Exhibit 10.8


 


PALMER SQUARE


 


Princeton, New Jersey


 

















 


TABLE OF CONTENTS


 


	
  SECTION

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1

  	
  -

  	
  Reference Data

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2

  	
  -

  	
  Attachments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3

  	
  -

  	
  Demise

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4

  	
  -

  	
  Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5

  	
  -

  	
  Holding Over

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6

  	
  -

  	
  Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7

  	
  -

  	
  Annual Fixed Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8

  	
  -

  	
  Indemnity and Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9

  	
  -

  	
  Non-Liability of Landlord and Exculpation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10

  	
  -

  	
  Improvements to Leased Premises

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11

  	
  -

  	
  Alterations by Tenant

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12

  	
  -

  	
  Permitted Use

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13

  	
  -

  	
  Cost of Operation and Maintenance

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14

  	
  -

  	
  Building Operation and Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15

  	
  -

  	
  Interruption in Operations or Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16

  	
  -

  	
  Repairs

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17

  	
  -

  	
  Relocation of Tenant

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  18

  	
  -

  	
  Quiet Enjoyment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  19

  	
  -

  	
  Landlord’s Right of Entry

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  20

  	
  -

  	
  Surrender of Leased Premises

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21

  	
  -

  	
  Miscellaneous Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  22

  	
  -

  	
  Rules and Regulations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  23

  	
  -

  	
  Performance of Tenant’s Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  24

  	
  -

  	
  Eminent Domain

  	
   

  



 


i

















 


	
  25

  	
  -

  	
  Casualty Damage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  26

  	
  -

  	
  Brokerage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  27

  	
  -

  	
  Advance Rent and Security Deposit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  28

  	
  -

  	
  Mortgagee and Other Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  29

  	
  -

  	
  Subordination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  30

  	
  -

  	
  Assignment and Subletting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  31

  	
  -

  	
  Default

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  32

  	
  -

  	
  Landlord’s Option to Terminate Lease

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  33

  	
  -

  	
  Underlying Leases and Estates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  34

  	
  -

  	
  Successors and Assigns

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  35

  	
  -

  	
  Waivers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  36

  	
  -

  	
  Waiver of Jury Trial and Counterclaim

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  37

  	
  -

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  38

  	
  -

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  39

  	
  -

  	
  Amendment and Modifications

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  40

  	
  -

  	
  Bankruptcy

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  41

  	
  -

  	
  Industrial Site Recovery Act

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  42

  	
  -

  	
  Headings and Terms

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  43

  	
  -

  	
  Performance of Landlord’s Obligations to
  Mortgagee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  44

  	
  -

  	
  Applicable Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  45

  	
  -

  	
  No Representation or Warranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  46

  	
  -

  	
  Construction of Lease

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  47

  	
  -

  	
  Delivery of Possession

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  48

  	
  -

  	
  Parking

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  49

  	
  -

  	
  Landlord’s Contribution

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  50

  	
  -

  	
  Right of First Offer

  	
   

  



 


ii

















 


	
  51

  	
  -

  	
  Early Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  52

  	
  -

  	
  Submission of Lease to Tenant

  	
   

  



 


SCHEDULES


 


	
  Schedule A

  	
  -

  	
  Leased
  Premises

  
	
  Schedule A-1

  	
  -

  	
  Annual Fixed Rent

  
	
  Schedule A-2

  	
  -

  	
  Palmer Square Site Plan

  
	
  Schedule B

  	
  -

  	
  Description of Landlord’s Work

  
	
  Schedule B-1

  	
  -

  	
  Description of Tenant’s Work

  
	
  Schedule C

  	
  -

  	
  Form of Estoppel Certificate

  
	
  Schedule E

  	
  -

  	
  Form of Guaranty - Intentionally Omitted

  
	
  Schedule F

  	
  -

  	
  Certification of Tenant

  
	
  Schedule G

  	
  -

  	
  Cleaning
  Services

  
	
  Schedule H

  	
  -

  	
  Rules and Regulations

  



 


iii

















 


OFFICE LEASE AGREEMENT


 


	
  Princeton, New Jersey

  	
  Lease Dated: September 6, 2002

  



 


1.                                       Reference Data. Any reference in this Lease to the
following subjects shall incorporate therein the data stated for the subject(s)
in this Section:


 


	
  LANDLORD:

  	
  PSN Partners, L.P.

  
	
   

  	
   

  
	
  LANDLORD’S ADDRESS:

  	
  17 Hulfish Street, Suite 201

  Princeton, New Jersey 08542

  
	
   

  	
   

  
	
  TENANT:

  	
  HEARTLAND PAYMENT SYSTEMS, INC.,

  a Delaware Corporation

  
	
   

  	
   

  
	
  TENANT’S ADDRESS:

  	
  130 Nassau Street

  Princeton, New Jersey 08540

  
	
   

  	
   

  
	
  LEASE TERM:

  	
  Five (5) Years

  
	
   

  	
   

  
	
  COMMENCEMENT DATE:

  	
  October 1, 2002

  
	
   

  	
   

  
	
  ANNUAL FIXED RENT:

  	
  See Schedule A-1

  
	
   

  	
   

  
	
  SECURITY DEPOSIT:

  	
  $30,833.34 (2 months Annual Fixed Rent)

  
	
   

  	
   

  
	
  PERMITTED USE:

  	
  Office

  



 


2.                                       Attachments. The following documents are attached
hereto, and such documents, as well as all drawings and documents prepared
pursuant thereto, shall be deemed to be a part of this Lease:


 




	
  Schedule A

  	
  -

  	
  Leased Premises

  
	
   

  	
   

  	
   

  
	
  Schedule A-1

  	
  -

  	
  Annual Fixed Rent

  
	
   

  	
   

  	
   

  
	
  Schedule A-2

  	
  -

  	
  Palmer Square Site Plan

  
	
   

  	
   

  	
   

  
	
  Schedule B

  	
  -

  	
  Description of Landlord’s Work

  
	
   

  	
   

  	
   

  
	
  Schedule B-1

  	
  -

  	
  Description of Tenant’s Work

  
	
   

  	
   

  	
   

  
	
  Schedule C

  	
  -

  	
  Form of Estoppel Certificate

  
	
   

  	
   

  	
   

  
	
  Schedule E

  	
  -

  	
  Form of Guaranty - Intentionally Omitted

  
	
   

  	
   

  	
   

  
	
  Schedule F

  	
  -

  	
  Certification of Tenant

  
	
   

  	
   

  	
   

  
	
  Schedule G

  	
  -

  	
  Cleaning Services

  
	
   

  	
   

  	
   

  
	
  Schedule H

  	
  -

  	
  Rules and Regulations

  






 

















 


3.                                       Demise. Landlord hereby demises and lets to Tenant and Tenant
takes and hires from Landlord that certain space (“Leased Premises”) delineated
in Schedule ”A” attached, and made part hereof, in the office building
(“Building”) known as 47 Hulfish Street, Suite 400, consisting of 5000 square
feet, in the Borough of Princeton, County of Mercer and State of New Jersey,
TOGETHER WITH, appurtenant to the Leased Premises, the right to use in common
with Landlord and other tenants, occupants and visitors to the Building, the
common entrances, lobbies, ramps, drives, stairs and similar access and
serviceways and common areas in and adjacent to the Building, and if the Leased
Premises include less than an entire floor of the Building, the common lobbies,
hallways and restrooms and other common facilities of such floor. Landlord
hereby leases to Tenant, and Tenant hereby takes from Landlord, the Leased
Premises for the Term and at the Rent hereinafter described. Tenant takes the
Leased Premises “AS IS” except as otherwise may be specifically set forth
herein.


 


4.                                       Term. The Term shall commence on the Commencement Date and
shall extend and continue until the expiration of the Lease Term, unless such
Term shall be sooner extended or this Lease otherwise terminated as hereinafter
provided.


 


5.                                       Holding Over. If Tenant retains possession of the
Leased Premises, or any part thereof, after the termination of this Lease by
expiration of the Lease Term, or otherwise, Tenant shall pay Landlord, (i) as
agreed liquidated damages for such unlawful retention alone, an amount,
calculated on a per diem basis for each day of such unlawful retention, equal
to twice the Annual Fixed Rent for the time Tenant thus remains in possession,
and (ii) all other damages, costs and expenses sustained by Landlord by reason
of Tenant’s unlawful retention, including attorneys’ fees. Without limiting any
rights and remedies of Landlord, resulting by reason of the wrongful holding
over by Tenant, or creating any right in Tenant to continue in possession of
the Leased Premises, all Tenant’s obligations with respect to the use,
occupancy and maintenance of the Leased Premises shall continue during such
period of unlawful retention.


 


6.                                       Rent.


 


A.                                    Rent is payable by
Tenant beginning on the Commencement Date in monthly installments of one-twelfth
(1/12th) of the Annual Fixed Rent, without prior notice or demand, in advance,
on the first day of each month at Landlord’s principal office in the Borough of
Princeton, Mercer County, New Jersey, or at such other place as Landlord may
direct, except that the Rent for the first full month of the Lease Term shall
be paid on the date of execution of this Lease.


 


B.                                      In the event the
Lease Term commences on a day other than the first day of a calendar month,
Tenant shall pay to the Landlord, on or before the Commencement Date of the
Lease Term, a pro rata portion of the monthly installment of rent, such pro
rata portion to be based on the number of days remaining in such partial month
after the Commencement Date of the Lease Term.


 


C.                                      Tenant hereby covenants
and agrees to pay the Annual Fixed Rent when due, and also all sums of money
required to be paid by Tenant hereunder, all of which additional sums shall
constitute “Additional Rent” hereunder, whether or not so designated.


 


D.                                     If Tenant shall
fail to pay when due any Annual Fixed Rent or any Additional Rent (referred to
collectively as Rent), Tenant shall pay interest thereon at the annual rate of
interest equal to one and one-half (11/2%) per cent above the


 


2

















 


prime rate of interest charged by The Bank of New York then prevailing
or if a permanent mortgage loan affects the Building, then at the rate payable
under said mortgage (said rates or the then prevailing maximum legal rate
chargeable to Tenant, whichever is less, is referred to herein as the “Default
Rate”) from the date when such installment or payment shall have become due to
the date of the payment thereof, and such interest shall be deemed Additional
Rent.


 


E.                                       In addition,
during the Term, and any renewals, of the within Lease, that portion of any
amount of Rent or other amount due under this Lease which is not paid on the
tenth (10th) day after its due date shall incur a late charge of
five (5%) percent for the first occurrence of such non-timely payment; seven
and one-half (7.5%) percent for the second occurrence; and ten (10%) percent
for the third occurrence.


 


F.                                       In the event
Tenant issues a cheque for any Rent which is returned to Landlord as unpaid for
any reason, Landlord shall be entitled to add the sum of Twenty-Five ($25.00)
Dollars to the next Rental bill representing a service charge for such
occurrence.


 


(i)                                     All of such
amounts shall be collectible by Landlord as Additional Rent with any interest
being based on a 360-day year. Any Additional Rent which shall become due shall
be payable, unless otherwise provided herein, with the next installment of
Annual Fixed Rent. Rent and statements required of Tenant shall be paid and
delivered to Landlord at the management office of Landlord in the Retail Center
or at such other place as Landlord may, from time to time, designate in a
notice to Tenant. Any payment by Tenant or acceptance by Landlord of a lesser
amount than shall be due from Tenant to Landlord shall be treated as payment on
account. The acceptance by Landlord of a cheque for a lesser amount with an
endorsement or statement thereon, or upon any letter accompanying such cheque,
that such lesser amount is payment in full, shall be given no effect, and
Landlord may accept such cheque without prejudice to any other rights or
remedies which Landlord may have against Tenant.


 


7.                                       Annual Fixed Rent. See Schedule A-1 annexed
hereto and made a part hereof.


 


8.                                       Indemnity and Insurance.


 


A.                                    Tenant shall not do
anything, nor suffer nor permit anything to be done in or about the Leased
Premises or Building which shall (i) subject Landlord to any liability or
responsibility for injury to any person or property by reason of any activity
being conducted in the Leased Premises; (ii) cause any increase in the fire
insurance rates applicable to the Building or equipment or other property
located therein; or (iii) be prohibited by governmental regulation or
applicable law or any license or other permit required or obtained pursuant to
Section 21 A. Tenant, at Tenant’s expense, shall comply with all rules,
regulations or requirements of the New Jersey Board of Fire Underwriters and
the New Jersey Fire Insurance Rating Organization or any similar body.


 


3

















 


B.                                      If by reason of
any act, notwithstanding that such act is permitted by terms of this Lease, or
omission on the part of Tenant, the rate of fire insurance with extended
coverage on the Building or equipment or other property of Landlord, or any
other tenant or occupant of the Building, shall be higher than it otherwise
would be, Tenant shall reimburse Landlord and all such other tenants or
occupants, on demand, for that part of the premiums for fire insurance and
extended coverage paid by Landlord and such other tenants or occupants because
of such act or omission on the part of the Tenant.


 


C.                                      Tenant shall
obtain and keep in full force and effect during the Term, at its own cost and
expense and in the following amounts or such greater amounts as Landlord or any
mortgagee of Landlord may reasonably request, (i) Public Liability Insurance,
such insurance to afford protection in an amount not less than $3,000,000, for
personal injury or death, and $300,000 for damage to property, protecting
Landlord and Tenant as insureds against any and all claims for personal injury,
death or property damage occurring in, upon, adjacent to or connected with the
Leased Premises or any part thereof; (ii) insurance against loss or damage by
fire, and such other risks and hazards as are insurable under present and
future standard forms of fire and extended coverage insurance policies, to
Tenant’s property for the full insurable value thereof, protecting Landlord,
any mortgagee of Landlord, and Tenant as insureds as their respective interests
may appear; and (iii) contractual liability insurance in the amounts specified
above insuring Tenant’s liability pursuant to the provisions of this Lease.


 


D.                                     Tenant shall
obtain such other insurance in such amounts as may, from time to time, be
reasonably required by Landlord against other insurable hazards which at the
time are commonly insured against due regard being given to the type of
building, its location, construction, use and occupancy.


 


E.                                       Said insurance
is to be written in form and substance satisfactory to Landlord by a good and
solvent insurance company of recognized standing, admitted to do business in
the State of New Jersey, which shall be reasonably satisfactory to Landlord.
Tenant shall procure, maintain and place such insurance and pay all premiums
and charges therefor and upon failure to do so Landlord may, but shall not be
obligated to, procure, maintain and place such insurance or make such payments,
and in such event, Tenant agrees to pay the amount thereof, plus interest at
the Default Rate to the Landlord on demand and said sums shall be in each
instance collectible as Additional Rent on the first day of the month following
the date of payment by Landlord. Tenant shall cause to be included in all such
insurance policies a provision to the effect that the same shall be
non-cancellable nor materially changed except upon 20 days prior written notice
to Landlord. Before the Commencement Date, the original insurance policies or
appropriate certificates shall be deposited with Landlord together with
evidence of due payment of premiums thereon. Any renewals, replacements or
endorsements thereto shall also be deposited with Landlord to make certain that
said insurance shall be in full force and effect during the Term.


 


F.                                       Tenant agrees to
indemnify and save Landlord and Landlord’s agents harmless from all losses,
costs, liabilities, claims, damages and expenses, including reasonable
attorneys’ and other professional fees, penalties and fines, incurred in


 


4

















 


connection with or arising from (i) any default by Tenant in the
observance or performance of any of the terms, covenants or conditions of this
Lease on Tenant’s part to be observed or performed, or (ii) the use, occupancy,
control or management, or manner of use, occupancy, control or management of
the Leased Premises or the Building by Tenant or any person claiming through or
under Tenant, or contractors, agents, servants, employees, visitors, invitees,
licensees and the like, of Tenant or any such person, in or about the Leased
Premises or the Building either prior to, during, or after the expiration of,
the Term including any acts, omissions or negligence in the making or
performing of any improvements.


 


G.                                      Tenant shall pay
to Landlord, as Additional Rent, within ten (10) days next following receipt by
Tenant of bills or statements therefor, sums equal to all losses, costs,
liabilities, claims, damages and expenses referred to in this Section and
Tenant’s obligations under this Section shall survive the termination of
the Term.


 


H.                                     Landlord shall not
be responsible or liable to Tenant, or to those claiming by, through or under
Tenant, for any loss or damage which may be occasioned by or through the acts
or omissions of persons occupying space adjoining the Leased Premises or any
other part of the Building, or otherwise, or for any loss or damage incurred by
Tenant, or those claiming by, through or under Tenant, or its or their
property, from the breaking, bursting, stoppage or leaking of electrical cable
or wires, water, gas, sewer or steam pipes. To the maximum extent permitted by
law, Tenant agrees to use and occupy the Leased Premises, and to use such other
portions of the Common Areas as Tenant is herein given the right to use, at
Tenant’s own risk as specified in this Section.


 


I.                                          Neither party
shall be liable to the other party or to any insurance company (by way of
subrogation or otherwise) insuring the other party for loss or damage to any
building, structure or other tangible property, even though such loss or damage
might have been occasioned by the negligence of such party, its agents or
employees; provided, however, that if, by reason of the foregoing waiver,
either party shall be unable to obtain any such insurance, such waiver shall be
deemed not to have been made by such party and, provided, further, that if, by
reason of the foregoing waiver, either party shall be unable to obtain any such
insurance without the payment of an additional premium therefor, then, unless the
party claiming the benefit of such waiver shall agree to pay the party seeking
to obtain insurance for the cost of such additional premium, within thirty (30)
days after notice by such party setting forth such requirement and the amount
of the additional premium, such waiver shall be of no force and effect between
the parties.


 


9.                                       Non-Liability of Landlord and
Exculpation.


 


A.                                    It is expressly
understood and agreed by and between the parties to this agreement that Tenant
shall assume all risk of damage and casualty to its property, equipment and
fixtures occurring in or about the Leased Premises, whatever the cause of such
damage or casualty. It is further understood and agreed that, in any event,
Landlord, in its capacity as Landlord, and, if applicable, as builder,
architect, designer or general contractor of the Leased Premises and the
Building in which the Leased Premises is located, and


 


5

















 


Landlord’s agents, servants, employees, contractors, invitees and the
like shall not be liable to Tenant, Tenant’s agents, servants, employees,
contractors, invitees and the like, for any damage or injury to person or
property or for any inconvenience or annoyance to Tenant or any other occupant
of the Leased Premises or injury to or interruption of Tenant’s or such other
occupant’s business, arising out of or attributable to (i) the design and
construction of the Leased Premises and the Building of which the Leased
Premises is a part; (ii) any maintenance, repairs, replacements, additions,
alterations, substitutions and installations made to the Leased Premises and
the Building of which the Leased Premises is a part; (iii)the failure of
Landlord or others to perform any such maintenance or to make any such repairs,
replacements, additions, alterations, substitutions and installations to the
Leased Premises and the Building of which the Leased Premises is a part or to
provide any utilities or services; (iv) the acts or omissions of any tenant or
other occupants of any space adjacent to or adjoining the Leased Premises; (v)
steam, electricity, gas, water, rain, ice or snow, or any leak or flow from or
into the Leased Premises and the Building of which the Leased Premises is a
part, and (vi) any other cause or happening whatsoever with respect to any of
the events or occurrences referred to in subparagraphs (i) through (v), or
otherwise. Notwithstanding anything to the contrary in this Lease, Tenant shall
not be obligated to indemnify, defend or hold harmless Landlord, or Landlord’s
agents, contractors, servants, or employees, for any claims, demands, losses,
liabilities, causes of action, suits, judgments, damages, costs or expenses
(including attorneys’ fees) arising from any occurrence caused by the sole
negligence, or gross negligence of Landlord or Landlord’s agents, contractors,
servants, or employees. Each party shall be liable for its joint, comparative,
or concurrent negligence. This indemnity provision shall survive termination or
expiration of this Lease. The furnishing of insurance required hereunder shall
not be deemed to limit Landlord’s obligations under this paragraph.
Notwithstanding anything to the contrary in this Lease, Landlord shall
indemnify, defend and hold harmless Tenant from and against any claims, demands,
losses, liabilities, causes of action, suits, judgments, damages, costs or
expenses (including attorneys fees) incurred in connection with all claims,
including any action or proceeding brought thereon, arising from or as a result
of any accident, injury, loss, or damage whatsoever caused to any person or to
the property of any person, as shall occur in or about the Premises and/or
Building prior to the Lease Commencement Date (provided not caused in whole or
part by Tenant, its agents, contractors, servants, employees, licensees,
invitees, assigns or subtenants), or the sole negligence or gross negligence of
Landlord or the agents, contractors, servants, or employees of Landlord.


 


B.                                      Notwithstanding
anything to the contrary provided in this Lease, each and every term, covenant,
condition and provision of this Lease is hereby made specifically subject to
the provisions of this Section 9. It is expressly understood and agreed
that there shall be no personal liability whatsoever on the part of the Landlord
or any successor in interest of Landlord (or on the part of the officers,
directors and shareholders of any corporation or the members of any firm,
partnership or joint venture which may be the Landlord or any successor in
interest of the Landlord at any time or from time to time) with respect to any
of the terms, covenants, conditions and provisions of this Lease, and Tenant
shall look solely to the equity of Landlord or such successor in interest in
the fee estate of Landlord in the Leased Premises for the satisfaction of each
and every remedy of Tenant in the


 


6

















 


event of any breach by Landlord or by any such successor in interest of
any of the terms, covenants, conditions and provisions of this Lease to be
performed by Landlord, such exculpation of corporate and/or personal liability
to be absolute and without any exception whatsoever.


 


C.                                      Notwithstanding
anything contained in this Section or any other Section in this
Lease, in no event shall Landlord be liable to Tenant for any consequential,
special, indirect or punitive damages.


 


10.                                 Improvements to Leased Premises.


 


A.                                    All construction
work performed by Tenant under the terms of this Lease shall be done in a good
and workmanlike manner and in compliance with all applicable laws, ordinances,
regulations and orders of governmental authorities and with all applicable
codes of all insurers of the Building. Landlord may inspect the work of the
Tenant at reasonable times and shall give notice of observed defects.


 


B.                                      On or before the
commencement of the Term, Tenant shall, at its sole cost and expense, complete
all improvements and other work to be performed by it pursuant to
Schedule ”B-l”. Tenant shall be permitted by Landlord to enter the Leased
Premises for the purpose of performing its obligations under
Schedule ”B-l” and for the purpose of installing its fixtures and other
equipment, provided:


 


(i)                                     Tenant shall have
obtained Landlord’s written approval of the plans and specifications for such
work; and


 


(ii)                                  Tenant shall have
deposited with Landlord the policies or certificates of insurance required in
Sections 8 and 11; and


 


(iii)                               Tenant shall have
secured all necessary permits and approvals of all boards, bureaus and agencies
having jurisdiction and Tenant shall have provided copies of such to Landlord;
and


 


(iv)                              Tenant shall have
provided Landlord with all requested financial information and documentation;
and


 


(v)                                 Tenant’s activities
shall be conducted so as not unreasonably to interfere with Landlord’s
construction activities or with other tenants.


 


C.                                      Tenant shall, at
its expense, remove from the Leased Premises and from the Building, all trash
which may accumulate in connection with Tenant’s activities. During such
period, Tenant shall perform all duties and obligations imposed by this Lease,
including, without limitation, those provisions relating to insurance and
indemnification, saving and excepting only the obligation to pay Fixed Rent
(other than Additional Rent arising out of any failure of Tenant to perform its
obligations under this Lease), which obligation shall commence when the Term
commences.


 


D.                                     No work which
Landlord permits Tenant to do pursuant to this Lease, whether in the nature of
erection, construction, alteration or repair, shall be deemed to be for the
immediate use and benefit of Landlord so that no construction or other lien


 


7

















 


shall be allowed against the estate of Landlord by reason of any
consent given by Landlord to Tenant to improve the Leased Premises. Tenant
shall pay promptly all persons furnishing labor or materials with respect to
any work performed by Tenant or its contractors on or about the Leased
Premises. In the event any construction or other lien or notice of intention to
claim such lien shall at any time be filed against the Leased Premises or the
Building by reason of work, labor, services or materials performed or
furnished, or alleged to be performed or furnished, to Tenant or to anyone
holding the Leased Premises through or under Tenant, Tenant shall, within
fifteen (15) days after notice of the filing thereof, cause the same to be
discharged of record or bonded to the satisfaction of Landlord. If Tenant shall
fail to cause such lien or notice to be discharged or bonded within the period
aforesaid then, in addition to any other right or remedy of Landlord, Landlord
may, but shall not be obligated to, discharge it by paying the amount claimed
to be due, and the amount so paid by Landlord including reasonable attorneys’
fees incurred by Landlord in procuring the discharge of such lien or notice,
together with interest thereon at the Default Rate, shall be due and payable by
Tenant to Landlord as Additional Rent.


 


E.                                       Tenant shall be
responsible for and shall pay to Landlord, upon demand and as Additional Rent,
all attorneys, architectural, engineering and other professional fees and
expenses with respect to any and all review and approval regarding Tenant’s
improvements to the Leased Premises.


 


F.                                       After
commencement of Tenant’s Term, Tenant shall have no right to cancel this Lease,
seek a diminution of Rent, sue for damages, or assert any other contractual,
legal or equitable remedy based either on a claim that Landlord failed to
deliver possession in accordance with the terms of this Lease or based on a
claim that the size, location, layout, dimensions or construction of the Leased
Premises or the Building in which the Leased Premises is located or service
areas (if any), sidewalks, parking or other common areas (if any), or any other
facilities to be furnished by Landlord, were not completed or furnished in
accordance with the terms of this Lease. Notwithstanding the foregoing, if
after commencement of Tenant’s Term, and during the Term hereof, Landlord is in
default under any of its Lease obligations, Tenant shall have such rights at
law or equity to which it may be entitled on account of such default, except
that Tenant hereby waives any right to cancel or terminate this Lease or to
seek a diminution of Rent. After commencement of Tenant’s Term, Tenant shall be
deemed to have certified to Landlord and to the holder of any mortgage to which
this Lease is, or shall thereafter be, subject and subordinate, that the Leased
Premises has been delivered to it in accordance with the terms of this Lease,
that possession thereof has been fully and completely accepted by Tenant who is
then in possession of the same, and that the date for the payment of Annual
Fixed Rent hereunder have all theretofore commenced and that the Leased Premises,
the parking area, and all other portions of the Building have been completed in
accordance with the requirements and terms of this Lease and that there has not
been any violation of any of the Lease terms on the part of the Landlord. The
forgoing provision shall be self-operative and no further instrument, letter or
certificate shall be required by the Landlord or any such mortgagee unless
either said Landlord or mortgagee shall deem same appropriate, in which event,
in confirmation of the forgoing, the Tenant shall promptly execute, in writing,
any instrument, letter and/or certificate containing the foregoing and each
other like provisions in regard to the condition


 


8

















 


of the Leased Premises, the Building in which the Leased Premises is
located, the Rent(s) and Terns as shall be requested by the Landlord and/or
said mortgagee and Tenant hereby constitutes and appoints Landlord the Tenant’s
attorney-in-fact to execute any such instrument(s), letter(s) and/or
certificate(s) for and on behalf of the Tenant.


 


G.                                      All unattached,
movable trade fixtures and movable furniture (as distinguished from leasehold
improvements) owned by Tenant and installed in the Leased Premises shall remain
the property of Tenant and shall be removable at any time, including upon the
expiration of the Term; provided Tenant shall not at such time be in default of
any terms, conditions, provisions or covenants of this Lease, and provided
further that Tenant shall repair any damage to the Leased Premises caused by
the removal of said fixtures and furniture. If Tenant is in default, Landlord
shall have the benefit of any applicable lien on Tenant’s property located in
or on the Leased Premises as may be permitted under any federal or state laws,
and in the event such lien is asserted or filed by Landlord in any manner or by
operation of law, Tenant shall not remove or permit the removal of said
property until the lien has been removed and all defaults have been cured and
Tenant hereby expressly grants to Landlord a security interest in all of
Tenant’s property located in or on the Leased Premises. This Lease Agreement
also is intended to be a security agreement under the Uniform Commercial Code
and Landlord shall be entitled to all the rights and remedies of a Secured
Party under said Uniform Commercial Code in addition to all of its rights and
remedies hereunder or under other applicable law or agreement with Tenant.


 


11.                                 Alterations by Tenant.


 


A.                                    Tenant shall not
make during the Lease Term, or any extensions thereof, any alterations or
additions to the Leased Premises unless with the prior written approval of
Landlord and then only in accordance with plans and specifications therefor
approved by Landlord and subject to such conditions as Landlord may require,
including, but not limited to, that Tenant be required to pay for any increased
cost to Landlord occasioned thereby or attributed thereto (including, but not
limited to, any increase in real estate taxes, omitted or added assessments,
insurance the like) and to readapt the Leased Premises prior to the termination
of this Lease, all without expense to Landlord. However, any such alterations
or additions which may be approved by Landlord and made by Tenant shall be
deemed part of the Leased Premises or the Building and shall not thereafter be
removed by Tenant unless Landlord shall require removal of same, either in
conjunction with its approval or by notice to Tenant given prior to the
termination of this Lease.


 


B.                                      All alterations
and additions by Tenant and installation of furnishings following occupancy
shall be performed outside the normal business hours (unless Landlord shall
permit such work to be done at other times) and shall be coordinated with any
work being performed by Landlord and performed in such manner and by such
contractor(s) as to assure harmonious labour relations and so as not to damage
the Building or interfere with its operations and, except for installation of
furnishings only, shall be performed by Landlord’s contractors or workmen or
other contractors or workmen first approved by Landlord.


 


9

















 


C.                                      As further
conditions to Landlord’s approval of any proposed alterations or additions by
Tenant which are to be made after the beginning of the Lease Term, Tenant shall
(i) secure all necessary governmental approvals, licenses and permits; (ii)
cause the contractor(s) and subcontractor(s) to carry Worker’s Compensation
insurance in amounts approved by Landlord and also comprehensive public
liability insurance with limits as approved by Landlord, and deliver to
Landlord certificates of all such insurance; and (iii) not voluntarily suffer
nor permit any construction, laborer’s or materialmen’s lien, or notice
thereof, to be filed against the Leased Premises or any part thereof by reason
of work, labor, services or materials supplied or claimed to have been supplied
to Tenant; and if any construction, laborer’s or materialmen’s lien or notice
shall at any time be filed against the Leased Premises or any part thereof,
Tenant, within fifteen (15) days after notice of the filing thereof, shall
cause it to be discharged of record by payment, deposit, bond, order of a court
of competent jurisdiction or otherwise. If Tenant shall fail to cause such lien
or notice to be discharged or bonded within the period aforesaid, then, in
addition to any other right or remedy, Landlord may, but shall not be obligated
to, discharge it either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit or by bonding proceedings. Any amount so paid
by Landlord, plus all of Landlord’s costs and expenses associated therewith,
shall constitute Additional Rent payable by Tenant under this Lease and shall
be paid by Tenant to Landlord on demand.


 


D.                                     Tenant shall be
responsible for and shall pay to Landlord, upon demand and as Additional Rent,
all attorneys, architectural, engineering and other professional fees and
expenses incurred with respect to any and all review and approval regarding
Tenant’s alterations or additions to the Leased Premises.


 


E.                                       Nothing in this
Lease shall be deemed or construed in any way as constituting consent by
Landlord for the making of any alterations or additions by Tenant within the
meaning of N.J.S.A. 2A:44A-1 et seq., or any amendment thereof, or constituting
a request by Landlord, express or implied, to any contractor, subcontractor,
laborer or materialman for the performance of any labor for the use or benefit
of Landlord.


 


F.                                       Tenant shall promptly
pay when due the costs and expenses of all such alterations and additions as
referred to in this Section 11 and shall indemnify Landlord against any
loss, cost or expense occasioned directly or indirectly as a result of such
alterations and additions, including, without limitation, reasonable attorneys’
and other professional fees and expenses.


 


12.                                 Permitted Use. Tenant covenants and agrees to
initially and continuously use and occupy the Leased Premises and such use and
occupancy shall be only in conformity with the laws or requirements of any
governmental authority and for the use specified in Section 1 hereof and
not to use nor permit any use of the Leased Premises which creates any safety
hazard, or which would be dangerous to the Leased Premises, the Building or the
occupants of same, or which would be disturbing to other tenants or occupants
of the Building, or which would cause any increase in premium for any insurance
which the Landlord may then have in effect with respect to the Building generally.


 


10

















 


13.                                 Cost of Operation and Maintenance.


 


A.                                    For the purposes of
this Lease:


 


(i)                                     The term “Cost of
Operation and Maintenance” shall mean all fees, charges, costs and expenses
paid or incurred by Landlord or on behalf of Landlord with respect to the
ownership, operation, cleaning, repair, safety, management, security and
maintenance of the Leased Premises, the Building and the Common Areas
(described as those areas and facilities which may be furnished by Landlord in
or near the Palmer Square and Retail Center Area, as set forth on
Schedule A-2, for the non-exclusive general common use of tenants, whether
or not retail, residential, office, hotel and/or restaurant tenants also use
such areas and facilities), and with respect to the services provided tenants
including, but not limited to, all of the following: all real estate taxes
assessed or levied upon or with respect to the Building imposed by federal,
state or local governmental authorities having jurisdiction thereover; sewer
rental; gas and/or other fuel used for heating; hot and cold water; gas and
electric and any other utility charges to the extent not separately paid for,
reimbursed by or charged to a tenant; all costs incurred for air conditioning,
ventilation and heating; cleaning services and maintenance; the cost or rental
of all building and cleaning supplies, tools, materials, machines and
equipment, elevators; fire, liability, rent, plate glass and any other
insurance premiums; snow and ice removal; all repairs and maintenance; the
amortization of all replacements of and to the mechanical systems and all other
capital expenditures; exterior maintenance and maintenance of lawns,
landscaping shrubbery and parking areas; exterminating services; decorations;
painting; salaries, wages and bonuses paid to employees of Landlord engaged in
the operation, cleaning, repair, safety, management, security or maintenance of
the Leased Premises, the Building or in providing services to tenants (including
social security, unemployment insurance, disability benefits, pensions,
hospitalization, retirement plans, group insurance and fringe benefits such as
vacation, holiday and proper allowances); charges of independent contractors
performing work included within this definition of Cost of Operation and
Maintenance; waste, garbage and trash collection and removal; and an overhead
cost equal to fifteen (15%) per cent of the total Cost of Operation and
Maintenance prior to inclusion of this overhead cost.


 


(ii)                                  The costs and
expenses incurred in operating and maintaining or in causing to be operated or
maintained the Common Areas (including all parking areas) pursuant to this
Section shall be allocated on an equitable basis among the respective
classes of retail, office, hotel, restaurant and residential occupants of the
Palmer Square and Retail Center Area. For the purposes of this Section,
Landlord’s operating costs shall include all amounts, costs of operation and
expenditures (as hereinabove defined) which are identified as applicable and
relating solely to the total leasable office floor area in the Palmer Square
and Retail Center Area and that portion of the Common Areas reasonably
allocable thereto, together with those items, amounts, costs and expenditures which
(if they cannot be so specifically identified) are allocated on an equitably
proportionate basis to said office floor area and Common Areas.


 


11

















 


(iii)                               “Base Expense Year”
shall be the 2003 calendar year.


 


(iv)                              “Operational Year” shall
mean each calendar year after the Base Expense Year.


 


(v)                                 “Tenant’s Projected
Share” shall mean Tenant’s Proportionate Share multiplied by Landlord’s written
estimate of increase of Cost of Operation and Maintenance for the ensuing
calendar year over the Base Expenses, said written estimate to be delivered by
Landlord to Tenant during December of each year. Tenant’s Projected Share
shall be divided by twelve (12) and shall be payable on the first of each
month, starting on the Commencement Date by Tenant to Landlord as Additional
Rent.


 


(vi)                              “Tenant’s Proportionate
Share” shall be equal to 7.12 percent.


 


(vii)                           The term “Base Expenses
shall mean the annualized Cost of Operation and Maintenance for the Base
Expense Year. For purposes of determining Tenant’s Proportionate Share of
increase relating to increases in the Cost of Operation and Maintenance, the
Base Expenses shall be deemed to have been incurred by Landlord during the Base
Expense Year.


 


B.                                   (i)                                       After
the expiration of the Base Expense Year and each Operational Year, Landlord
shall furnish Tenant a written detailed statement prepared by Landlord of the
Cost of Operation and Maintenance incurred for such Base Expense Year or
Operational Year. During the period of thirty (30) days after receipt of
Landlord’s Statement, Tenant may inspect the records of the material reflected
in said Landlord’s Statement at a reasonable time mutually agreeable to
Landlord and Tenant. Within thirty (30) days after receipt of such Statement
for any Operational Year setting forth Tenant’s proportionate Share of any
increase of Cost of Operation and Maintenance during such Operational Year over
the Cost of Operation and Maintenance in the Base Expense Year (said increase
being referred to herein as the “Cost Increase”), Tenant shall pay same (less
the amount of Tenant’s Projected Share paid by Tenant on account thereof) to
Landlord as Additional Rent.


 


(ii)                                  Commencing with the
First Operational Year, Tenant shall pay to Landlord, as Additional Rent,
Tenant’s Projected Share. If Landlord’s Statement at the end of the then
Operational Year shall indicate that Tenant’s Projected Share exceeded Tenant’s
Proportionate Share of Cost Increase, Landlord shall credit the amount of such
excess against the subsequent payment of Additional Rent due hereunder. If
Landlord’s Statement shall indicate that Tenant’s Proportionate Share of Cost
Increase exceeded Tenant’s Projected Share for the then Operational Year,
Tenant shall forthwith pay the amount of such excess to Landlord. If said
Landlord’s Statement is furnished to Tenant after the commencement of such
Operational Year, there shall be promptly paid by Tenant to Landlord an amount
equal to the portion of such payment allocable to the part of such Operational
Year which shall have elapsed


 


12

















 


prior to the first day of the calendar month next succeeding the
calendar month in which said Landlord’s Statement is furnished to Tenant.


 


C.                                      If the Term shall
expire on a date other than December 31st, any Additional Rent for the
Lease Year in which the date of expiration of the Term shall occur shall be
apportioned in that percentage which the number of days in the period from
January 1st of such Lease Year to such date of expiration, both inclusive,
shall bear to the total number of days in the calendar year in which such
expiration occurs.


 


D.                                  (i)                                       Landlord’s
Statements shall be rendered to Tenant, but Landlord’s failure to render
Landlord’s Statement with respect to any Operational Year or Landlord’s delay
in rendering said Statement beyond a date specified herein shall not prejudice
Landlord’s right to render a Landlord’s Statement with respect to that or any
subsequent Operational Year. The obligations of Landlord and Tenant under the
provisions of this Section with respect to any Additional Rent shall
survive the expiration or any sooner termination of the Term.


 


(ii)                                  Each Landlord’s
Statement shall be conclusive and binding upon Tenant unless within thirty (30)
days after receipt of such Landlord’s Statement Tenant shall notify Landlord
that it disputes the correctness of Landlord’s Statement, specifying the
respects in which Landlord’s Statement is claimed to be incorrect. Pending the
determination of such disputes hereinafter provided, Tenant shall pay
Additional Rent in accordance with the applicable Landlord’s Statement, and
such payment shall be without prejudice to Tenant’s position. In the event that
Tenant disputes the computation set forth on Landlord’s Statement, Tenant shall
have the right to retain an independent certified public accountant, at
Tenant’s sole cost and expense, to inspect the records of the material
reflected on said Statement and in the event said accountant determines that
Landlord’s Statement was in error, the dispute shall be referred to
arbitration. If the dispute shall be determined in Tenant’s favor, Tenant shall
be entitled to a credit against Additional Rent thereafter payable in the
amount of Tenant’s overpayment of Additional Rent resulting from compliance
with Landlord’s Statement.


 


E.                                       Notwithstanding
anything to the contrary, in no event shall the aggregate credits allowable to
Tenant in any Operational Year pursuant to this Section exceed the
Additional Rent payable by Tenant pursuant to this Section, it being the
intention of Landlord and Tenant that the Fixed Rent payable by Tenant
hereunder shall not be reduced by reason of any decrease in the Cost of
Maintenance and Operation.


 


F.                                       Any Additional
Rent payable pursuant to this Section also shall be collectible by
Landlord in the same manner as Fixed Rent and Landlord shall have the same
remedies for non-payment thereof as Landlord has hereunder for non-payment of
Fixed Rent.


 


13

















 


14.                                 Building Operation and Services.


 


A.                                    Landlord shall,
subject to the conditions and limitations set forth in Sections 13,15 and 16,
furnish heat, ventilating, and air conditioning services as normal seasonal
changes may require to provide reasonably comfortable space temperature and
ventilation for occupants of the Building during normal business operation,
daily from 8:00 A.M. to 6:00 P.M., except Saturdays, Sundays and the following
Holidays: New Year’s Day, Memorial Day, Fourth of July, Labor Day, Thanksgiving
Day, Christmas Day, Presidents Day and Martin Luther King’s Birthday.


 


B.                                      Tenant shall pay,
as Additional Rent, a charge of $65.00 per hour for each hour Landlord
provides, at Tenant’s request, heat or air-conditioning, other than during the
hours and on the days set forth above, which payment shall not be a credit to
Tenant in calculating the Cost of Operation and Maintenance pursuant to
Section 13.


 


C.                                      Cleaning shall be
provided by Landlord through Landlord’s employees or independent contractors,
in accordance with Schedule ”G” attached hereto.


 


D.                                     Fully automatic
passenger elevator service shall be provided for the use of all tenants and the
general public for access to and from all floors of the Building.


 


E.                                       Elevator service
for freight shall be supplied in conjunction with service to other tenants at
reasonable times during business hours and at other times at reasonable charges
by management in advance.


 


F.                                       Hot and cold
water for normal public lavatory purposes only shall be provided. If the Tenant
requires water for any additional purposes (including, but not limited to,
private lavatory, kitchen and the like), Tenant shall pay the cost thereof as
shown on a meter to be installed and maintained at Tenant’s expense to measure
such additional consumption.


 


G.                                      Tenant shall be
responsible for the electric energy which is required in the Leased Premises
and shall pay the sum of $1.25 per square foot per year payable as Additional
Rent in equal and successive monthly installments of $520.83. If at any time or
times after the date of this Lease, the rates at which Landlord purchases
electrical energy from the public utility corporation supplying electrical
service to the Leased Premises or to the Building, or any charges incurred or
taxes payable by Landlord in connection therewith, shall be increased or
Tenant’s use of electricity shall materially increase, the electrical charge
shall be increased upon Landlord’s demand in an annual amount which shall
fairly reflect the estimated increase in the annual cost to Landlord of
furnishing electrical service to Tenant under the provisions of this Lease. If
within ten (10) days after any such demand Landlord and Tenant shall fail to
agree upon the amount of such increase in the electrical charge, then, in lieu of
such agreement, the estimated increase in the annual cost to Landlord of
furnishing electrical service to Tenant under the provisions of this Lease
shall be finally determined by an independent electrical engineer selected by
Landlord, who shall certify such determination in writing to Landlord and
Tenant. Landlord’s selection of an independent electrical engineer shall be
subject to Tenant’s approval, which shall


 


14

















 


not be unreasonably withheld or delayed. If Tenant does not disapprove
or consent to Landlord’s selection of an engineer within ten (10) days, such
selection shall be deemed approved. The cost of such consultant shall be paid
by Tenant. Following any such agreement or determination, Landlord and Tenant
shall enter into :a written supplementary agreement, in form satisfactory to
Landlord, modifying this Lease by increasing the electrical charge for the
remainder of the Term in an annual amount equal to such estimated increase in
the annual cost to Landlord of furnishing electrical service to Tenant, as so
agreed or determined. Any such increase in the electrical charge shall be
effective as of the date of such demand and/or inspection and survey and shall
be retroactive to such date if necessary.


 


H.                                     Landlord shall not
be liable in any way to Tenant for any failure or defect in the supply or
character of electric energy furnished on the Leased Premises by reason of any
requirement, act or omission of the public utility serving the Building with electricity.
Tenant’s use of electric energy in the Leased Premises shall not at any time
exceed the capacity of any of the electric conductors and equipment in or
otherwise serving the Leased Premises. In order to insure that such capacity is
not exceeded and to avert possible adverse effect upon the Building electric
service, Tenant shall not, without Landlord’s prior written consent in each
instance, connect to the Building electric distribution system any fixtures,
appliances or equipment other than (i) copy machines, (ii) lamps, (iii)
computers, typewriters and similar small office machines which operate on a
voltage not in excess of 110 or make any alterations or additions to the
electric systems of the Leased Premises. Should Landlord grant such consent,
all additional risers or other equipment required therefore shall be provided
by Landlord and the reasonable cost thereof shall be paid by Tenant upon
Landlord’s demand. As a condition to granting such consent, Landlord may
require Tenant (i) to agree to an increase in the Annual Fixed Rent in an
amount equivalent to the cost of the additional energy to be furnished to
Tenant, of (ii) to cause a separate electric meter to be installed for the
Leased Premises at Tenant’s sole cost and expense and to pay to Landlord, at
rates as then payable to the public utility company supplying service to the
Building, for all electricity consumed in the Leased Premises (without any
adjustment in the Annual Fixed Rent by reason of such costs or expenses or
installation or such payments).


 


I.                                          Landlord
shall furnish and install at Tenant’s expense all replacement lighting tubes,
lamps, bulbs, and ballasts required in the Leased Premises.


 


15.                                 Interruption in Operations or
Services.


 


A.                                    In case there is
any interruption in the furnishing of any operation or service as set forth in
Section 14 herein, Landlord shall not be liable to Tenant therefor, nor
shall Tenant be entitled to any abatement or-reduction in Rent by
reason thereof, nor shall the same give rise to a claim in Tenant’s favour that
such constitutes actual or constructive total or partial eviction.


 


B.                                      Landlord reserves
the right to stop any operation or service when necessary by reason of accident
or emergency, or until necessary repairs have been completed, provided,
however, that in each instance of stoppage, Landlord shall exercise reasonable
diligence to eliminate the cause thereof. except in case of emergency


 


15

















 


repairs, Landlord will give Tenant reasonable advance notice of any
contemplated stoppage and will use reasonable efforts to avoid unnecessary
inconvenience to Tenant by reason thereof.


 


16.                                 Repairs.


 


A.                                    Landlord, at its
expense, will make, or cause to be made structural repairs to exterior walls,
structural columns and structural floors which collectively enclose the Leased
Premises (excluding, however, all doors, door frames, windows and glass) and
the roof over the Leased Premises; provided Tenant shall give Landlord notice
of the necessity for such repairs and provided that the necessity for such
repairs shall not have arisen from nor shall have been caused by the negligence
or willful acts of Tenant, its agents, concessionaires, officers, employees,
licensees, invitees or contractors, and the like.


 


B.                                      All repairs to
the Leased Premises or any installations, equipment or facilities therein,
other than those repairs required to be made by Landlord pursuant to
Section 16 A or Section 25, shall be made by Tenant at its expense.
(As set forth in Section 13, Landlord shall cause certain repairs and
maintenance to be done, on Tenant’s behalf and as Tenant’s agent, for which
Tenant shall remain responsible and for which Tenant shall pay, as provided in
Section 13). Without limiting the generality of the foregoing, Tenant
shall keep the interior of the Leased Premises, together with all electrical,
plumbing and other mechanical installations therein (other than items to be
repaired by Landlord pursuant to Sections 13 and 16A), in good order and repair
and shall make all replacements from time to time required thereto at its
expense; Tenant will not overload the electrical wiring serving the Leased
Premises or within the Leased Premises, and will install at its expense,
subject to the provisions of Section 14, any additional electrical wiring
which may be required in connection with Tenant’s apparatus. Any damage or
injury sustained by any person because of mechanical, electrical, plumbing or
any other equipment or installations whose maintenance, repair or cost shall be
the responsibility of Tenant, shall be paid for by Tenant, and Tenant shall
indemnify and hold Landlord harmless from and against all claims, actions,
damages and liability in connection therewith, including but not limited to,
attorneys’ and other professional fees, and any other costs which Landlord
might reasonably incur (as Additional Rent).


 


C.                                      Tenant shall
repair promptly, at its expense, any damage to the Leased Premises, and, upon
demand, shall reimburse Landlord (as Additional Rent) for the cost of the
repair of any damage elsewhere in the Building, caused by bringing into the
Leased Premises any property for Tenant’s use, or by the installation or
removal of such property regardless of fault or by whom such damage shall be
caused (unless caused solely by Landlord, its agents, employees or
contractors), and in default of such repairs by Tenant, at the expiration of
five (5) days after notice to Tenant, Landlord may make or cause the same to be
made and Tenant agrees to pay to Landlord promptly upon Landlord’s demand, as
Additional Rent, the cost thereof with interest thereon at the Default Rate
until paid.


 


D.                                     Tenant shall be
responsible for and shall pay to Landlord, upon demand and as Additional Rent,
all attorneys’, architectural, engineering and other professional fees and
expenses incurred with respect to any and all review and approval


 


16

















 


regarding Tenant’s repairs to the Leased Premises including, but not
limited to, Landlord’s in-house professionals and staff.


 


E.                                       Landlord shall
not be liable by reason of any injury to or interference with Tenant’s business
arising from the making of any repairs, alterations, additions or improvements
in or to the Leased Premises or the Building or to any appurtenances or
equipment therein. There shall be no abatement of Rent because of such repairs,
alterations, additions or improvements. Landlord shall make good faith efforts
to provide Tenant with prior notification of the making of any repairs, alterations,
additions or improvements to the Leased Premises.


 


F.                                       Landlord
reserves the right at any time and from time to time to:


 


(i)                                     Make or permit
changes in or revisions to the Palmer Square and Retail Center Area, including
without limitation, additions to, subtractions from, rearrangements of,
alterations of, modifications of or supplements to the building areas,
walkways, parking areas, driveways or other Common Areas; and


 


(ii)                                  Construct other
buildings or improvements in the Palmer Square and Retail Center Area and to
make alterations thereof or additions thereto and to build additional stories
on any such building or buildings and to build adjoining stories on any such
building or buildings and to build adjoining same; and


 


(iii)                               Make or penulit changes
or revisions to the Building Complex, including additions and alterations
thereto; and


 


(iv)                              Convey portions of the
Palmer Square and Retail Center Area to others for the purpose of constructing
thereon other buildings or improvements, including additions thereto and
alterations thereof; provided, however, that no such changes, rearrangements or
other construction shall reduce the parking area provided by Landlord below the
number of parking spaces required by law to be provided for the Palmer Square and
Retail Center Area.


 


(v)                                 Notwithstanding the
foregoing, Landlord shall not make or permit any changes, revisions,
construction or conveyance which shall materially adversely affect access to,
or visibility of, the Premises.


 


G.                                      Landlord shall
have the exclusive right to use all or any part of the roof of the Leased
Premises for any purpose; to erect additional stories or other structures over
all or any part of the Leased Premises; to erect in connection with the
construction thereof temporary scaffolds and other aids to construction on the
exterior of the Leased Premises, provided that access to the Leased Premises
shall not be denied; and to install, maintain, use, repair and replace within
the Leased Premises pipes, ducts, conduits, wires and all other mechanical
equipment serving other parts of the Palmer Square and Retail Center Area, the
same to be in a location within the leased Premises as will not unreasonably
deny Tenant’s use thereof. Landlord may make any use it desires of the side or
rear


 


17

















 


walls of the Leased Premises, provided that such use shall not encroach
on the interior of the Leased Premises.


 


17.                                 Relocation of Tenant. DELETED PRIOR TO
EXECUTION.


 


18.                                 Quiet Enjoyment. Tenant, upon paying the Annual
Fixed Rent and all Additional Rent (Rent) herein provided for and, upon
observing, keeping and performing all covenants, agreements and conditions of
this Lease on Tenant’s part to be observed, kept and performed, shall quietly
have and enjoy the Leased Premises throughout the Term of this Lease without
hindrance or molestation by Landlord or by anyone claiming by, through or under
Landlord, subject, however, to the exceptions, reservations and conditions of
this Lease.


 


19.                                 Landlord’s Right of Entry. Landlord shall
have the right to enter the Leased Premises to perform Landlord’s covenants as
set forth in this Lease, to inspect and to insure Tenant’s compliance with the
provisions of this Lease, to make any repairs, replacements or alterations to
the Leased Premises or to the Building or to do any work which Landlord may
deem necessary, to show the Leased Premises to prospective purchasers, and
also, during the last six (6) months of the Lease Term, to show the Leased
Premises to prospective Tenants.


 


20.                                 Surrender of Leased Premises. On the last
day or sooner termination of the Term, Tenant shall quit and surrender the
Leased Premises broom clean, in good condition and repair (reasonable wear and
tear and damage by Acts of God, fire extended coverage perils excepted),
together with all alterations, additions and improvements which may have been
made in, on or to the Leased Premises, except moveable furniture or unattached
moveable trade fixtures put in at the sole expense of Tenant; provided, however,
that Tenant shall not make any alterations, additions or improvements without
the prior written consent of Landlord, which shall not be unreasonably
withheld, conditioned nor delayed and, at the time that Tenant requests
Landlord’s written consent, Tenant shall, in writing, request whether or not
Landlord shall require the subject alterations, additions or improvements to be
removed or any part thereof restored to the condition in which it was
originally delivered to Tenant at the end of the Leasehold Term and, if
Landlord shall so desire, then Tenant, at its cost and expense, on or before
the end of the Term, shall remove from the Leased Premises all of its property,
together with any alterations, additions and improvements, the removal of which
is requested by Landlord, and any or all of such property not so removed shall,
at Landlord’s option, become the exclusive property of Landlord or be disposed
of by Landlord, at Tenant’s sole cost and expense, without further notice to or
demand upon Tenant. If the Leased Premises be not surrendered as and when
aforesaid, Tenant shall indemnify Landlord against loss or liability resulting
from the delay by Tenant in so surrendering the Leased Premises including,
without limitation, the claims made by any succeeding occupant founded on such
delay. Tenant’s obligation under this Section shall survive the expiration
or sooner termination of the Term.


 


21.                                 Miscellaneous Covenants. Tenant shall
faithfully perform all of the covenants and conditions to be performed and observed
by Tenant hereunder and, in addition to those covenants and conditions which
are set forth elsewhere herein, Tenant agrees:


 


A.                                    To secure and
maintain in effect any governmental approvals, licenses and permits as may be
required for Tenant’s use and occupancy of the Leased Premises.


 


B.                                      Not to place,
erect, maintain or display any sign or other marking of any kind whatsoever on
the exterior surface of the walls of the Leased Premises or on any door which
faces any common corridor or hallway (other than a sign identifying Tenant
which Landlord shall supply), without the prior written approval of the


 


18

















 


Landlord, and not to install nor replace any entrance door or other
door facing on any common corridor or hallway other than the standard door
supplied by Landlord without the prior written approval of Landlord.


 


C.                                      Not to use or
place any curtains, blinds, drapes, coverings or signs over any exterior
windows or upon the window surfaces as would be visible from the outside of the
Building unless said are compatible with the Building standards.


 


D.                                     Without the prior
written consent of Landlord, not to place within the Leased Premises nor bring
into the Building any machinery, equipment or other personalty other than
customary office furnishings, copying machines and small machinery such as
typewriters and other similar items of office equipment, not bring into the
Leased Premises nor permit to remain there any item of equipment or machinery
or other personalty having a weight in excess of the floor bearing capacity
reasonably determined by Landlord; and in the event Tenant does place or bring
in machinery, equipment or personalty other than that provided for above,
Landlord may require Tenant to pay all costs of all structural and other
alterations, changes or additions required to be made to the Leased Premises
and Building, in the sole judgment of Landlord, for the safe support of such
machinery, equipment or personalty, together with all costs of engineering or
other studies required in the sole judgment of Landlord, to determine the
required structural and other alterations, changes or additions.


 


E.                                       To keep the
Leased Premises in good order, condition and repair, reasonable wear and tear
excepted, making all repairs and replacements of whatever nature as may be
required in order to do so.


 


F.                                       No X-ray,
nuclear or other radiation type equipment or materials shall be used or stored
in or about the Leased Premises, the Building or the common areas unless all
municipal, state and federal laws, rules and regulations applicable to the use
and/or storage of such equipment or materials have been complied with and the
Leased Premises or other place where such equipment or materials are to be used
or stored has been provided with such shielding as may be necessary to prevent
any harmful radiation or penetration beyond the confines of the Leased Premises
or other place.


 


G.                                      Tenant shall not
contract for any work or service which might involve the employment of labour incompatible
with the employees of the Building Complex, Palmer Square, Palmer Square North,
Palmer Square East or Palmer Square West Areas, including, but not limited to
all retail, office, restaurant, hotel, residential and common areas
(hereinafter collectively referred to as “Palmer Square”) or with employees or
subcontractors of contractors doing work or performing services by or on behalf
of the Landlord, or tenants or other owners of property in Palmer Square.
Tenant shall not perform or omit to perform any act, or permit any party with
whom Tenant has contracted for work or service in or about Palmer Square, to
perform or omit to perform any act which constitutes an unfair labour practice,
or which shall create or prolong any labour dispute, or which shall cause a
disruption in the operation of Palmer Square, or discourage the passage of
customers or business invitees to and from Palmer Square or otherwise interfere
with the beneficial use and enjoyment of the space leased to, occupied by or
being improved or constructed by any other


 


19

















 


tenant of Palmer Square or Landlord or other owners of property in
Palmer Square.


 


22.                                 Rules and Regulations. Tenant covenants and
agrees that Tenant, its employees, agents, servants, invitees, licensees,
contractors, and the like, shall observe faithfully and comply strictly with,
the Rules and Regulations contained in Schedule ”H” attached and made a
part hereof, and such other and further reasonable Rules and Regulations as
Landlord or Landlord’s agents may, after notice to Tenant, from time to time
adopt. Nothing in this Lease shall be construed to impose upon Landlord any
duty or obligation to enforce the Rules and Regulations or terms, covenants or
conditions in any other lease as against any other tenant, and Landlord shall
not be liable to Tenant for violation of the same by any other tenant or such
tenant’s servants, employees, agents, invitees, licensees, contractors and the
like.


 


23.                                 Performance of Tenant’s Covenants. If
Tenant fails to perform any covenant or observe any condition to be performed
or observed by Tenant hereunder or acts in violation of any covenant or
condition hereof and, except with respect to covenants regarding the payment of
Annual Fixed Rent or Additional Rent (any other sums due under this Lease), so
long as Tenant is not proceeding diligently to correct or cure such default,
Landlord may, but shall not be required on behalf of Tenant, perform such
covenant and/or take such steps, including entering upon the Leased Premises,
as may be necessary or appropriate to meet the requirements of any such
covenant or condition, provided that Landlord shall have given Tenant at least
ten (10) days prior notice of Landlord’s intention to do so, unless an
emergency situation exists in which case Landlord shall have the right to
proceed immediately; and all costs and expenses incurred by Landlord in so
doing, including, without limitation, reasonable attorneys’ and other
professional fees and expenses, shall be paid by Tenant to Landlord upon
demand, plus interest at the Default Rate from the date of expenditure(s) by
Landlord, as Additional Rent. Landlord’s proceeding under the rights reserved
to Landlord under this Section shall not in any way prejudice or waive any
rights as Landlord might otherwise have against Tenant by reason of Tenant’s
default.


 


24.                                 Eminent Domain.


 


A.                                    In the event of
exercise of the power of eminent domain whereby (i) such portion of the
Building is taken that access to the Leased Premises is permanently impaired
thereby and reasonably alternate access is not promptly provided by Landlord or
(ii) all or substantially all of the Leased Premises or the Building is taken,
or (iii) if less than substantially all of the Building is taken but Landlord,
acting.-in good faith, determines that it is economically unfeasible to
continue to operate the uncondemned portion as a first-class office building,
then in the case of (i) or (ii), either party and in the case of (iii),
Landlord shall have the right to terminate this Lease as of the date when
possession of that part which was taken is required to be delivered or
surrendered to the condemning authority; and in such case all Rent and other
charges shall be adjusted to the date of termination. The foregoing right of
termination shall be applicable to the taking of any estate or interest
whatsoever which, as a matter of law, would deprive the Landlord or Tenant of
the right to possession (in common with others, as to common areas of the
Building) for any period in excess of ninety (90) days from the date of taking,
whether or not the taking be in fee for a term of years or of any other estate
or interest; and a taking shall include the transfer of title or of any
interest in the Building by deed or other instrument in settlement of or in
lieu of transfer by operation of law incident to condemnation proceedings.


 


20

















 


B.                                      Tenant shall have
no right to participate nor share in any condemnation claim, damage award or
settlement in lieu thereof with respect to any taking of any nature; provided,
however, that Tenant shall not be precluded from claiming or receiving payment
for Tenant’s relocation and moving expenses as may be permitted under
applicable law so long as the amount of same is not subtracted from the award
which Landlord is entitled to receive.


 


25.                                 Casualty Damage.


 


A.                                    In the event of
damage to or destruction of the Leased Premises caused by fire or other
casualty, or of the entrances and other common facilities necessary to provide
normal access to the Leased Premises or to other portions of the Building or
its equipment, which portions and equipment are necessary to provide services
to the Leased Premises in accordance herewith, provided not caused by or
attributable to any act or omission of Tenant, its servants, employees, agents,
invitees, contractors, and the like, Landlord shall undertake to make repairs
and restorations as hereafter provided unless this Lease be terminated by
Landlord.


 


B.                                      If the Leased
Premises shall be totally damaged or rendered wholly untenantable by fire or
other casualty or if the Building shall be so damaged by fire or other casualty
that substantial alteration or reconstruction of the Building shall, in
Landlord’s opinion, be required (whether or not the Leased Premises shall have
been damaged by such fire or other casualty), then in any of such events
Landlord may, at its option, terminate this Lease by giving Tenant thirty (30)
days notice of such termination, which notice shall be given within ninety (90)
days after the date of such damage.


 


C.                                      If the damage is
of such nature or extent, in Landlord’s sole judgment, that more than one
hundred eighty (180) consecutive days, after commencement of the work, would be
required (with normal work crews and hours) to repair and restore the part of
the Leased Premises or Building which has been damaged, Landlord shall so
advise Tenant within a reasonable time after said determination, and either
party, for a period of ten (10) days thereafter, shall have the right to
terminate this Lease by notice to the other, as of the date specified in such
notice, which termination date shall be no later than thirty (30) days after
the date of such notice.


 


D.                                     In the case of
damage to the Leased Premises not caused by the negligence or other tortious
acts of Tenant, its agents, employees, contractors, invitees or licensees, or
the like, which is of a nature or extent that Tenant’s continued occupancy is
substantially impaired, the Annual Fixed Rent otherwise payable by Tenant
hereunder shall be equitably abated or adjusted for the duration of such
impairment, after and if such continues for thirty (30) continuous business
days.


 


E.                                       In connection
with the foregoing, Landlord, if Landlord elects to repair and restore, shall
restore the Leased Premises to substantially its condition prior to the
occurrence of the damage, provided that Landlord shall not be obligated to
repair or restore any alterations, additions or fixtures which Tenant may have
installed (whether or not Tenant has the right or the obligation to remove the
same or is required to leave the same on the Leased Premises as of the
expiration or earlier termination of the Lease) unless Tenant, in a manner
satisfactory to


 


21

















 


Landlord, assures payment in full of all costs as may be incurred by
Landlord in connection therewith. If there be any such alterations, fixtures or
additions and Tenant does not assure or agree to assure payment of the cost of
restoration or repair as aforesaid, Landlord shall have the right to determine
the manner in which the Leased Premises shall be restored so as to be
substantially as the Leased Premises existed prior to the damage occurring, as
if such alterations, additions or fixtures had not then been made or installed.


 


F.                                       Anything to the
contrary in this Lease notwithstanding, expressed or implied, Landlord shall
have no liability to Tenant for and shall have no duty to repair, replace or
restore any damage whatsoever to Tenant’s personal property or Tenant’s
alterations occurring as a result of fire or other casualty or leakage or
seepage of water or any other liquid from any source whatsoever, or breakage of
any pipes, mains or other plumbing located in or about the Building, or snow,
frost, steam, excessive heat or cold, falling plaster, sewage, gas, odors,
noise, or by air conditioning or heating apparatus. Furthermore Landlord has no
obligation to repair or restore in event of casualty or damage caused by an
event which is uninsured or for which payment will not be made by an insurance
company.


 


26.                                 Brokerage. Tenant represents that in the negotiation of
this Lease it dealt with no real estate broker or salesman except Fennelly
Associates, Inc. Tenant hereby agrees to indemnify Landlord and hold it
harmless from any and all losses, damages and expenses arising out of any
inaccuracy or alleged inaccuracy of the above representation, including court
costs and attorneys’ fees. Landlord shall have no liability for brokerage
commissions arising out of a sublease by Tenant and Tenant shall and does
hereby indemnify Landlord and hold Landlord harmless from any and all liability
for brokerage commissions arising out of any such sublease. Landlord shall pay
the commissions of Fennelly Associates, Inc. pursuant to separate agreement.


 


27.                                 Advance Rent and Security Deposit.


 


A.                                    Landlord
acknowledges receipt from Tenant of the Advance Rent ($15,416.67), which shall
be paid by Tenant upon execution of the within Lease by Tenant, and shall be
held by Landlord as security for the performance by Tenant of all obligations
imposed under this Lease which Tenant is required to perform prior to the
commencement of the Term. If such sum is not paid within three (3) days of Tenant’s
execution of this Lease, Landlord shall have the option to terminate this Lease
without any liability to Tenant. Upon commencement of the Term, said Advance
Rent shall be applied towards Tenant’s first monthly installment of Annual
Fixed Rent.


 


B.                                      Upon execution of
the within Lease, Tenant shall deposit with Landlord the sum of $30,833.34 (the
“Security Deposit”) which sum equals two (2) months’ Annual Fixed Rent under
this Lease, as security for the faithful performance and observance by Tenant
of the terms, ‘provisions and conditions of this Lease. In the event that
Tenant defaults in respect of any of the terms, provisions and conditions of
this Lease, including without limitation, the payment of Fixed Rent and
Additional Rent, Landlord may use apply or retain the whole or any part of the
Security Deposit to the extent required for the payment of any Fixed Rent,
Additional Rent or any other sum as to which Tenant is in default or for any
sum which Landlord may expend or may be required to expend by reason of
Tenant’s default in respect of any of the terms, covenants and conditions of
this Lease,


 


22

















 


including, without limitation, all reasonable attorneys’ and other
professional fees and expenses and any damages or deficiency in reletting the
Leased Premises accrued before or after any summary proceedings or other
re-entry by Landlord.


 


C.                                      In the event that
Tenant shall fully and faithfully comply with all of the terms, provisions,
covenants and conditions of this Lease, the Security Deposit except as same may
have been applied by Landlord in accordance with this Lease, shall be returned
to Tenant after the Expiration Date or such earlier termination date of this
Lease, provided such earlier termination is not due to Tenant’s default, and
after Tenant has delivered entire possession of the Leased Premises to Landlord
in accordance with all of the terms and provisions of this Lease.


 


D.                                     Tenant agrees that
in the event Landlord applies any portion of the Security Deposit in accordance
with the provisions of this Lease, Tenant shall immediately upon demand of
Landlord reimburse or pay Landlord for the amount of the Security Deposit so
applied or for the increase in Fixed Rent so that the amount constituting the Security
Deposit during the Term of this Lease shall always be equal to two (2) months’
Annual Fixed Rent.


 


E.                                       In the event of
a sale of the Building or leasing of the Building, or of the portion of the
Building in which the Leased Premises is located, Landlord shall have the right
to transfer the Security Deposit to the vendee or lessee and Landlord shall
thereupon be released by Tenant from all liability for the return of the
Security Deposit, and Tenant agrees to look solely to the new Landlord for the
return of the Security Deposit and it is agreed that the provisions hereof
shall apply to every transfer or assignment made of the Security Deposit to a
new Landlord.


 


F.                                       Tenant further
agrees that it will not assign or encumber or attempt to assign or encumber the
monies constituting the Security Deposit and that neither Landlord nor its
successors or assigns shall be bound by any such assignment, encumbrance or
attempted assignment or encumbrance.


 


28.                                 Mortgagee and Other Agreements.


 


A.                                    In the event any person,
firm, corporation or other entity who is a party to any instrument to which
this Lease is subject or subordinate including, but not limited to, the Lease
Agreement referred to in Section 33, and any mortgage now or hereafter
placed upon the Building or parcel of land on which it is erected or on any
interest created therein) or their successor(s), succeed thereunder to the
interest of the Landlord hereunder in the Building or parcel of land on which
it is erected or acquires the right to possession of the Building or parcel of
land on which it is erected, such person, firm, corporation or other entity
shall not be (i) liable for any act or omission of the party named above as
Landlord under this Lease; (ii) liable for the performance of Landlord’s covenants
hereunder which arise and accrue prior to such person, firm, corporation or
other entity succeeding to the interest of Landlord hereunder or acquiring such
right to possession; (iii) subject to any offsets or defenses which Tenant may
have at any time against Landlord; (iv) bound by any Rent which the Tenant may
have paid previously for more than one month; and (v) in the event the
unexpired Term of this Lease exceeds three (3) years at the time of such
succession or acquisition of the right


 


23

















 


to possession, shall not be bound by any amendment or modification
hereof relating to the reduction of Rent, shortening of Term, or effecting a
cancellation or surrender hereof and made without the consent of such person,
firm, corporation or other entity.


 


B.                                      Tenant agrees,
from time to time as may be requested by Landlord, to execute, acknowledge and
deliver to Landlord all or any of the following: an agreement to recognize and
attorn to any mortgagee or party holding a similar encumbrance now or hereafter
placed on the Leased Premises, or any part thereof; an agreement certifying to
such party as the Landlord reasonably may designate, including any mortgagee,
that this Lease is in full force and effect and that Tenant has no defense,
offsets or counterclaims hereunder or otherwise against Landlord with respect
to this Lease or the Leased Premises (or if any of the foregoing not be the
case, specifying in reasonable detail the extent and nature thereof) and the date
to which Rent has been paid; and any other instrument as may be reasonably
requested to be executed by Tenant by any mortgagee of the parcel of land,
Building or any interest therein, so long as the rights of Tenant as provided
for by this Lease are not materially affected by any such other instrument.


 


C.                                      Notwithstanding
the execution and delivery of the within Lease Agreement by Landlord, this
Lease, and the respective rights and obligations of Landlord and Tenant
hereunder, are expressly subject to the approval of all of the terms and
provisions of this Lease by Landlord’s interim and permanent lenders.


 


29.                                 Subordination.


 


A.                                    This Lease and the
estate, interests and rights hereby created are subordinate to any mortgage now
or hereafter placed upon the said parcel of land, the Building or any interest
therein including, without limitation, any mortgage on any leasehold estate and
subordinate to all renewals, modifications, consolidations, replacements and
extensions of same as well as any substitutions thereof.


 


B.                                      In the event that
a bona fide institutional lender shall request reasonable modifications in this
Lease, as a condition of providing Landlord with financing for the construction
of any alterations or improvements of the Leased Premises, Building, Palmer
Square and Retail Center Area, then Tenant shall not unreasonably withhold or
delay its written consent to such modifications provided that same do not
materially increase the obligations of Tenant hereunder or materially adversely
affect either the leasehold interest hereby created or Tenant’s use and
enjoyment of the Leased Premises.


 


C.                                      Tenant, if
requested by Landlord, shall execute any such instruments in recordable form as
may be reasonably required by Landlord in order to confirm or effect the
subordination of this Lease in accordance with the terms of this
Section and any other Section herein; and agrees that in the event
any person, firm, corporation or other entity acquires the right to possession
of the land and the Building free of the leasehold interest of the Landlord
aforesaid, including any mortgagee or holder of any estate or interest having
priority over this Lease, Tenant shall, if requested by such person, firm,
corporation or other entity, attorn to and become the Tenant of such person,
firm, corporation or other entity upon


 


24

















 


the same terms and conditions as are set forth herein for the balance
of the Lease Term hereof.


 


D.                                     Tenant agrees to
give any mortgagee of Landlord, by certified mail, return receipt requested, a
copy of any notice of default served upon Landlord, provided that prior to such
notice Tenant has been notified of the address of such mortgagee. Tenant
further agrees that if Landlord shall fail to cure such default within the time
allowed by this Lease, then such mortgagee shall have an additional thirty (30)
days within which to cure such default (but shall in no event be obligated to
cure such default), or if such default cannot be cured within that time, then
such additional time as may be necessary if within such thirty (30) days such
mortgagee has commenced and diligently pursued the remedies necessary to cure
such default in which” event Tenant shall continue to be bound by the terms of
this Lease while such remedies are being so diligently pursued.


 


30.                                 Assignment and Subletting.


 


A.                                    Tenant shall not
assign this Lease, in whole or in part, nor sublet all or any part of the
Leased Premises, nor license concessions or lease departments therein, without
first obtaining the written consent of Landlord, which consent may be withheld
in the sole and absolute discretion of Landlord. This prohibition includes any
subletting or assignment which would otherwise occur by operation of law,
merger, consolidation, reorganization, transfer or other change of Tenant’s
corporate or proprietary structure, or an assignment, subletting to or by a
receiver or trustee in any federal or state bankruptcy, insolvency, or other
proceedings. Consent by Landlord to any assignment or subletting shall not
constitute a waiver of any obligation of the Tenant to Landlord (it being
understood that Tenant shall remain liable notwithstanding any assignment or
subletting) nor shall consent by the Landlord constitute a waiver of the
requirement for such consent to any subsequent assignment or subletting.


 


B.                                      Notwithstanding
subparagraph A above, if this Lease is assigned to any person or entity
pursuant to the provisions of the Bankruptcy Code, 11 U.S.C., 101 et seq. (the
“Bankruptcy Code”), any and all monies or other considerations payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord and shall be and remain the exclusive property of
Landlord or of the estate of Landlord within the meaning of the Bankruptcy
Code. Any and all monies or other considerations constituting Landlord’s
property under the preceding sentence not paid or delivered to Landlord shall
be held in trust for the benefit of Landlord and be promptly paid or delivered
to Landlord.


 


C.                                      If Tenant is a
corporation or partnership (other than a corporation, the outstanding voting
stock of which is listed on a “national securities exchange”, as defined in the
Securities Exchange Act of 1934) and at any time after the execution of this
Lease any part or all of the corporate or partnership shares of interest shall
be transferred by sale, assignment, bequest, inheritance, operation of law or
other disposition (including such a transfer to or by a receiver or trustee in
federal or state bankruptcy, insolvency, or other proceedings) so as to result
in a change in the present control of said corporation or partnership by the
person or persons now owning a majority of said corporate or partnership shares
or interest, Tenant shall give Landlord notice of such event within fifteen
(15) days


 


25

















 


from the date of such transfer. In such event and whether or not Tenant
has given such notice, Landlord may elect to-terminate this Lease,
at any time thereafter, by giving Tenant notice of such election, in which
event this Lease and the rights and obligations of the parties hereunder, shall
cease as of a date set forth in such notice which date shall not be less than
sixty 60 days after the date of such notice. In the event of any such
termination, all Rent (other than any Additional Rent due Landlord resulting
from Tenant’s failure to perform any of its obligations hereunder) shall be
adjusted as of the date of such termination. Notwithstanding the immediate
foregoing conditions, in the event a change in the present control of Tenant
does not result in a reduction in the Tenant’s net worth, either at the time of
the execution of the within Lease or at the time of said change of ownership,
whichever net worth is greater, and further providing that Tenant is not in
default of any of the monetary or non-monetary provisions of the within Lease,
then and in such event Landlord may not elect to terminate this Lease.


 


D.                                     The acceptance by
Landlord of the payment of Rent following any assignment or other transfer
prohibited by this Section shall not be deemed to be a consent by Landlord
to any such assignment or other transfer nor shall the same be deemed to be a
waiver of any rights or remedy of Landlord hereunder.


 


E.                                       In the event
that Landlord consents to a subletting of the Leased Premises, or any
assignment of this Lease by Tenant, Landlord shall be entitled to recapture and
receive payment from Tenant of any profit realized by Tenant from assignment of
the Lease or subletting of the Leased Premises at a Rent greater than the Rent
reserved hereunder. Tenant shall pay any such profit to Landlord promptly upon
its receipt by Tenant, whether it is received in monthly or other periodic
payments or in a lump sum. For purposes of this Section ”profit” shall
refer to the difference between: (i) all payments made by a subtenant or
assignee to Tenant as Rent or otherwise under or in connection with said
assignment or sublease; and (ii) the costs and expenses paid by Tenant in
connection with said assignment or sublease including the Annual Fixed Rent and
Additional Rent payable hereunder with respect to the assigned or sublet space
and the reasonable brokerage, legal and alteration expenses, if any, incurred
in connection with said assignment or sublease, calculated as if amortized over
the Lease Term. Promptly after the commencement of any such assignment or
sublease Tenant shall deliver to Landlord a statement of the expenses incurred
in connection with the assignment or subletting and payments of the profit in
connection therewith shall be made monthly as Additional Rent hereunder.


 


31.                                 Default.


 


A.                                    Any other
provisions in this Lease notwithstanding, if (i) Tenant fails to pay any Rent
or other sum of money due hereunder when due or (ii) Tenant either fails to
initially use and occupy the Leased Premises or subsequently vacates the Leased
Premises, or (iii) Tenant fails to observe or perform any of the other Tenant
covenants or agreements herein contained, other than a default involving the
payment of money, and such failure continues after notice for more than fifteen
(15) days and such additional time, if any, as is reasonably necessary to cure
such failure, provided that Tenant has diligently commenced to cure and is continuing
to prosecute said cure to completion, or (iv) Tenant is in default under
Section 31 C,


 


26

















 


or (v) Tenant makes any assignment for the benefit of creditors, or
(vi) Tenant commits an act of bankruptcy or files a petition or commences any
proceeding under any bankruptcy or insolvency law, or (vii) a petition is filed
or any proceeding is commenced against Tenant under any bankruptcy or
insolvency law and such petition or proceeding is not dismissed within thirty
(30) days, or (viii) Tenant is adjudicated a bankrupt, or (ix) Tenant by any
act indicates its consent to, approval of or acquiescence in, or a court
approves, a petition filed or proceeding commenced against Tenant under any
bankruptcy or insolvency law, or (x) a receiver or other official is appointed
for Tenant or for a substantial part of Tenant’s assets or for Tenant’s
interest in this Lease, or (xi) any attachment or execution against a
substantial part of Tenant’s assets or of Tenant’s interests in this Lease
remains unstayed or undismissed for a period of more than ten (10) days, or
(xii) a substantial part of Tenant’s assets or of Tenant’s interest in this
Lease is taken by legal process in any action against Tenant, or (xiii) Tenant
fails to pay to any federal, state or local agency any taxes claimed by such
agency, then, in any such event, Tenant shall be deemed to be in default
hereunder, and Landlord may, if the Landlord so elects, at any time thereafter,
terminate this Lease and the tenancy created hereby, by giving three (3) days’
notice of such election to Tenant and/or Landlord may re-enter the Leased
Premises, by summary proceedings or otherwise, and may remove Tenant and all
other persons and property from the Leased Premises, and may store such
property in a public warehouse or elsewhere (at the cost of or the account of
Tenant) with or without resort to legal process and without Landlord being
deemed guilty of trespass or conversion or becoming liable for any loss or
damage occasioned thereby or otherwise being liable to prosecution therefor.


 


B.                                      In the event that
the relation of the Landlord and Tenant may cease or terminate by reason of the
termination of this Lease by Landlord or by reason of the re-entry of the
Landlord under the terms and covenants contained in this Lease or by reason of
the summary dispossess or ejectment of the Tenant by summary proceedings, or
otherwise, or after the abandonment of the Leased Premises by the Tenant, the
Tenant shall remain liable and shall pay in monthly payments the Fixed Rent and
Additional Rent which accrues subsequent to the cessation or termination of the
relationship of Landlord-Tenant, and the Tenant shall pay as damages for the
breach of the covenants contained in this Lease the difference between the
Fixed Rent and Additional Rent reserved and the Rent collected and received, if
any, by the Landlord, during the remainder of the unexpired Term, such
difference or deficiency between the Fixed Rent and the Additional Rent
reserved and the Rent collected, if any, shall become due and payable in
monthly payments during the remainder of the unexpired Term, as the amounts of
such difference or deficiency shall from time to time be ascertained. In the
event the Landlord relets the Leased Premises during any such unexpired period
of the Tenant’s Lease, for Rent in excess of that due under the within Lease,
Landlord need not credit such excess Rent against any unpaid Fixed Rent or
Additional Rent owed by the Tenant. In addition, Tenant shall indemnify
Landlord during the remaining period before this Lease would otherwise expire
against all loss or damage suffered by reason of such default, cessation or
termination, including but not limited to, all costs, salaries, fees,
commissions and expenses of reletting as well as all reasonable attorneys’ and
other professional fees, expenses and costs incurred by Landlord in pursuit of
its remedies hereunder.


 


27

















 


C.                                      Notwithstanding
anything to the contrary set forth above Tenant shall not at any time during
the Term hereof permit its net worth plus preferred stock to be less than one
year’s Annual Fixed Rent. The foregoing obligation of Tenant is a material
obligation of Tenant’s tenancy under this Lease.


 


D.                                     Landlord shall
have all rights and remedies now or hereafter existing at law with respect to
the enforcement of Tenant’s obligations hereunder and the recovery of the
Leased Premises, including without limitation, those set forth in N.J.S.A.
2A:18-53, as amended, and all amendments, modifications and substitutions
thereof hereafter enacted. No right or remedy herein conferred upon or reserved
to Landlord shall be exclusive of any other right or remedy, but shall be
cumulative and in addition to all other rights and remedies given hereunder or
now or hereafter existing at law. Landlord shall be entitled to injunctive
relief in case of the violation, or attempted violation, of any covenant,
agreement, condition or provision of this Lease, or to a decree compelling
performance of any covenant, agreement, condition or provision of this Lease.


 


E.                                       Nothing herein
contained shall limit or prejudice the right of Landlord by reason of such
default to exercise any or all rights or remedies available to Landlord by reason
of such default or to prove and obtain in proceedings under any bankruptcy or
insolvency laws, an amount equal to the maximum allowed by any law in effect at
the time when, and governing the proceedings in which, the damages are to be
proven, whether or not the amount be greater, equal to, or less than the amount
of the loss of damage referred to above.


 


32.                                 Landlord’s Option to Terminate Lease.


 


DELETED PRIOR TO EXECUTION


 


33.                                 Underlying Leases and Estates. This
Lease and the estate, interests and rights hereby created shall be and remain
subject and subordinate to any and all underlying agreements, leases or other
instruments and to any extension or modifications thereof by virtue of which
the Landlord is or may be entitled to possession of the Building and parcel of
land on which it is erected.


 


34.                                 Successors and Assigns. The obligations of
this Lease shall be binding upon and inure to the benefit of the parties
hereunder and their respective successors and assigns; provided that Landlord,
and each successive owner of the Building, shall be liable only for obligations
accruing during the period of its ownership or interest.


 


35.                                 Waivers. No delay or forbearance by Landlord in exercising
any right or remedy hereunder or in undertaking or performing any act or matter
which is not expressly required to be undertaken by Landlord shall be
construed, respectively, to be a waiver of Landlord’s rights or to represent
any agreement by Landlord to undertake or perform such act or matter
thereafter.


 


36.                                 Waiver of Jury Trial and Counterclaim.
It is mutually agreed by and between Landlord and Tenant that the respective
parties shall and they hereby do waive trial by jury in any action, proceeding
or counterclaim brought by either of the parties against the other on any
matter whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant’s use of or occupancy of said
Leased Premises and/or any claim of injury or damage and any emergency
statutory or any other statutory remedy. It is further mutually agreed that in
the event Landlord


 


28

















 


commences any summary proceeding for non-payment of Rent, Tenant will
not interpose any counterclaim or defense in the nature of setoff, of whatever
nature or description in any such proceeding.


 


37.                                 Severability. Each covenant and agreement in this
Lease shall for all purposes be construed to be a separate and independent
covenant or agreement. If any provision in this Lease or the application
thereof shall to any extent be invalid, illegal or unenforceable, the remainder
of this Lease and the application of such provision other than that which is
invalid, illegal or unenforceable, shall not be affected thereby; and such
provisions in this Lease shall be valid and enforceable to the fullest extent
permitted by law.


 


38.                                 Notices. All notices or other communications required or
permitted hereby shall be effective only if the same are in writing and are
signed by the party giving the notice or by an agent or other person authorized
in writing to so act on behalf of such party. Notices to Tenant may be given by
leaving same at the Leased Premises during business hours or by registered or
certified mail, return receipt requested; and notices to Landlord may be given
either by delivery to Landlord at the address stated above or by registered or
certified mail, return receipt requested, with copies to Stuart B. Dember,
Esquire, Hale and Doff LLP, 650 College Road East, Princeton, New Jersey 08540.
All notices shall be deemed given unless specified herein, on the date when the
same are delivered, if delivered, or on the date when the same are deposited in
the mail.


 


39.                                 Amendment and Modifications. This writing
is intended by the parties as a final expression of their agreement and as a
complete and exclusive statement of the terms thereof; all negotiations,
considerations and representations between the parties have been incorporated
herein. No course of prior dealings between the parties or their officers,
employees, agents or affiliates shall be relevant or admissible to supplement,
explain, or vary any of the terms of this Lease. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevant or admissible to
determine the meaning of any of the terms of this Lease. No representations,
understandings, or agreements have been made or relied upon in the making of
this Lease other than those specifically set forth herein. This Lease can be
modified only by a writing signed by the party against whom the modification is
enforceable.


 


40.                                 Bankruptcy.


 


A.                                    In the event that
Tenant becomes the subject debtor in a case pending under the Bankruptcy Code
or in any Bankruptcy Court or Division, Landlord’s right to terminate this
Lease shall be subject to the rights of the Trustee in Bankruptcy to assume or
assign this Lease. To the extent permitted or allowed by law, the Trustee shall
not have the right to assume or assign this Lease until the Trustee (i)
promptly cures all defaults under the Lease, (ii) promptly compensates Landlord
for monetary damages incurred as a result of such default, and (iii) provides
“adequate assurance of future performance” which shall mean (in addition to any
other statutory requirements) that all of the following have been satisfied:
(i) in addition to Rent payable under the Lease the Trustee shall establish
with Landlord a Security Deposit equal to three (3) months’ Fixed Rent; (ii) maintain
said Security Deposit in said amount whenever it is drawn upon by Landlord;
(iii) Trustee must agree that Tenant’s business shall be conducted in a
first-class manner; (iv) the use of the Leased Premises cannot change. If all
the foregoing are not satisfied Tenant shall be deemed not to have provided
Landlord with adequate assurance of future performance of this Lease.


 


29

















 


B.                                      In addition, if
Tenant becomes the subject debtor under the Bankruptcy Code or in any
Bankruptcy Court or Division, any person or entity to which this Lease is
assigned pursuant to the provisions of the Bankruptcy Code, 11 U.S.C., §101 et
suq., 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 such assignment.
Any such assignee shall, upon demand, execute and deliver to Landlord an
instrument confirming such assumption.


 


41.                                 Industrial Site Recovery Act.


 


A.                                    Tenant shall, at
Tenant’s own expense, comply with the Industrial Site Recovery Act, N.J.S.A.
13:1K-6, et seq. and the regulations promulgated thereunder (“ISRA”). Tenant
shall not, however, have any obligation or liability whatsoever in respect of
any spill or discharge of hazardous substances or wastes or any other
non-compliance with ISRA which is caused by any person other than Tenant.
Tenant shall, at Tenant’s own cost and expense, make all submissions to,
provide all information to, and comply with all requirements of, the Industrial
Site Evaluation Element (“The Element” of the New Jersey Department of
Environmental Protection (“NJDEP”). Should the Element or any other division of
NJDEP determine that a clean up plan be prepared and that a clean up be
undertaken because of any spills or discharges of hazardous substances or
wastes at the Premises occurring or arising from Tenant’s use and occupancy,
then Tenant shall, at Tenant’s own expense, prepare and submit the required
plans and financial assurances, and carry out the approved plans. Tenant’s
obligations under this paragraph shall arise if there is any closing,
terminating or transferring of Tenant’s operation at the Premises pursuant to
ISRA or other triggering event by Tenant. At no expense to Landlord, Tenant
shall promptly provide all information reasonably requested by Landlord for
preparation of non-applicability affidavits, de minimis quantity exemption
application, or other required submissions, and shall promptly sign such
affidavits when reasonably requested by Landlord. Tenant shall indemnify,
defend and save harmless Landlord from all fines, suits, procedures, claims and
actions of any kind arising out of or in any way connected with any spills or
discharges or hazardous substances or wastes at the Premises occurring or
arising from Tenant’s use and occupancy, and from all fines, suits, procedures,
claims and actions of any kind arising out of Tenant’s failure to comply with
this Paragraph. Tenant’s obligations and liabilities under this Paragraph shall
continue so long as Landlord remains responsible for any spills or discharges
of hazardous substances or wastes by Tenant at the Premises occurring or
arising from Tenant’s use and occupancy. Tenant’s failure to abide by the terms
of this Paragraph shall be restrainable by injunction.


 


B.                                      Landlord shall,
at Landlord’s own expense, comply with ISRA in all instances beyond Tenant’s
responsibility as set forth above. To the extent the Element or any other
Division of NJDEP requires information from Landlord, Landlord shall promptly
provide all information requested. Should the Element or any other Division of
NJDEP determine that a clean up plan be prepared and that a clean up be
undertaken because of any spills or discharges of hazardous substances or waste
at the Premises, by any party other than Tenant, then and in such case, Tenant
shall not be responsible and the party who is responsible, Landlord, other
tenant or other party, shall, at its own expense prepare and submit required
plans


 


30

















 


and financial assurances and carry out the approved plans. Landlord
shall indemnify, defend and save harmless Tenant from all fines, suits,
procedures, claims and actions of any kind arising out of or any way connected
with any spillages, discharges of hazardous substances or waste or other action
by Landlord at the Premises and not occurring or arising from Tenant’s use and
occupancy, and from all fines, suits, procedures, claims and actions of any
kind arising out of Landlord’s failure to comply with this Paragraph.
Landlord’s obligations under this Paragraph shall survive the expiration or
termination of this Lease. Landlord’s failure to abide by the terms of this
Paragraph shall be restrainable by injunction.


 


C.                                      In the event that
Landlord shall require from Tenant information and evidence of Tenant’s
Standard Industrial Classification number, the nature of Tenant’s business
being operated upon the Leased Premises, the use Tenant In the event any of the
foregoing Tenant’s obligations have not been complied with, then and in such
event, Tenant shall be responsible to continue to pay monthly Base Rental and
all Additional Rental until said NJDEP approval is delivered to Landlord,
notwithstanding Tenant may not be in possession. The monthly Base Rental Tenant
shall be required to pay hereunder shall be double the Base Rental for the last
month of the Term made of the Leased Premises or like information to be
submitted to NJDEP or any successor governmental department or agency in
connection with a proposed sale, leasing, exchange, financing, refinancing or
other disposition of the Leased Premises, or of any part thereof, or of the
building in which or land upon which the Leased Premises is located, or any
part thereof, then Tenant shall upon written request of Landlord,
furnish such information and evidence in Affidavit or other form required by
NJDEP without unreasonable delay.


 


D.                                     Tenant shall
commence its ISRA submission in anticipation of the end of its Lease Term at
least six (6) months prior to the expiration of the Term.


 


42.                                 Headings and Terms. The title and headings and the
Table of Contents of this Lease are for convenience and reference only and
shall not in any way be utilized to construe or interpret the agreement of the
parties as otherwise set forth herein. The term “Landlord” and the term
“Tenant” as used herein shall mean, where appropriate, all persons acting by or
on behalf of the respective parties, except as to any required approvals,
consents or amendments, modifications or supplements hereunder when such terms
shall only mean the parties originally named on the first page of this Lease as
Landlord and Tenant, respectively, and their agents so authorized in writing.


 


43.                                 Performance of Landlord’s
Obligations to Mortgagee. Tenant shall accept performance of any of
Landlord’s obligations hereunder by any mortgagee.


 


44.                                 Applicable Law. This Lease and the rights and
obligations of the parties hereunder shall be construed in accordance with the
internal laws of the State of New Jersey applicable to leases made and to be
performed in the State of New Jersey without regard to principles of conflict
of law.


 


45.                                 No Representation or Warranty. The
authorization of the Permitted Use of the Leased Premises for the purposes set
forth herein does not constitute a representation or warranty by Landlord that
any particular use of the Leased Premises is now or shall continue to be
permitted under applicable laws or regulations.


 


31

















 


46.                                 Construction of Lease.


 


A.                                    This Lease shall be
construed without regard to any presumption or other rule requiring
construction against the party causing this Lease to be drafted.


 


B.                                      Words and phrases
used in the singular shall be deemed to include the plural and vice versa, and
nouns and pronouns used in any particular gender shall be deemed to include any
other gender.


 


C.                                      The rule of
“ejusdem generis” shall not be applicable to limit a general statement
following or referable to an enumeration of specific matters to matters similar
to the matters specifically mentioned.


 


47.                                 Delivery of Possession.


 


Delivery of possession of the Leased Premises specifically and
expressly is contingent upon the present tenant, if any, vacating the Leased
Premises and delivering peaceful possession to Landlord.


 


48.                                 Parking.


 


Landlord and Tenant agree that there presently are thirteen (13)
parking spaces available for Tenant’s use at the parking garages/decks located
on Hulfish Street and Chambers Street. Tenant may contract directly with the applicable
parking authority for obtaining parking permits for Tenant’s use and Tenant
shall pay the cost thereof directly to the respective parking authority, which
cost is presently $140.00 per month per space. Landlord makes no representation
or guarantee as to the continuing availability or number of parking spaces.


 


49.                                 Landlord’s Contribution.


 


Landlord shall contribute to Tenant the total sum of $50,340.00
constituting Landlord’s contribution. $25,000.00 of Landlord’s contribution
shall be paid to Tenant upon presentation of a valid Certificate of Occupancy
and the remaining $25,340.00 shall be credited equally to Tenant’s first three
(3) monthly installments of Annual Fixed Rent, upon Landlord’s receipt of the
documents set forth below and specifically and expressly subject to the
following conditions:


 


A.                                    Tenant furnishing
Landlord with adequate documentary proof that improvements, in, an amount equal
to at least $25,000.00, have been installed at the Premises;


 


B.                                      Tenant remaining
in actual occupancy of the Leased Premises;


 


C.                                      Tenant being
current and not in default of any of the terms, covenants, conditions and
provisions of the within Lease Agreement at all times and said Lease Agreement
is in full force and effect; and


 


D.                                     Tenant providing
Landlord with completed and executed contractor’s/subcontractor’s final
waiver(s) of lien.


 


32

















 


50.                                 Right of First Offer.


 


A.                                    Tenant shall be
granted a one-time right of first offer for approximately 2000 square feet
(“Offer Space”) presently occupied by Conopco, Inc., doing business as Unipath
Diagnostics Company, upon the same terms and conditions of the within Lease
Agreement and Schedules, except as set forth below.


 


B.                                      Said right of
first offer shall be granted provided (i) Tenant is in actual occupancy of the
Leased Premises; (ii) the Lease is in full force and effect; (iii) Tenant is
not in default of any monetary or non-monetary terms, covenants, conditions and
provisions of this Lease Agreement both at the time such right of first offer
may be exercised and at the commencement of the term for said offered space;
and (iv) Tenant shall execute and deliver to Landlord a written exercise of the
within right of first offer which must be delivered within fifteen (15)
calendar days of Landlord’s notice of the availability of the offered space,
time specifically and expressly being made of the essence for said delivery to
Landlord of the written exercise, and Tenant must execute an Addendum
reflecting the foregoing within seven (7) calendar days of the Landlord’s
attorney’s delivery of the Addendum to Tenant, time specifically and expressly
being made of the essence for such execution, together with such additional
Security Deposit as determined by Landlord.


 


C.                                      Tenant’s failure
to fully and completely comply with the foregoing shall render said right of
first offer null and void and of no force and effect and said right of first
offer shall be deemed waived. Furthermore, Tenant’s right of first offer
specifically and expressly is subject and subordinate to any present tenant’s
rights to the offered space as provided for in any written lease, including,
but not limited to, any options to renew, expansions, right of first refusal,
and the like.


 


51.                                 Early Termination.


 


Tenant shall have a one-time right to exercise a termination of the
within Lease Agreement upon the expiration of the thirty-sixth (36(1)/2)month
of the Term. Such termination shall be specifically and expressly subject to:


 


A.                                    Tenant providing
Landlord with written notice of its exercise of early termination, which notice
must be provided between the twenty-ninth (29th) and thirty-first
(31St) months of the Term, time specifically and expressly hereby
being made of the essence for Landlord’s receipt of said notice;


 


B.                                      Tenant shall not
be in default of this Lease both at the time of notice of early termination and
on the early termination date;


 


C.                                      In the event
Tenant terminates the within Lease Agreement, as aforesaid, Tenant shall
reimburse Landlord, in a lump-sum payment equal to five (5) months Rent
($81,770.85), constituting an early termination penalty due within thirty (30)
days of delivery to Landlord of the written notice of termination; and


 


D.                                     Tenant shall
thereafter vacate the Premises and deliver peaceful possession to Landlord at
the expiration of the thirty (36th) month of the Term.


 


33

















 


52.                                 Submission of Lease to Tenant.


 


THE SUBMISSION BY LANDLORD TO TENANT OF THIS LEASE SHALL HAVE NO
BINDING FORCE OR EFFECT, SHALL NOT CONSTITUTE AN OPTION FOR THE LEASING OF THE
LEASED PREMISES, NOR CONE’ ER ANY RIGHTS OR IMPOSE ANY OBLIGATIONS UPON EITHER
PARTY UNTIL THE EXECUTION THEREOF BY LANDLORD AND THE DELIVERY OF AN EXECUTED
ORIGINAL COPY THEREOF TO TENANT OR ITS REPRESENTATIVES.


 


IN WITNESS WHEREOF, the parties hereto intending to be legally bound
hereby have executed this Lease as of the day and year first above written.


 


	
  Witnessed/Attested

  	
  PSN PARTNERS, L.P.,

  
	
   

  	
  a New Jersey Limited

  
	
   

  	
  Partnership, Landlord

  
	
   

  	
  By: G.A. PROPERTIES, INC.

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  /s/ Peter Rudy

  	
   

  
	
   

  	
   

  	
  Peter N. Rudy,

  
	
   

  	
   

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HEARTLAND PAYMENT SYSTEMS,

  
	
   

  	
  INC., a Delaware Corporation, Tenant

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  /s/ Martin Uhle

  	
   

  
	
  (Secretary)

  	
   

  	
  Martin J. Uhle,

  
	
   

  	
   

  	
  President

  
					



 


(CORPORATE SEAL)


 


34

















 


SCHEDULE A

LEASED PREMISES


 


35

















 


SCHEDULE A-1


 


ANNUAL FIXED RENT


 


	
  Lease Year

  	
   

  	
  Rate/SF

  	
   

  	
  Annual
  Rent

  	
   

  	
  Monthly
  Rent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  First

  	
   

  	
  $

  	
  37.00

  	
   

  	
  $

  	
  185,000.00

  	
   

  	
  $

  	
  15,416.67

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Second

  	
   

  	
  $

  	
  38.11

  	
   

  	
  $

  	
  190,550.00

  	
   

  	
  $

  	
  15,879.17

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Third

  	
   

  	
  $

  	
  39.25

  	
   

  	
  $

  	
  196,250.00

  	
   

  	
  $

  	
  16,354.17

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fourth

  	
   

  	
  $

  	
  40.43

  	
   

  	
  $

  	
  202,150.00

  	
   

  	
  $

  	
  16,845.33

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fifth

  	
   

  	
  $

  	
  41.64

  	
   

  	
  $

  	
  208,200.00

  	
   

  	
  $

  	
  17,350.00

  	
   

  



 


36

















 


SCHEDULE A-2


 


PALMER SQUARE SOUTH AREA


 


37

















 


SCHEDULE B


 


DESCRIPTION OF LANDLORD’S WORK


 


The period of time during which Landlord is prevented from performing
any act required to be performed under this Lease, including, but no limited to
Schedule B, if any, by reason of fire, catastrophe, strikes, lockouts,
civil commotion, acts of God or the public enemy, government prohibitions or
preemptions, embargoes, inability to obtain material or labor by reason of
governmental regulations or prohibitions, the act or default of some other
party, or other events beyond the reasonable control of Landlord shall be added
to the time for performance of such act.


 


38

















 


SCHEDULE B-1


 


DESCRIPTION OF TENANT’S WORK


 


Excepting as may be set forth on Schedule B, Tenant accepts the
Premises in an “AS IS” condition at the commencement of the Term of this Lease
and Landlord shall not be required to make any changes, install any
improvements, obtain any occupancy permits, or prepare the Premises in any way
for occupancy in accordance with the terms of this Lease. The Premises shall be
provided “broom clean”. All Tenant Improvements shall be at the Tenant’s sole
expense. Tenant shall submit to Landlord detailed plans and specifications for
its prior approval outlining all improvements which constitute Tenant
Improvements. Landlord shall give its approval, or disapproval, within ten (10)
days of the submission of said complete plans and specifications.


 


39

















 


SCHEDULE C


 


FORM OF ESTOPPEL CERTIFICATE


 


LANDLORD:


 


TENANT:


 


PREMISES:


 


LEASE DATED:


 


TENANT’S NOTICE ADDRESS:


 


The undersigned, Tenant, hereby certifies
to                                     (hereinafter
“                              “)
that:


 


1.                                       Tenant has
accepted possession and is in occupancy of the Premises described above. The
Lease Term commenced on                    ,
2002. The termination date of the Lease Term, excluding renewals and
extensions,
is                    .


 


2.                                       Any improvements
required by the terms of the Lease to be made by Landlord have been completed
to the satisfaction of Tenant in all respects, and Landlord has fulfilled all
of its duties under the Lease.


 


3.                                       The Lease has
not been assigned, modified, supplemented or amended in any way. The Lease
constitutes the entire agreement between the parties, and there are no other
agreements, oral or written, between Landlord and Tenant concerning the
Premises. A true and complete copy of the Lease is attached hereto as Exhibit
A.


 


4.                                       The Lease is
valid and in full force and effect, and, to the best of Tenant’s knowledge,
neither Landlord nor Tenant is in default thereunder. Tenant has no defense,
set-off or counterclaim against Landlord arising out of the Lease or in any way
relating thereto, or arising out of any other transaction between Tenant and
Landlord, and no event has occurred and no condition exists, which, with the
giving of notice or the passage of time, or both, will constitute a default
under the Lease.


 


5.                                       No Rental or
other sum payable under the Lease has been paid in advance, excepting for the
Security Deposit in the amount of
$                 .


 


6.                                       The minimum
monthly rental presently payable under the Lease is
$              and
has been paid
through                     .


 


7.                                       The Tenant has
received no notice of a prior assignment, hypothecation or pledge of the Lease
or the rents, income, deposits or profits arising thereunder.


 


8.                                       Tenant hereby
acknowledges and agrees that
if                                shall
succeed to the interest of Landlord under the
Lease,                     shall
assume (only while owner of and in possession or control of the building of
which the


 


40

















 


Premises is a part) and perform all of Landlord’s obligations under the
Lease, but shall not be (a) liable for any act or omission of any prior landlord
(including the present Landlord); (b) liable for the return of any Security
Deposit; (c) subject to any off-set or defense which Tenant may have against
any such prior landlord; (d) bound by and Rental or Additional Rental Tenant
may have paid for more than the current month to any prior landlord, including
the present Landlord; or (e) bound by any assignment, surrender, termination,
cancellation, waiver, release, amendment or modification of the Lease made
without the express consent of                       .


 


9.                                       Tenant shall
give                                       prompt
written notice of any default of Landlord under the Lease, if such default
entitles Tenant, under law or otherwise, to terminate the Lease, reduce Rental
or credit or off-set any amount against future rents and shall
give                                       reasonable
time (but in no event less than ninety (90) days after receipt of such notice)
to cure or commence curing such default prior to exercising (and as a condition
precedent to its right to exercise) any right Tenant may have to terminate the
Lease or to reduce Rental or credit or offset any amounts against the Rental.
Tenant shall give written notice to any successor in interest
of                                       ,
any purchaser at a foreclosure sale under the mortgage, any transferee who
acquired the property by deed in lieu of foreclosure or any successor or assign
thereof. Tenant acknowledges and agrees that
neither                                       nor
any such successor, purchaser or transferee shall have any obligation to
respond to any such notice or take any action as a result thereof.


 


10.                                 All notices and other
communications from Tenant to shall be delivered or mailed by registered mail,
postage prepaid, return receipt requested, addressed
to                         at                         or
such other address
as                               ,
any successor, purchaser or transferee shall furnish to Tenant in writing.


 


11.                                 Tenant has no option
or right to purchase the Premises, or any part thereof.


 


12.                                 This Estoppel
Certificate is being executed and delivered by Tenant to
induce                               to
make a loan to Landlord, which loan is to be secured in part by an Assignment
to                               of
Landlord’s interest in the Lease and all rents, income, deposits and profits
arising thereunder, and with the intent and understanding that the above
statements will be relied upon
by                               


 


Dated:


 


41

















 


SCHEDULE F


 


CERTIFICATION OF TENANT


 


Tenant hereby warrants and certifies that:


 


A.                                   (If a corporation)
the following constitutes the names and addresses of all corporate officers of
Tenant:


 


	
  NAME

  	
   

  	
  ADDRESS

  



 


B                                        (If a
corporation) the following constitutes the names and addresses of all corporate
directors of Tenant:


 


	
  NAME

  	
   

  	
  ADDRESS

  



 


C.                                     (If a corporation)
the following constitutes the names and addresses of all shareholders of Tenant
together with a listing of the respective shares held by or on behalf of each
shareholder:


 


	
  NAME

  	
   

  	
  ADDRESS

  	
   

  	
  NO. OF SHARES

  



 


D.                                    (If a corporation)
the following constitutes the name and address of the Registered Agent of
Tenant:


 


	
  NAME

  	
   

  	
  ADDRESS

  



 


E.                                      (If a
corporation) the attached constitutes the Certificate of Incorporation of
Tenant, together with any amendments thereto.


 


F.                                      (If a
partnership) the following constitutes the names and addresses of all partners
(general and limited) of Tenant, together with a listing of each partner’s
interest:


 


	
  NAME

  	
   

  	
  ADDRESS

  	
   

  	
  INTEREST

  



 


G.                                     (If a partnership)
the attached constitutes the Partnership Agreement or Certificate of Limited
Partnership of Tenant.


 


H.                                    (If a joint
venture, limited liability company, or other entity) the following constitutes
the names and addresses of all persons possessing any ownership interest in
Tenant, together with the amount of each interest in Tenant:


 


	
  NAME

  	
   

  	
  ADDRESS

  	
   

  	
  INTEREST

  



 


42

















 


I.                                         Tenant shall
advise and notify Landlord immediately, in writing, upon any change whatsoever
in the above ownership interests setting forth all facts and particulars
regarding all such changes; and


 


J.                                        The within
Certification is duly authorized by corporate resolution, or partnership
agreement or other agreement between the parties comprising the Tenant
(whichever is applicable).


 


WITNESS/ATTEST:


 


 


(CORPORATE SEAL)


 


43

















 


SCHEDULE G


 


CLEANING SERVICES


 


1.                                       All cleaning
shall be between the hours of 6:00 P.M. and 10:00 P.M. Monday through Friday,
except for the following holidays: New Year’s Day, Memorial Day, Fourth of
July, Labor Day, Thanksgiving Day and Christmas Day. No cleaning shall be done
on Saturday or Sunday.


 


2.                                       The quality of
the cleaning shall be the same as the services rendered in other Class “A”
office buildings.


 


3.                                       General Cleaning


 


Nightly:


 


(a)                                  Vacuum all carpets
and rugs, moving light furniture other than desks, file cabinets, etc.;


 


(b)                                 Empty and clean all
wastepaper baskets, ash trays, receptacles, etc.;


 


(c)                                  Remove wastepaper and
waste materials;


 


(d)                                 Dust and wipe clean
all furniture, fixtures and window sills;


 


(e)                                  Clean all glass
furniture tops;


 


(f)                                    Dust all chair
rails, trim, etc.;


 


(g)                                 Dust all baseboards.


 


Weekly:


 


(a)                                  Clean all interior
metal;


 


(b)                                 Dust all window
louvres and all ventilating louvres within reach;


 


(c)                                  Remove all finger
marks from metal partitions and other surfaces.


 


Three Months:


 


All high dusting which shall include:


 


(a)                                  All pictures, frames,
charts, graphs and similar wall hangings not reached in nightly cleaning;


 


(b)                                 All vertical surfaces,
such as walls, partitions, ventilating louvres and other surfaces not reached
in nightly cleaning;


 


(c)                                  All lighting fixtures
(exterior only);


 


(d)                                 All window frames.


 


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Four Months:


 


(a)                                  The interior and
exterior of all windows shall be washed;


 


(b)                                 The space between the
two panes of glass and the venetian blinds contained therein shall be unsealed
and cleaned only when necessary in the opinion the Landlord.


 


4.                                       The Tenant shall
be charged for cleaning services in the areas of the Leased Premises used for
special purposes requiring greater and more difficult cleaning work than office
areas (including, but not limited to, data processing areas, exhibit areas,
energy dispatching areas, mail rooms, private toilets, etc.)


 


45

















 


SCHEDULE H


 


RULES AND REGULATIONS


 


1.                                       Definitions


 


Wherever in these Rules and Regulations the word “Tenant” is used, it
shall be taken to apply to and include the Tenant and its agents, employees,
invitees, licensees, subtenants, assignees, if any, and contractors, and is to
be deemed of such number and gender as the circumstances require. The word “room”
is to be taken to include the space covered by the Lease. The word “Landlord”
shall be taken to include the employees and agents of Landlord.


 


2.                                       Common
Areas


 


The streets, sidewalks, entrances, halls, passages, elevators,
stairways and other common areas provided by Landlord shall not be obstructed
by Tenant, or used by it for any other purpose than for ingress and egress.


 


3.                                       Public
Entrance


 


Landlord reserves the right to exclude the general public from the
Building upon such days and at such hours as in Landlord’s judgment shall be
for the best interest of the Building and its tenants.


 


4.                                       General
Prohibitions


 


In order to insure proper use and care of the Premises, Tenant shall
not:


 


(a)                                  Allow any sign,
advertisement or notice to be fixed to the Building, inside or outside, without
Landlord’s written consent.


 


(b)                                 Make improper noises
or disturbances of any kind or emit objectionable odors that shall disturb or
annoy any other tenants or occupants of the Building or do or permit anything
to be done which shall interfere with the rights, comfort or convenience of
other tenants or occupants of the Building.


 


(c)                                  Mark or defile
elevators, water-closets, toilet rooms, walls, windows, doors or any other part
of the Building.


 


(d)                                 Use toilet rooms,
water-closets and other water apparatus for any purposes other than those for
which they were constructed.


 


(e)                                  Place anything on the
outside of the Building, including roof setbacks, window ledges and other
projections.


 


(f)                                    Cover or obstruct
any window, except Tenant shall be permitted standard window coverings in the
form of horizontal miniblinds.


 


(g)                                 Fasten any article,
drill holes, drive nails or screws into the floors, woodwork, window mullions,
or partitions; nor shall the same be painted, papered or otherwise covered or
in any way marked or broken without written consent of Landlord.


 


(h)                                 Interfere with the
heating or cooling apparatus.


 


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(i)                                     Place trash or
waste in hallways or other common areas of the Building except those areas
specifically designated by Landlord.


 


(j)                                     Leave rooms
without locking doors, stopping all office machines and extinguishing all
lights.


 


(k)                                  Use or place any
curtains, blinds, drapes, coverings or signs over any exterior windows or upon
the window surfaces as would be visible from the outside of the Building unless
said are compatible with the Building standards.


 


(1)                                  Use any electric
heating device without written permission of Landlord.


 


(m)                               Install call boxes or
any kind of wire in or on the Building without Landlord’s written permission
and direction.


 


(n)                                 Manufacture any
commodity, or prepare or dispense any foods or beverages, whether by vending or
dispensing machines or otherwise, or alcoholic beverages, tobacco, drugs,
flowers, or other commodities or articles without written consent of Landlord.


 


(o)                                 Secure duplicate keys
for rooms, except from Landlord, or change the locks of any doors to or in the
Leased Premises.


 


(p)                                 Place door mats in
public corridors without the written consent of Landlord.


 


(q)                                 Bring into or keep in
the Building any flammable, combustible, explosive or other dangerous fluid,
chemical material or substance.


 


(r)                                    Bar entrance to the
Leased Premises by a sliding bolt or other device which renders access by keys
difficult or impossible.


 


(s)                                  Keep any animals in
the Leased Premises.


 


5.                                       Publicity


 


Tenant shall not use the name of the Building in any way in connection
with its business except as to the address thereof. Landlord shall also have
the right to prohibit any advertising by Tenant, which, in Landlord’s opinion,
tends to impair the reputation of the Building or its desirability as a
building for offices; and upon written notice from Landlord, Tenant shall
refrain from or discontinue such advertising.


 


6.                                       Business
Machines


 


Business machines and mechanical equipment which cause vibration,
noise, cold or heat that may be transmitted to Building structure or to any
leased space outside the Leased Premises shall be placed and maintained by
Tenant, at its sole cost and expense, in settings or cork, rubber or spring
type vibration eliminators sufficient to absorb and prevent such vibration,
noise, cold or heat.


 


7.                                       Movement
of Equipment


 


Landlord reserves the right to designate the time when freight, small
office equipment, furniture, sofas and other like articles may be brought into,
moved, or removed from the Building or rooms, and to designate the location for
temporary disposition of such items. In no event shall any of the aforesaid
items be taken from Tenant’s space for the purpose of removing same from the


 


47

















 


Building without the express written consent of both Landlord and
Tenant except in case of Tenant’s default under the within Lease.


 


8.                                       Rights
Reserved to Landlord


 


A.                                   Without abatement or
diminution in Rent, Landlord reserves and shall have the following additional
rights:


 


(i)                                     To change the name
and/or street address of the Building and the arrangement and/or location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilet
or other public parts of the Building.


 


(ii)                                  To install and
maintain a sign or signs on the exterior of the Building.


 


(iii)                               To have access for
Landlord and other tenants of the Building to any mail chutes, if any, located
on the Leased Premises according to the rules of the United States Post Office.


 


(iv)                              To make, either
voluntarily or pursuant to governmental requirement, at Landlord’s own expense,
repairs, alterations or improvements in or to the Building, or any part
thereof, and during alterations, may close entrances, doors, windows,
corridors, elevators or other facilities, provided that such acts shall not
unreasonably interfere with Tenant’s use and occupancy of the Premises as a
whole.


 


(v)                                 To erect, use and
maintain pipes and conduits in and through the Leased Premises.


 


(vi)                              During the last six (6)
months of the Lease Term, or any part thereof, if during or prior to that time
the Tenant vacates the Leased Premises, to decorate, remodel, repair, alter or
otherwise prepare the Leased Premises for reoccupancy.


 


(vii)                           To constantly have pass keys
to the Leased Premises.


 


(viii)                        To grant to anyone the
exclusive right to conduct any particular business or undertaking in the
Building.


 


(ix)                                To exhibit the Leased
Premises to others and to display “For Rent” signs on the Leased Premises upon
advance notice to Tenant.


 


(x)                                   To take any and all
measures, including inspections, repairs, alterations, additions and
improvements to the Leased Premises or to the Building, as may be necessary or
desirable in the operation of the Building.


 


B.                                     Landlord may enter
upon the Leased Premises and may exercise any or all of the foregoing rights
hereby reserved without being deemed guilty of an eviction or disturbance of
Tenant’s use or possession and without being liable in any manner to the
Tenant.


 


48

















 


9.                                       Regulation
Changes


 


Landlord shall have the right to make such other and further reasonable
Rules and Regulations as, in the judgment of Landlord, may from time to time be
needful for the safety, appearance, care and cleanliness of the building and
for the preservation of good order therein. Landlord shall not be responsible
to Tenant for any violation of Rules and Regulations by any other tenant.


 


49