casualty damage
and repairs for which Landlord is responsible.  If Tenant fails to remove any movable furniture,
furnishings, trade fixtures or other personal property as required pursuant to
Section 9.6 above, then Landlord shall have the right, but not the obligation,
at its sole option to: (i) remove and store all such items at the sole cost of
Tenant and without liability on the part of Landlord or Landlord’s Agents; (ii)
immediately treat same as the property of Landlord without any payment therefor
to Tenant; and/or (iii) dispose of any or all of such property, to the extent
permitted by Legal Requirements.  Tenant’s
obligations under this Section 22.2 shall survive the Expiration Date or
earlier termination of this Lease. Upon the Expiration Date or earlier
termination of the Term, Tenant shall deliver to Landlord all keys and security
cards to the Building and the Premises, whether such keys were furnished by
Landlord or otherwise procured by Tenant, and shall inform Landlord of the
combination of each lock, safe and vault, if any, in the Premises.


 


ARTICLE XXIII

RIGHTS OF LANDLORD


 


23.1         In
addition to any other rights granted to Landlord by this Lease, and
notwithstanding anything contained in this Lease to the contrary, from and
after the date hereof Landlord reserves the following rights: (a) to change the
street address and name of the Building (provided, however, Landlord agrees not
to change the name of the Building to “H&R Block Building” or “Liberty Tax
Service Building”); (b) to change the arrangement, dimensions and location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
and other Common Areas, provided that Landlord shall not (1) relocate the
passenger elevators as currently constituted in the Building, or (2)
structurally and materially alter the dimensions of the lobby or the open
atrium of the Building unless required to do so (i) to comply with Legal
Requirements, (ii) pursuant to the decisions, or at the direction of any
governmental authority, agency or court, or (iii) to protect the structural
integrity of the Building; (c) to erect, use and maintain pipes, wires,
structural supports, ducts and conduits in and through the Premises; (d) to
subdivide the Property or to combine the Land with other lands, provided that,
in either case, Tenant shall continue to have access to (i) the internal
roadways leading from the Land to any public roadways which are contiguous to
the Building (if applicable), and (ii) the Parking Area, if same is located
outside of the Land; (e) to grant permitted uses to other tenants and occupants
of the Building; (f) to exclusively use and/or lease or license the use of the
roof areas and exterior walls of the Building, as well as all Common Areas; (g)
to temporarily close the Common Areas or other portions of the Property in
order to prevent a public dedication thereof; (h) to relocate any Parking
Areas; (i) to construct improvements (including, without limitation, kiosks and
parking structures) on the Land; (j) to prohibit smoking in the entire Building
or portions thereof (including the Premises) and on the Property, so long as
such prohibitions are in accordance with applicable Legal Requirements; and (k)
reasonably limit, control or otherwise regulate access to the Building and/or
the Land; provided that Tenant shall continue to have reasonable access 24
hours per day, seven days per week, 365 days per year.


 


ARTICLE XXIV

PARKING


 


24.1         (a)           During
the Term, Tenant shall have the right to use (on a non-exclusive first-come,
first-served basis and/or on an exclusive reserved basis as set forth in
Article I) the


 


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number of Parking Spaces set forth in Article I for the unreserved
parking of passenger automobiles in the parking areas on the Land designated
from time to time by Landlord for the use of tenants of the Building (the “Parking
Area.”).  Landlord shall have no
obligation to police or otherwise monitor the use of the Parking Area.


 


(b)           Tenant
shall park and shall cause its employees to park only in the Parking Area.  In order to restrict the use by Tenant’s
employees of areas designated or which may be designated by Landlord as
handicapped, reserved or restricted parking areas, or for any other business
purpose, Tenant agrees that it will, at any time and from time to time as
requested by Landlord, furnish Landlord with the owners’ names and the license
plate numbers of any vehicle of Tenant and Tenant’s Agents.  Landlord represents that it will not
allocated more than 100% of the available parking spaces to tenants in the
Building.


 


24.2         Landlord
reserves the right to institute a parking control system, and to reasonably establish
and modify or amend rules and regulations governing the use thereof. Landlord
shall have the right to revoke a user’s parking privileges in the event such
user fails to abide by the rules and regulations governing the use of the
Parking Area.  Tenant shall be prohibited
from using the Parking Area for purposes other than for parking registered
vehicles.  The storage or repair parking
of vehicles in the Parking Area is strictly prohibited.  The overnight parking of vehicles in the
Parking Area shall be permitted for a reasonable duration of time (in the
discretion of Landlord), provided Tenant notifies the facilities or security
personnel of the Building of the existence in advance of any such vehicle in
the Parking Area.


 


24.3         Tenant
shall not assign or otherwise transfer any Parking Spaces (other than to a permitted
assignee of this Lease, or a permitted subtenant of the Premises), and any
attempted assignment or other transfer shall be void. Tenant and its employees
shall observe reasonable safety precautions in the use of the Parking Area and
shall at all times abide by all rules and regulations governing the use of the
Parking Area promulgated by Landlord or the Parking Area operator (if any).  Landlord reserves the right to temporarily
close the Parking Area during periods of unusually inclement weather or for
repairs, or to prevent a dedication thereof, and Tenant shall not be entitled
to any abatement of Rent or other damages as a result thereof Landlord does not
assume any responsibility, and shall not be held liable, for any damage or loss
to any automobile or personal property in or about the Parking Area, or for any
injury sustained by any person in or about the Parking Area.


 


ARTICLE XXV

ENVIRONMENTAL


 


25.1         Except
for Hazardous Material (as hereinafter defined) contained in products used by
Tenant in de minimis quantities for ordinary cleaning and office purposes,
Tenant shall not permit or cause any party to bring any Hazardous Material upon
the Premises or transport, store, use, generate, manufacture, dispose, or
release any Hazardous Material on or from the Premises without Landlord’s prior
written consent.  Tenant, at its sole
cost and expense, shall operate its business in the Premises in strict compliance
with all Environmental Requirements (as hereinafter defined) and all
requirements of this Lease.  Tenant shall
complete and certify to disclosure statements as requested by Landlord from
time to time relating to Tenant’s transportation, storage, use, generation,
manufacture, or release of Hazardous Materials on the


 


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Premises, and Tenant shall promptly deliver to Landlord a copy of any
notice of violation relating to the Premises or Building of any Environmental
Requirement.


 


25.2         The
term “Environmental Requirements” means all applicable present and future
statutes, regulations, ordinances, rules, codes, judgments, permits,
authorizations, orders, policies or other similar requirements of any governmental
authority, agency or court regulating or relating to health, safety, or
environmental conditions on, under, or about the Premises or the environment,
including without limitation, the following: the Comprehensive Environmental
Response, Compensation and Liability Act; the Resource Conservation and
Recovery Act; the Clean Air Act; the Clean Water Act; the Toxic Substances
Control Act and all state and local counterparts thereto, and any common or
civil law obligations including, without limitation, nuisance or trespass, and
any other requirements of this Lease. 
The term “Hazardous Materials” means and includes any substance,
material, waste, pollutant, or contaminant that is regulated under any
Environmental Requirement or that may adversely affect human health or the
environment, including, without limitation, any solid or hazardous waste,
hazardous substance, asbestos, petroleum (including crude oil or any fraction
thereof, natural gas, synthetic gas, polychlorinated biphenyls (PCBs), and
radioactive material).


 


25.3         Tenant,
at its sole cost and expense, shall remove all Hazardous Materials stored,
disposed of or otherwise released by Tenant, its assignees, subtenants, agents,
employees, contractors or invitees onto or from the Premises, in a manner and
to a level satisfactory to Landlord in its reasonable discretion, but in no
event to a level and in a manner less than that which complies with all
Environmental Requirements and does not limit any future uses of the Premises
or require the recording of any deed restriction or notice regarding the
Premises.  Tenant shall perform such work
at any time during the period of the Lease upon written request by Landlord or,
in the absence of a specific request by Landlord, before Tenant’s right to
possession of the Premises terminates or expires.  If Tenant fails to perform such work within
the time period specified by Landlord or before Tenant’s right to possession
terminates or expires (whichever is earlier), Landlord may at its discretion,
and without waiving any other remedy available under this Lease or at law or
equity (including without limitation an action to compel Tenant to perform such
work), perform such work at Tenant’s cost. 
Tenant shall pay all costs incurred by Landlord in performing such work
within ten (10) days after Landlord’s request therefor.  Such work performed by Landlord is on behalf
of Tenant and Tenant remains the owner, generator, operator, transporter,
and/or arranger of the Hazardous Materials for purposes of Environmental Requirements.  Tenant agrees not to enter into any agreement
with any person, including without limitation any governmental authority,
regarding the removal of Hazardous Materials that have been disposed of or
otherwise released onto or from the Premises without the written approval of
the Landlord.


 


25.4         Tenant
shall indemnify, defend, and hold Landlord harmless from and against any and
all losses (including, without limitation, diminution in value of the Premises
or the Building and loss of rental income from the Building), claims, demands,
actions, suits, damages (including, without limitation, punitive damages),
expenses (including, without limitation, remediation, removal, repair,
corrective action, or cleanup expenses), and costs (including, without
limitation, actual attorneys’ fees, consultant fees or expert fees and
including, without limitation, removal or management of any asbestos brought
into the Premises or disturbed in


 


F-55





















 


breach of the requirements of this Article 25, regardless of whether
such removal or management is required by law) which are brought or recoverable
against, or suffered or incurred by Landlord as a result of any release of
Hazardous Materials or any breach of the requirements under this Section 25.4
by Tenant, its agents, employees, contractors, subtenants, assignees or
invitees, regardless of whether Tenant had knowledge of such
noncompliance.  The obligations of Tenant
under this Section 25.4 shall survive any termination of this Lease.


 


25.5         Landlord
represents to Tenant that, to the best of its knowledge, there are no Hazardous
Materials currently present at the Property in violation of any applicable
Environmental Laws.


 


ARTICLE XXVI

BROKERS


 


26.1         Landlord
and Tenant each warrant to the other that it has not employed or dealt with any
broker, agent or finder, other than the Brokers, in connection with this Lease.
 Landlord acknowledges that it shall pay
any commission or fee due to the Brokers pursuant to a separate agreement.  Tenant shall indemnify, defend and hold
harmless Landlord and Landlord’s Agents from and against any claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses
(including litigation costs and attorneys’ fees) for brokerage or other commissions
asserted by any broker, agent or finder employed by Tenant or Tenant’s Agents
or with whom Tenant or Tenant’s Agents have dealt, other than the Brokers
(whether directly or indirectly, in whole or in part), such indemnification
obligation to survive the Expiration Date or earlier termination of this Lease.  Landlord shall indemnify, defend and hold
harmless Tenant or Tenant’s Agents from and against any claims, demands,
liabilities, causes of action, suits, judgments, damages and expenses (including
litigation costs and attorneys’ fees) for brokerage or other commissions
asserted by any broker, agent or finder employed by Landlord or Landlord’s
Agents or with whom Landlord or Landlord’s Agents have dealt, other than the
Brokers (whether directly or indirectly, in whole or in part), such
indemnification obligation to survive the Expiration Date or earlier
termination of this Lease.


 


ARTICLE XXVII

NOTICES


 


27.1         Except
as otherwise expressly provided in this Lease, all notices, requests, consents,
approvals, demands or other communications required or permitted to be given
under this Lease shall be in writing and shall be delivered in person by a
reputable same day courier service which obtains a signed receipt therefor; or
sent, prepaid, by a recognized overnight delivery service which obtains a
signed receipt therefor; or sent by certified or registered mail, return
receipt requested, postage prepaid, to the following addresses: (a) if to
Landlord, at each of the Landlord Notice Addresses specified in Article I; and
(b) if to Tenant, at the Tenant Notice Address specified in Article I.  Notwithstanding the foregoing: (i) all
payments due hereunder from Tenant to Landlord need not be sent in such manner,
it being agreed that all payments may be sent by regular mail or hand delivery
to the Landlord Payment Address, except to the extent Tenant is making such
payments pursuant to an automatic monthly electronic transfer; and (ii) bills,
invoices, and similar communications (collectively, “Bills”) need not be sent
in such manner, it being agreed that Bills may be sent by regular mail, hand


 


F-56





















 


delivery or facsimile to Tenant’s Billing Address specified in Article
I.  In the event any Bills are returned
to the sender, Landlord shall have the immediate right (until a valid Tenant
Billing Address is furnished to Landlord in accordance with the provisions of
this Section 27.1), to deliver all Bills to the Premises.  All notices shall be deemed effective upon
receipt or rejection thereof.  Either
party may change its address for the giving of notices by notice given in
accordance with this Section 27.1.


 


27.2         If
Landlord or any Mortgagee notifies Tenant that a copy of any notice to Landlord
shall be sent to such Mortgagee at a specified address, then Tenant shall send
(in the manner specified in this Article XXVII and at the same time such notice
is sent to Landlord) a copy of each such notice to said Mortgagee, and no such
notice shall be considered duly sent unless such copy is so sent to said
Mortgagee.


 


ARTICLE XXVIII

[INTENTIONALLY OMITTED]


 


ARTICLE XXIX

SUCCESSORS AND ASSIGNS: LANDLORD’S LIABILITY


 


29.1         This
Lease and the terms, covenants and conditions hereof shall be binding upon and
inure to the benefit of Landlord and Tenant and their respective distributees,
legal representatives, successors and their permitted assigns (in the case of
any assignee of Tenant, subject to Article VII hereof), and no third party
(other than Mortgagee or any managing agent of the Building) shall be deemed a
third party beneficiary of this Lease.


 


29.2         The
term “Landlord” as used in this Lease, so far as the covenants and agreements on
the part of Landlord are concerned, shall be limited to mean and include only
the owner (or lessee, as applicable) or Mortgagee(s) in possession at the time
in question of the landlord’s interest in this Lease.  Landlord may sell its fee ownership or
leasehold interest in the Building, and/or transfer or assign its rights under
this Lease.  In the event of any sale of
such interest or transfer of such rights, Landlord herein named (and in case of
any subsequent transfer, the then assignor) shall be automatically freed and
relieved from and after the date of such transfer of all liability as respects
the performance of any of Landlord’s covenants and agreements thereafter
accruing, and such transferee shall thereafter be automatically bound by all of
such covenants and agreements, subject, however, to the terms of this Lease; it
being intended that Landlord’s covenants and agreements shall be binding on
Landlord, its successors and assigns only during and in respect of their
successive periods of such ownership.


 


29.3         Landlord
and its employees, officers, directors, partners, shareholders and agents shall
have no personal liability or obligation by reason of any default by Landlord
under any of Landlord’s covenants and agreements in this Lease.  In case of such default, Tenant will look only
to, and is strictly and expressly limited to, Landlord’s interest in the
Building, as well as net sale, condemnation and insurance proceeds, to recover
any loss or damage resulting therefrom, and Tenant shall have no right and
shall not assert any claim against or have recourse to Landlord’s or its
employees’, officers’, directors’, partners’, shareholders’ or agents’ other
property or assets to recover such loss or damage, such exculpation of
liability to be absolute and without any exceptions whatsoever. The liability
of Landlord to Tenant for any


 


F-57





















 


breach or default hereunder shall, except as otherwise expressly
provided elsewhere in this Lease, be limited to Tenant’s actual damages. The
foregoing limitation of liability shall be noted in any judgment secured against
Landlord and in any judgment index.


 


ARTICLE XXX

GENERAL PROVISIONS


 


30.1         Tenant
acknowledges that neither Landlord nor any broker, agent or employee of Landlord
has made any representation or promise with respect to the Premises, the
Building or the Geographic Area, except as herein expressly set forth, and no
right, privilege, easement or license is being acquired by Tenant except as
herein expressly set forth.  In
furtherance of the foregoing, Tenant represents and warrants that Tenant has
made its own investigation and examination of all relevant data and is relying
solely on its own judgment in connection therewith and in executing this Lease.
 This Lease contains and embodies the
entire agreement of the parties hereto and supersedes all prior agreements,
negotiations, letters of intent, proposals, representations, warranties,
understandings, suggestions and discussions, whether written or oral, between
the parties hereto.  Any representation,
inducement, warranty, understanding or agreement that is not expressly set
forth in this Lease shall be of no force or effect.  This Lease may be modified or amended only by
an instrument signed by both parties, except in certain instances specifically
provided in this Lease in which only the party against whom enforcement may be
sought shall be required to sign such instrument.  This Lease includes and incorporates all
Exhibits attached hereto.


 


30.2         Nothing
contained in this Lease shall be construed as creating any relationship between
Landlord and Tenant other than that of landlord and tenant.  Tenant shall not: (a) use the name of the
Building for any purpose other than as the address of the business to be
conducted by Tenant in the Premises: (b) use the name of the Building as Tenant’s
business address after the earlier of the date Tenant vacates the Premises, or
the date Tenant’s right to possession of the Premises is terminated; or (c) do
or permit to be done anything in connection with Tenant’s business or
advertising which in the reasonable judgment of Landlord may reflect
unfavorably on Landlord or the Building, or confuse or mislead the public as to
any apparent connection or relationship between Landlord or the Building, and
Tenant.


 


30.3         Tenant
hereby waives any and all rights to interpose any counterclaim in any
proceeding brought by Landlord against Tenant for the enforcement of any of the
terms, agreements, covenants, conditions or provisions of this Lease, except to
the extent such claims would be waived or otherwise barred if not so asserted.  In amplification of the foregoing and not in
limitation thereof, Tenant agrees not to interpose, by consolidation of
actions, removal to chancery or otherwise, any counterclaim or other claims for
set-off, recoupment or deduction of rent in a summary proceeding or other
action for non-payment of rent or based on termination, holdover or other
default in which Landlord seeks to repossess the Premises from Tenant.


 


30.4         Each
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.  If any provision of
this Lease or the application thereof to any person or circumstance shall to
any extent be invalid or unenforceable, then such provision shall be deemed
replaced by the valid and enforceable provision most substantively similar to such
invalid or unenforceable provision, and the remainder of this Lease and the
application of such


 


F-58





















 


provision to persons or circumstances other than those as to which it
is invalid or unenforceable shall not be affected thereby.


 


30.5         Feminine,
masculine or neuter pronouns shall be substituted for those of another form,
and the plural or singular shall be substituted for the other number, in any
place in which the context may require such substitution.  Headings are used for convenience only and
shall not be considered when construing this Lease.


 


30.6         Tenant
shall not have the right to any offset, abatement, defense, claim, counterclaim
or deduction with regard to any amount allegedly owed to Tenant pursuant to any
claim against Landlord in connection with any rent or other sum payable to
Landlord.  Tenant’s sole remedy for
recovering upon such claim shall be to institute an independent action against
Landlord, which action shall not be consolidated with any action of Landlord.


 


30.7         [Intentionally
Omitted]


 


30.8         This
Lease has been executed and delivered in the State of New Jersey and shall be
construed in accordance with the laws of the State of New Jersey.  Landlord and Tenant hereby irrevocably agree that
any legal action or proceeding arising out of or relating to this Lease shall
only be brought in the Courts of the State of New Jersey, or the Federal
District Court for the District of New Jersey.  By execution and delivery of this Lease,
Landlord and Tenant hereby irrevocably accept and submit generally and
unconditionally for itself and with respect to its properties, to the
jurisdiction of any such court in any such action or proceeding, and hereby
waive in the case of any such action or proceeding brought in the courts of the
State of New Jersey, or Federal District Court for the District of New Jersey,
any defenses based on jurisdiction, venue or forum non coveniens.  In furtherance of the foregoing, Tenant hereby
agrees that its address for notices given by Landlord and service of process
for in personam jurisdiction under this Lease shall be c/o Corporation Service
Company, 830 Bear Tavern Road, West Trenton, New Jersey 08626, provided that
Tenant may change such address from time to time upon ten (10) days prior
written notice to Landlord.


 


30.9         There
shall be no presumption that this Lease be construed more strictly against the
party who itself or through an agent prepared it, it being agreed that all
parties hereto have participated in the preparation of this Lease, and that
each party had the opportunity to consult with legal counsel before the
execution of this Lease.


 


30.10       The
submission of an unsigned copy of this document to Tenant shall not constitute
an offer or option to lease the Premises.  This Lease shall become effective and binding
only upon execution and delivery by both Landlord and Tenant.


 


30.11       Time
is of the essence with respect to each of Tenant’s and Landlord’s obligations
hereunder.


 


30.12       This
Lease may be executed in multiple counterparts, each of which shall be deemed
an original and all of which together constitute one and the same document.
Faxed signatures shall have the same binding effect as original signatures.


 


30.13       Neither
this Lease nor any memorandum thereof shall be recorded.


 


F-59





















 


30.14       Any
elimination or shutting off of light, air, or view by any structure which may
be erected on lands adjacent to the Building shall in no way affect this Lease
or impose any liability on Landlord.


 


30.15       Tenant’s
liabilities and obligations under this Lease shall survive the expiration or
earlier termination of the Term. Nothing in the foregoing sentence, however,
shall be construed as a limitation of Tenant’s obligations under Section 19.2
above.  If more than one natural person
or entity shall constitute Tenant, then the liability of each such person or
entity shall be joint and several. No waiver, release or modification of the
obligations of any such person or entity shall affect the obligations of any
other such person or entity.


 


30.16       If
either Landlord or Tenant is in any way delayed or prevented from performing
any obligation due to fire, act of God, governmental act or failure to act,
strike, labor dispute, inability to procure materials, or any cause beyond
Landlord’s or Tenant’s reasonable control (whether similar or dissimilar to the
foregoing events), then the time for performance of such obligation shall be
excused for the period of such delay or prevention and extended for a period
equal to the period of such delay, interruption or prevention.  The provisions of this Section 30.16 shall
not excuse Tenant from the prompt payment of Rent and all other sums due from
Tenant under this Lease, and Tenant’s delay or failure to perform resulting
from lack of funds shall not be deemed delays beyond Tenant’s reasonable
control.


 


30.17       Landlord’s
review, approval and consent powers (including the right to review plans and
specifications) are for its benefit only.  Such review, approval or consent (or
conditions imposed in connection therewith) shall be deemed not to constitute a
representation concerning legality, safety or any other matter.


 


30.18       The
deletion of any printed, typed or other portion of this Lease shall not evidence
the parties’ intention to contradict such deleted portion, and such deleted
portion shall be deemed not to have been inserted in this Lease.


 


30.19       (a)
Tenant and the person(s) executing and delivering this Lease on Tenant’s behalf
each represent and warrant that such person is duly authorized to so act; that
Tenant is duly organized, is qualified to do business in the State of New
Jersey, is in good standing under the laws of the state of its organization and
the laws of the State of New Jersey, and has the power and authority to enter
into this Lease; and that all action required to authorize Tenant and such
person to enter into this Lease has been duly taken.  Landlord and the person(s) executing and
delivering this Lease on Landlord’s behalf each represent and warrant that it
has the full right, power and authority to execute this Lease.


 


(b)           If
Tenant is a partnership or a professional corporation (or is comprised of two
(2) or more persons or entities, individually or as co-partners of a
partnership or shareholders of a professional corporation) or if Tenant’s
interest in this Lease shall be assigned to a partnership or a professional
corporation (or to two (2) or more persons or entities, individually or as
co-partners of a partnership or shareholders of a professional corporation)
pursuant to Article VII or Article XX hereof (any such partnership,
professional corporation and such persons and entities are referred to in this
Section 30.19(b) as “Partnership Tenant”), the following provisions shall apply
to such Partnership Tenant: (i) the liability of each of the


 


F-60





















 


parties comprising Partnership Tenant shall
be joint and several; (ii) each of the parties comprising Partnership Tenant
hereby consents in advance to, and agrees to be bound by (x) any written
instrument which may hereafter be executed by Partnership Tenant or any of the
parties comprising Partnership Tenant or any successor entity, changing,
modifying, extending or discharging this Lease, in whole or in part; or
surrendering all or any part of the Premises to Landlord, and (y) any notices,
demands, requests or other communications which may hereafter be given by
Partnership Tenant or by any of the parties comprising Partnership Tenant; (iii)
any bills, statements, notices, demands, requests or other communications given
or rendered to Partnership Tenant or to any of such parties shall be binding
upon Partnership Tenant and all such parties; (iv) if Partnership Tenant shall
admit new partners or shareholders, as the case may be, all of such new
partners or shareholders, as the case may be, shall, by their admission to Partnership
Tenant, be deemed to have assumed joint and several liability for the
performance of all of the terms, covenants and conditions of this Lease on
Tenant’s part to be observed and performed; and (v) Partnership Tenant shall
give prompt notice to Landlord of the admission of any such new partners or
shareholders, as the case may be, and upon demand of Landlord, shall cause each
such new partner or shareholder, as the case may be, to execute and deliver to Landlord
an agreement in form satisfactory to Landlord, wherein each such new partner or
shareholder, as the case may be, shall assume joint and several liability for
the observance and performance of all the terms, covenants and conditions of
this Lease on Tenant’s part to be observed and performed (but neither Landlord’s
failure to request any such agreement nor the failure of any such new partner
or shareholder, as the case may be, to execute or deliver any such agreement to
Landlord shall vitiate the provisions of clause “(iv)” of this Section 30.19(b)).
 If any partner or shareholder, as the
case may be, withdraws from Partnership Tenant, then, in addition to all other
rights and remedies Landlord may have in this Lease or otherwise, Landlord may,
at Landlord’s sole option, automatically deem such partner or shareholder, as
the case may be, as a joint tenant under this Lease.


 


30.20       Landlord
covenants that if Tenant is not in default (beyond any applicable notice, cure
or grace period) of all of its obligations hereunder then, subject to the
provisions of this Lease (including, without limitation, Article XXI), Tenant
shall during the Term peaceably and quietly occupy and enjoy the full
possession of the Premises without hindrance by Landlord or any party claiming
through or under Landlord.


 


30.21       Within
fifteen (15) days after Landlord’s request from time to time, Tenant will
furnish to Landlord the most recent financial statements of Tenant and
Guarantor (if any), both of which shall be audited, if available (including any
notes thereto) or, if no such audited statements have been prepared, such other
financial statements (and notes thereto) prepared by an independent certified
public accountant or, if unavailable, Tenant’s and any Guarantor’s internally
prepared financial statements certified as true and complete by Tenant’s and
any Guarantor’s chief financial officers, respectively.  If either Tenant or Guarantor (if any) are
publicly-traded corporations, Tenant or Guarantor (if any) may satisfy its
respective obligations hereunder by providing to Landlord Tenant’s or any
Guarantor’s most recent respective annual and quarterly reports. Landlord will
not disclose any aspect of Tenant’s or any Guarantor’s financial statements
that Tenant or Guarantor (if any) designates to Landlord as confidential, except
to Landlord’s Mortgagee or prospective purchasers or Mortgagees of the Building
or the Property, in litigation between Landlord and Tenant, or if required by
court order.  Tenant and Guarantor (if
any) shall not be required to deliver the financial statements required under
this 


 


F-61





















 


Section 30.21 more than once in any twelve (12) month period unless
requested by Landlord’s Mortgagee or a prospective buyer or Mortgagee of the
Building or the Property, or if an Event of Default occurs.


 


30.22       Neither
the payment by Tenant of a lesser amount than the monthly installment of Base
Rent, Additional Rent or any sums due hereunder, nor any endorsement or
statement on any check or letter accompanying a check for payment of rent or
other sums payable hereunder, shall be deemed an accord and satisfaction.  Landlord may accept same without prejudice to
Landlord’s right to recover the balance of such rent or other sums or to pursue
any other remedy.  Notwithstanding any
request or designation by Tenant, Landlord may apply any payment received from
Tenant to any amount owed by Tenant, and in such order as designated by
Landlord in its sole discretion.


 


30.23       No
re-entry by Landlord, and no acceptance by Landlord of keys to and/or
possession of the Premises, shall be considered an acceptance of a surrender of
the Premises, and no agreement to accept a surrender of the Premises shall be
valid and binding unless in writing and executed by Landlord.


 


30.24       Anything
contained in this Lease to the contrary notwithstanding, Tenant agrees that
Tenant’s covenants and obligations under this Lease shall be independent of
Landlord’s covenants and obligations under this Lease, and that each such
covenant and obligation is independent of any other covenant or obligation.
Landlord’s breach, default or non-performance of any of Landlord’s covenants or
obligations under this Lease shall not excuse Tenant of Tenant’s covenants and
obligations under this Lease, and shall not be the basis for any defense of any
kind or nature whatsoever to any suit by Landlord for Tenant’s breach, default
or non-performance of any of Tenant’s covenants or obligations under this Lease
(including, without limitation, Tenant’s failure to pay Base Rent, Additional
Rent or other payments due under this Lease).  It is the express agreement of Landlord and
Tenant that all payments of Base Rent, Additional Rent or other payments due
under this Lease are absolutely and unconditionally due at the time set forth
herein, without any right of offset, abatement, defense, claim, counterclaim or
deduction of any kind or nature whatsoever.


 


30.25       Tenant
hereby waives any claim against Landlord which it may have based upon any
assertion that Landlord has unreasonably withheld or unreasonably delayed any
consent or approval hereunder (to the extent Landlord’s consent is expressly
required hereunder not to be unreasonably withheld or unreasonably delayed, as
the case may be).  Tenant agrees that,
anything contained in this Lease to the contrary notwithstanding, in the event
Landlord refuses or fails to grant, or delays in the granting of, Landlord’s
consent, Tenant’s sole remedy shall be an expedited action or proceeding to
enforce any such provision or for specific performance, injunction or
declaratory judgment in accordance with the provisions of Article 35.  In the event Tenant is successful in any such
action or proceeding, the requested consent shall be deemed to have been
granted; however, Landlord shall have no liability to Tenant for Landlord’s
refusal or failure to give, or Landlord’s delay in giving, such consent. The
sole remedy for Landlord’s unreasonably withholding or unreasonably delaying of
consent shall be as provided in this paragraph. 
In the event it becomes necessary for either Landlord or Tenant to bring
an action at law or other proceeding or to employ legal counsel (whether or not
suit is instituted) to enforce any of the terms, covenants, conditions or
remedies of this Lease, the prevailing party in any


 


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such action or proceeding shall be entitled to recover its costs and
expenses incurred in such action from the other party, including the cost of
reasonable attorneys’ fees.


 


30.26       Whenever
Tenant requests Landlord to take any action not required of it hereunder or
give any consent required or permitted under this Lease, Tenant will reimburse
Landlord, as Additional Rent, for Landlord’s reasonable, out-of-pocket costs
payable to third parties and incurred by Landlord in reviewing the proposed
action or consent, including reasonable attorneys’, engineers’ or architects’
fees, within thirty (30) days after Landlord’s delivery to Tenant of a
statement of such costs.  Tenant shall be
obligated to make such reimbursement without regard to whether Landlord
consents to any such proposed action.  The
provisions of this Section 30.26 shall be in addition to, and not in lieu of,
the provisions of Section 7.1 and any other express administrative cost
recovery provisions in this Lease.


 


30.27       Should
either party hereto institute any action or proceeding in court to enforce any
provision hereof, or for damages or for declaratory or other relief hereunder,
the prevailing party shall be entitled to receive from the losing party, in
addition to court costs, such amount as the court may adjudge to be reasonable
as attorneys’ fees for services rendered to said prevailing party, and said
amount may be made a part of the judgment against the losing party.


 


30.28       Tenant
acknowledges that the terms and conditions of this Lease are to remain
confidential for Landlord’s benefit, and may not be disclosed by Tenant to
anyone (other than Tenant’s attorneys, accountants and agents), by any manner
or means, directly or indirectly, without Landlord’s prior written consent,
(which consent may be withheld in Landlord’s sole discretion) except in any
litigation or proceeding between the parties hereto, and except further that
Tenant and such attorneys, accountants and agents may disclose such information
to any governmental agency pursuant to any subpoena or judicial process or as
otherwise required by applicable law, regulation or reporting requirement.  The consent by Landlord to any disclosures
shall not be deemed to be a waiver on the part of Landlord of any prohibition
against any future disclosure.


 


30.29       There
shall be no merger of the leasehold estate hereby created with the fee estate
in the Premises or any part thereof if the same person acquires or holds,
directly or indirectly, this Lease or any interest in this Lease and the fee
estate in the leased Premises or any interest in such fee estate.


 


30.30       Tenant
represents and warrants to Landlord that (a) Tenant and each person or entity
directly or indirectly owning an interest in Tenant is (i) not currently
identified on the Specially Designated Nationals and Blocked Persons List
maintained by the Office of Foreign Assets Control of the Department of the
Treasury (“OFAC”) and/or on any other similar list maintained by OFAC pursuant
to any authorizing statute, executive order or regulation (collectively, the “List”),
and (ii) not a person or entity with whom a citizen of the United States is
prohibited to engage in transactions by any trade embargo, economic sanction,
or other prohibition of United States law, regulation, or Executive Order of
the President of the United States, (b) none of the funds or other assets of
Tenant constitute property of, or are beneficially owned, directly or
indirectly, by, any Embargoed Person, (c) no Embargoed Person has any interest
of any nature whatsoever in Tenant (whether directly or indirectly), (d) none
of the funds of Tenant have been derived from any unlawful activity with the
result that the


 


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investment in Tenant is prohibited by law or that the Lease is in
violation of law, and (e) Tenant has implemented procedures, and will
consistently apply those procedures, to ensure the foregoing representations
and warranties remain true and correct at all times.  The term “Embargoed Person” means any person,
entity or government subject to trade restrictions under U.S. law, including
but not limited to, the International Emergency Economic Powers Act, 50 U.S.C.
§1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and
any Executive Orders or regulations promulgated thereunder with the result that
the investment in Tenant is prohibited by law or Tenant is in violation of law.


 


Tenant
covenants and agrees (a) to comply with all requirements of law relating to
money laundering, anti-terrorism, trade embargos and economic sanctions, now or
hereafter in effect, (b) to immediately notify Landlord in writing if any of
the representations, warranties or covenants set forth in this paragraph or the
preceding paragraph are no longer true or have been breached or if Tenant has a
reasonable basis to believe that they may no longer be true or have been
breached, (c) not to use funds from any “Prohibited Person” (as such term is
defined in the September 24, 2001 Executive Order Blocking Property and
Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism) to make any payment due to Landlord under the Lease and (d)
at the request of Landlord, to provide such information as may be requested by
Landlord to determine Tenant’s compliance with the terms hereof.


 


30.31       LANDLORD,
TENANT, AND ALL GENERAL PARTNERS OF TENANT EACH WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM BROUGHT IN CONNECTION WITH ANY MATTER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT HEREUNDER, TENANT’S USE OR OCCUPANCY OF THE PREMISES,
AND/OR ANY CLAIM OF INJURY OR DAMAGE. TENANT CONSENTS TO SERVICE OF PROCESS AND
ANY PLEADING RELATING TO ANY SUCH ACTION AT THE PREMISES, NOTWITHSTANDING THE
PROVISIONS OF SECTION 27.1 ABOVE; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL
BE CONSTRUED AS REQUIRING SUCH SERVICE AT THE PREMISES.


 


ARTICLE XXXI

RIGHT OF FIRST OFFER


 


31.1         Subject
to any presently existing rights of tenants in the Building, and provided
Tenant is not in default beyond any applicable grace period, Landlord agrees to
provide Tenant with a right of first offer, at the Prevailing Rental Rate as
determined in accordance with Exhibit F which is currently in effect, on (i)
any portion of the second (2nd) floor of the Building, if said space
is placed on the market by Landlord, or (ii) any quadrant located on the first
(1st) floor of the Building (the “Expansion Space”, which shall mean
the entire Expansion Space or the portion of the Expansion Space then available
as the context and circumstances may require), but in either case not more than
one time with respect to any particular portion of the Expansion Space that
becomes available.  At any time during
the term hereof, Tenant may by notice to Landlord inquire as to whether the
Expansion Space is available or Landlord shall notify Tenant in writing of the
availability of the Expansion Space.  In
the event Landlord notifies Tenant of the availability of any Expansion Space,
such notice shall specify the minimum size and location of the Expansion Space
which Landlord is willing to make available


 


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and the economic terms and conditions upon which Landlord is willing to
offer such Expansion Space.  If the
Expansion Space is available, Tenant shall have the right, by furnishing
Landlord with written notice of its election to lease the Expansion Space at
the Prevailing Rental Rate, which notice shall be received by Landlord no later
than ten (10) business days after Tenant’s receipt of written notification by
Landlord of the availability of the Expansion Space.  The Prevailing Rental Rate shall be
determined in the manner set forth in Exhibit F attached hereto.  The failure by Tenant to furnish such notice
to Landlord in a timely manner as provided above shall constitute a waiver by
Tenant of all of Tenant’s rights under this Article, and shall release Landlord
from any further obligation to offer any Expansion Space to Tenant.  In the event Tenant delivers notice to
Landlord of its election to lease the Expansion Space, Landlord and Tenant
shall, within ten (10) business days after receipt of Tenant’s notice, enter
into an amendment of this Lease, providing for those terms and conditions as
set forth in Landlord’s offer.  The right
to lease the Expansion Space shall be subject to any rights which Landlord has
granted prior to the date of this Lease to existing tenants with respect to the
leasing of such Expansion Space.  Nothing
contained herein shall be deemed to grant Tenant a right of first refusal for
the leasing of the Expansion Space or any other portion of the Building, it
being the intention of the Landlord and Tenant that the right of notification
granted under this Article is for the purpose of affording the Tenant the
opportunity to offer to lease additional space at the time that such space
becomes available and Landlord is prepared to lease it.


 


ARTICLE XXXII

TELECOMMUNICATIONS EQUIPMENT


 


32.1         If
legally permitted, Tenant shall have the right to erect or place a
telecommunications dish or antenna (the “Telecommunications Equipment”) on the
roof of the Building or on the ground in accordance with the following
provisions, which Telecommunications Equipment shall be designed in accordance
with the specifications to be provided by Tenant and approved by Landlord,
Landlord’s approval not to be unreasonably withheld, conditioned or
delayed.  It is expressly understood and
agreed, in any event, that the design specifications shall include such
modifications to the roof and shall be incorporated in the cost of installation
as herein provided.  In the event such
installation shall, in the reasonable opinion of Landlord, impair the
structural integrity of the roof, roof membrane and/or Building, Landlord
reserves the right to disapprove Tenant’s plans and specifications until the
same shall be redesigned to eliminate Landlord’s objection.  With respect to any such redesign of the
roof, any cost in connection with maintenance or repair which may thereafter be
occasioned as a direct result of the installation or operation on the Telecommunications
Equipment shall be paid for at the sole cost and expense of the Tenant and
shall not be included as part of the Operating Expenses.  Tenant shall furnish detailed plans and
specifications for the Telecommunications Equipment to Landlord for its
approval, which approval shall not be unreasonably withheld, conditioned or
delayed, provided Landlord may condition its consent by requiring that the
Telecommunications Equipment be adequately screened or enclosed (at Tenant’s
sole cost and expense) on the roof or on the ground at such location as is
designated by Landlord in the least conspicuous location of all acceptable
locations in which the Telecommunications Equipment might be located.


 


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32.2         Upon
approval of Tenant’s plans and specifications, the Telecommunications Equipment
shall be installed by Tenant at its sole cost and expense and utilizing
Landlord’s roofing contractor, subject to reasonable supervision by Landlord
with respect thereto.  Such cost and
expense shall include obtaining any special permits that may be required by
governmental authority in connection with such installation, including any
reasonable cost attributable to the processing thereof.  Subsequent to the installation of the
Telecommunications Equipment, Tenant shall comply with all applicable laws and
keep the Premises, Building and Land free and clear from liens arising from or
related to Tenant’s installation.  Any
cables, conduits or other physical connections between the Telecommunications
Equipment and the Premises shall be concealed within permanent walls, floors,
columns and ceilings of the Building and in the shafts of the Building provided
for such installations, not damaging the appearance of the Building or reducing
the usable or rentable space of the Building. 
Any installation or maintenance work performed by Tenant, or at Tenant’s
direction, shall be performed without unreasonably interfering with Landlord’s
or any other tenant’s use of the Building, and upon completion of such
installation and maintenance (initially and from time to time), Tenant shall
restore such portions of the Building to a condition reasonably comparable to
that existing prior to such installation or maintenance.  Tenant shall be responsible for procuring
whatever licenses, approvals or permits may be required for the installation
and use of the Telecommunications Equipment and the related support systems or
operation of any equipment served thereby, and Landlord makes no warranties whatsoever
as to the permissibility of such systems under applicable laws.  Tenant’s Telecommunications Equipment shall
not constitute a nuisance, or interfere with the operations of Landlord or
other tenants of the Building.  Upon
termination or expiration of this Lease, Tenant shall remove any
Telecommunications Equipment installed by it, at its expense, and shall repair
and restore the Building to a condition comparable to that existing prior to
such installation.  Landlord reserves the
right to relocate said Telecommunications Equipment at Landlord’s sole expense,
provided that such relocation shall have no adverse impact on the operations of
the Telecommunications Equipment.


 


ARTICLE XXXIII

TENANT’S RIGHT TO CURE


 


33.1         Subject
to excusable delay due to Force Majeure, if Landlord fails to observe any one
or more of its obligations under this Lease or by law, then Tenant shall have
the right, but not the obligation to perform such obligation on the part of
Landlord or make such payment on behalf of Landlord.  Tenant’s foregoing right shall not be
exercisable until thirty (30) days after Tenant has sent notice to Landlord of
Tenant’s intent to do so.  If Tenant
performs an obligation of Landlord, Landlord shall pay Tenant for Tenant’s
reasonable and necessary out-of-pocket cost to do so within thirty (30) days
after receipt of billing therefor from Tenant, with interest at the Default
Interest Rate accruing after the expiration of such thirty (30) day period.


 


ARTICLE XXXIV

LANDLORD REPRESENTATIONS


 


34.1         Landlord
represents and warrants to Tenant as follows: (i) to Landlord’s knowledge, the
roof of the Premises does not currently leak, (ii) there is currently no
Mortgage encumbering the Premises, and (iii) the Building is fully assessed as
a complete structure.


 


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ARTICLE XXXV

EXPEDITED ARBITRATION


 


35.1         In
connection with the terms and conditions of Section 30.25, which expressly
provides that a matter is to be determined by arbitration and does not
otherwise provide a mechanism for arbitration, such arbitration shall be
conducted in the City of Newark, New Jersey, in accordance with the Commercial
Arbitration Rules (Expedited Procedures) of the AAA (the “AAA Expedited Rules”),
except that the provisions of this Article 35 shall supersede any conflicting
or inconsistent provisions of said rules. 
The party requesting arbitration shall do so by giving notice to that
effect to the other party, specifying in said notice the nature of the dispute,
and that said dispute shall be determined in Newark, by a single arbitrator
selected in accordance with the AAA Expedited Rules.  The decisions of the arbitrator shall in all
cases be binding upon the parties, and judgment upon such decision may be
entered into any court having jurisdiction. 
The arbitrator shall be experienced in the issue with which the
arbitration is concerned and shall have been actively engaged in such field for
a period of at least ten (10) years before the date of his or her appointment
hereunder.  The arbitrator shall apply
the laws of the State of New Jersey without giving effect to any principles of
conflicts of laws.  The arbitrator shall
schedule a hearing where the parties and their advocates shall have the right
to present evidence, call witnesses and experts and cross-examine the other
party’s witnesses and experts.  The
losing party shall pay the fees and expenses of the arbitrator acting under
this Article 35, as well as reasonable additional costs and expenses,
including, but not limited to, reasonable attorneys’ fees.


 


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IN WITNESS
WHEREOF, Landlord and Tenant have executed this Lease under seal as of the day
and year first above written.


 


 


	
  WITNESS/ATTEST:

  	
  LANDLORD:

  
	
   

  	
   

  
	
   

  	
  DUN &
  BRADSTREET, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Luis
  Cadalzo

  	
   

  	
  By:

  	
  /s/ Anthony
  S. Mattesich

  	
   

  
	
   

  	
   

  	
  Name: Anthony S. Mattesich

  
	
   

  	
   

  	
  Title:
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  WITNESS/ATTEST:

  	
  TENANT:

  
	
   

  	
   

  
	
   

  	
  JACKSON
  HEWITT TAX SERVICE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/ Sharalynn
  M. Hopkins

  	
   

  	
  By:

  	
  /s/ Peter
  Karpiak

  	
   

  
	
   

  	
   

  	
  Name: Peter
  Karpiak

  
	
   

  	
   

  	
  Title: SVP
  HR & Corporate Services

  



 


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