1
EXHIBIT 10.8
LEASE AGREEMENT
BETWEEN
SHAV ASSOCIATES
AS LANDLORD
AND
PARADYNE CORPORATION,
AS TENANT
PREMISES:
000 XXXXXX XXXXX
XXX XXXX, XXX XXXXXX
0XX XXXXX
0XX XXXXX
DATED: OCTOBER 8, 1996
2
TABLE OF CONTENTS
ARTICLE PAGE
------- ----
1 Demised Premises, Term, Rent......................................................1
2 Use...............................................................................2
3 Preparation Of The Demised Premises...............................................3
4 Occupancy Upon Completion Of Tenant's Work........................................4
5 Additional Rent...................................................................5
6 Subordination, Notice To Mortgagees..............................................10
7 Quiet Enjoyment..................................................................11
8 Assignment, Mortgaging, Subletting...............................................11
9 Compliance With Laws And Requirements Of Public Authorities......................13
10 Insurance........................................................................14
11 Rules And Regulation.............................................................16
12 Tenant's Changes.................................................................17
13 Tenant's Property................................................................19
14 Repairs And Maintenance..........................................................21
15 Electricity......................................................................22
16 Heating, Ventilation And Air-Conditioning........................................24
17 Landlord's Other Services........................................................24
18 Access, Changes In Building Facilities, Name.....................................27
19 Notice Of Accidents..............................................................28
20 Non-Liability And Indemnification................................................28
21 Destruction Or Damage............................................................29
22 Eminent Domain...................................................................30
i
3
23 Surrender........................................................................32
24 Conditions Of Ligation...........................................................33
25 Re-Entry By Landlord.............................................................34
26 Damages..........................................................................35
27 Waivers..........................................................................37
28 No Other Waivers Or Modifications................................................38
29 Curing Tenant's Defaults.........................................................38
30 Broker...........................................................................39
31 Notices..........................................................................39
32 Estoppel Certificate.............................................................40
33 Arbitration......................................................................40
34 No Other Representations, Construction, Governing Law............................40
35 Security.........................................................................41
36 Parties Bound....................................................................42
37 Consents.........................................................................42
38 Mortgage Financing Tenant Cooperation............................................43
39 Environmental Compliance.........................................................43
40 Holding Over.....................................................................44
41 Certain Definitions And Constructions............................................45
42 Relocation Of Tenant.............................................................45
43 Option To Renew..................................................................45
44 Right Of First Refusal...........................................................46
45 Satellite Dish...................................................................47
46 Waiver Of Distraint..............................................................49
ii
4
EXHIBIT A - Description of Land
EXHIBIT B - Floor Plan
EXHIBIT C - HVAC Specifications
EXHIBIT D - Cleaning and Maintenance Specifications
EXHIBIT E - Rules and Regulations
EXHIBIT F - Definitions
EXHIBIT G - Non-Disturbance Agreement
EXHIBIT H - Reserved Parking
iii
5
LEASE, dated October 8, 1996, between SHAV ASSOCIATES, a New
Jersey General Partnership, c/o Alfieri Property Management, having its
principal office located at 000 Xxxxxxxx Xxxxxx, P.O. Box 2911, Edison, New
Jersey 08818-2911, ("Landlord"), and PARADYNE CORPORATION, a Delaware
corporation, having its principal office located at 0000 000xx Xxxxxx Xxxxx,
X.X. Xxx 0000, Xxxxx, Xxxxxxx 00000, ("Tenant").
WITNESSETH:
ARTICLE 1
DEMISED PREMISES, TERM, RENT
1.1 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 000
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxxxx, ("Building") on the parcel of land more
particularly described in Exhibit A ("Land"), for the term hereinafter stated,
for the rents hereinafter reserved and upon and subject to the conditions
(including limitations, restrictions and reservations) and covenants hereinafter
provided. Each party hereby expressly covenants and agrees to observe and
perform all of the conditions and covenants herein contained on its part to be
observed and performed.
1.2 The premises hereby leased to Tenant is the 1st and 2nd floors of
the Building, as shown on the floor plans annexed hereto as Exhibit B, having a
rentable area of 50,000 square feet measured outside wall to outside wall,
together with Tenant's share of the common area. Said premises, together with
all fixtures and equipment which at the commencement, or during the term of this
Lease are thereto attached (except items not deemed to be included therein and
removable by Tenant as provided in Article 13) constitute the "Demised
Premises." The Demised Premises shall be limited to the space that is located
from the ceiling tiles to the top of the floor slab except that any Tenant
supplied equipment placed above the ceiling tiles shall be considered part of
the Demised Premises.
1.3 The term of this Lease, for which the Demised Premises are hereby
leased, shall be sixty six (66) months and shall commence on November 1, 1996
("Commencement Date") and shall end at noon on April 30, 2002.
1.4 The rents reserved under this Lease, for the term thereof, shall be
and consist of:
PERIOD FIXED RENT ANNUAL RENT MONTHLY RENT
------ ---------- ----------- -------------
Months 1 through 60 $ 16.25 $812,500.00 $ 67,708.33
Months 61 through 66 $ 19.00 $475,000.00 (6 mos.) $ 79,166.67
Fixed rent is calculated on 50,000 sq. ft. of rentable area and shall be payable
in equal monthly installments in advance on the first day of each and every
calendar month during the term of this Lease, (except Tenant shall pay, upon
execution and delivery of this Lease by Tenant, the sum of
6
$67,708.33 to be applied against the first monthly installment or installments
of fixed rent becoming due under this Lease) and
(b) Additional rent consisting of all such other sums of money as
shall become due from and payable by Tenant to Landlord hereunder (for default
in payment of which Landlord shall have the same remedies as for a default in
payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
at such place, as Landlord may designate by written notice to Tenant, in lawful
money of the United States of America.
1.5 Tenant shall pay the fixed rent and additional rent herein reserved
promptly as and when the same shall become due and payable, without demand
therefor and without any abatement, deduction or setoff whatsoever except as
expressly provided in this Lease.
1.6 If the Commencement Date occurs on a day other than the first day
of a calendar month, the fixed rent for such calendar month shall be prorated
and the balance of the first month's fixed rent theretofore paid shall be
credited against the next monthly installment of fixed rent.
1.7 Late payments of any payment of rent, including monthly rent, which
is not received within five (5) days after it is due, will be subject to a late
charge equal to three percent (3%) of the unpaid payment. This amount is in
compensation of Landlord's additional cost of processing late payments. In
addition, any rent which is not paid when due, including monthly rent, will
accrue interest at a late rate charge of First Union Prime Rate plus two percent
(2%) per annum, as said rate is reasonably determined by Landlord from published
reports, (but in no event in an amount in excess of the maximum rate allowed by
applicable law) from the date on which it was due until the date on which it is
paid in full with accrued interest. If Tenant is deemed to be in default beyond
the lapse of any applicable cure or grace periods of the Lease for failure to
pay rent and Landlord has commenced any legal action, in addition to the late
charges and interest set forth above, Tenant shall be charged with all attorney
fees in connection with the collection of all sums due Landlord. Notwithstanding
the foregoing, provided Tenant is not in default of this Lease, Tenant shall
have one (1) grace period for each year of the Lease term where Tenant will not
be subject to late charge or interest for any late payment of rent as set forth
above.
ARTICLE 2
USE
2.1 Tenant shall use and occupy the Demised Premises for executive and
general offices for the transaction of Tenant's business and for no other
purpose. Notwithstanding the foregoing, Tenant may use the Demised Premises as
lab space provided Tenant's use as lab space does not put undue stress on the
Building's service systems. Any additional portion of the Demised Premises used
for lab space beyond that lab space provided for
2
7
in the initial build-out shall be considered a Tenant Changes and must be
approved by Landlord in writing pursuant to Article 12.
2.2 The use of the Demised Premises for the purposes specified in
Section 2.1 shall not include, and Tenant shall not use or permit the use of the
Demised Premises or any part thereof, for:
(a) A school of any kind other than for the training of Tenant's
employees or customers, incidental to Tenant's normal business operations;
(b) An employment agency, or
(c) An office for any governmental or quasi governmental bureau,
department, agency, foreign or domestic, including any autonomous governmental
corporation or diplomatic or trade mission.
(d) Any telemarketing activities or other direct selling
activities; or
(e) Any use, including executive and general office use, which
results in a density of a population of more than one person for every 250
square feet.
2.3 If any governmental license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof, and if failure to secure
such license or permit would in any way affect Landlord, Tenant, at its expense,
shall submit the same to inspection by Landlord. Tenant shall at all times
comply with the terms and conditions of each such license or permit.
2.4 Tenant shall not at any time use or occupy, or do or permit
anything to be done in the Demised Premises, in violation of the Certificate of
Occupancy (or other similar municipal ordinance) governing the use and
occupation of the Demised Premises or for the Building.
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.1 Tenant accepts the Demised Premises "AS IS" subject, however, to
latent defects. Landlord represents that as of the Commencement Date of this
Lease, the Building shall be in compliance with governmental requirements with
the exception of any Tenant's Work as defined below. The Demised Premises shall
be completed and prepared for Tenant's occupancy pursuant to a turn-key
installation in accordance with and under the terms and conditions of plans and
specifications prepared by Tenant as reasonably approved by Landlord ("Tenant's
Work"). The cost of all Tenant's Work subject to Section 3.2 hereof, shall be
borne by Tenant. Tenant represents that all plans and specifications in
connection with Tenant's Work shall be prepared by Tenant's architect which
shall comply with all applicable laws, rules and regulations. Landlord and its
affiliate, Xxxxxxx Co., Inc. ("Xxxxxxx") shall serve as general contractor and
shall competitively bid the subcontractor portion of Tenant's Work using three
3
8
bona fide bids whenever possible to arrive at a fixed price lump sum contact
(the "Contract") between Tenant and Xxxxxxx. Landlord and Tenant acknowledge
that as of the date hereof, Xxxxxxx and Tenant have not entered into the
Contract. Until Xxxxxxx and Tenant enter into the Contract, Xxxxxxx shall
proceed with the construction of Tenant's Work on a time and material basis with
ten percent (10%) overhead and ten percent (10%) profit. Landlord represents
that Xxxxxxx is in the bidding process and shall present Tenant with the
proposed Contract on September 17, 1996. Landlord represents that Xxxxxxx and
Tenant represents that Tenant shall diligently proceed to agree upon the terms
and conditions and shall execute the Contract as soon as practicable. In the
event Xxxxxxx and Tenant are unable to agree upon all or some of the terms and
conditions and execute the Contract by September 21, 1996, Xxxxxxx shall proceed
with the completion of Tenant's Work on a time and material basis with ten
percent (10%) overhead and ten percent (10%) profit for all or any portion of
the Tenant's Work not agreed upon in the Contract.
3.2 Notwithstanding the terms and conditions of Section 3.1, Landlord
agrees at its sole cost to modify the first floor lobby and elevator cabs to a
first class condition using Landlord's building standards for Tri-Parkway
Corporate Park, such work to be completed immediately following AT&T Corp.'s
occupancy of the third and fourth floors of the Building. Landlord shall also
remove the existing improvements in the cafeteria area so as to return the space
to office shell condition. Landlord shall contribute up to $30,000.00 of the
cost thereof and Tenant shall pay the balance if any.
3.3 Xxxxxxx shall not be deemed Tenant's contractor pursuant to any
provision of this Lease which makes reference to Tenant or any of its employees,
agents or contractors.
ARTICLE 4
OCCUPANCY UPON COMPLETION OF TENANT'S WORK
4.1 The Demised Premises shall be ready for Tenant's occupancy on the
earliest date on which all of the following conditions have been met:
(a) A Certificate of Occupancy (temporary or final) has been issued
by the applicable governmental authorities, permitting Tenant's use of the
Demised Premises for the purposes for which the same have been leased.
(b) The work contemplated in Section 3.1 shall have been
substantially completed, and same shall be so deemed notwithstanding the fact
that minor or insubstantial details of construction, mechanical adjustment, or
decoration or special finish work requested by Tenant, such as cabinetry remain
to be performed, the non-completion of which does not materially interfere with
Tenant's use of the Demised Premises.
(c) Reasonable means of access and facilities necessary to Tenant's
use and occupancy of the Demised Premises, including corridors, elevators and
stairways, and heating, ventilating, air conditioning, sanitary, water, and
electrical facilities, have been installed and are in reasonably good operating
order and available to Tenant.
4
9
4.2 If and when Tenant shall take actual possession of the Demised
Premises, it shall be conclusively presumed that the same were in satisfactory
condition (accept for latent defects) as of the date of such taking of
possession, unless within ninety (90) days after such date Tenant shall give
Landlord notice specifying the respects in which the Demised Premises were not
in satisfactory condition.
4.3 Landlord agrees that Tenant shall be entitled to install furniture
and equipment up to one week prior to the day the Demised Premises are ready for
Tenant's Occupancy and Landlord shall so advise Tenant when it shall be entitled
to commence such installation. Tenant agrees that it shall not interfere with
the work of Landlord or Xxxxxxx, Inc. in readying the Demised Premises for
occupancy.
4.4 Notwithstanding anything contained in the foregoing, and in
furtherance of Article 1, Landlord and Tenant agree that the Commencement Date
for the Demised Premises shall be November l, 1996 regardless of whether the
Demised Premises are ready for Tenant's occupancy.
ARTICLE 5
ADDITIONAL RENT
5.1 For the purpose of Sections 5.1 through 5.3.
(a) "Taxes" shall mean real estate taxes, special and extraordinary
assessments and governmental levies against the Land and Building of which the
Demised Premises (but excluding therefrom that portion of the real estate taxes
directly attributable to improvements made by other tenants in the Building
beyond Landlord's allowances) are a part provided, however, if at any time
during the term of this Lease the method of taxation prevailing at the date of
this Lease shall be altered so that in lieu of, or as an addition to, or as a
substitute for any or all of the above there shall be assessed, levied or
imposed (i) a tax, assessment, levy, imposition or charge based on the income or
rents received therefrom whether or not wholly or partially as a capital levy or
otherwise; or (ii) a tax, assessment, levy, imposition or charge measured by or
based in whole or in part upon all or any part of the Land and/or Building and
imposed upon Landlord; or (iii) a license fee measured by the rents; or (iv) any
other tax, assessment, levy, imposition, charge or license fee however described
or imposed, then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be included in the
definition of "Taxes." Tenant shall pay to Landlord directly that portion of any
real estate taxes directly attributable to improvements made by Tenant beyond
Landlord's allowances (hereinafter referred to as "Tenant's Direct Tax
Payments").
(b) "Base Taxes" shall mean the assessed valuation of the Land and
Building as finally determined following completion of construction and issuance
of an initial Certificate of Occupancy for any portion of the Building (or such
equivalent certification if Certificates of Occupancy are not to be used),
multiplied by the tax rate for the Tax Year 1997. Base Taxes shall be calculated
as if the Building were 100% assessed and 95% occupied.
5
10
(c) "Tax Year" shall mean each calendar year for which Taxes are
levied by any governmental authority.
(d) "Operational Year" shall mean each calendar year commencing
with calendar year 1998.
(e) "Tenant's Proportionate Share of Increase" shall mean 50%
multiplied by the increase in Taxes in any Operational Year in excess of the
Base Taxes. Tenant's Proportionate Share of Increase for the first Operational
Year shall be prorated to reflect the actual occupancy by Tenant for said
Operational Year.
(f) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase in Taxes for the projected Operational Year
divided by twelve (12) and payable monthly by Tenant to Landlord as additional
rent.
5.2 Commencing with the first Operational Year and thereafter, Tenant
shall pay to Landlord as additional rent for the then Operational Year, Tenant's
Projected Share of Increase in Taxes in equal monthly instruments.
5.3 After the expiration of each Operational Year, Landlord shall
furnish to Tenant a written statement of the Taxes incurred for such Operational
Year as well as Tenant's Proportionate Share of Increase, if any. If the
statement furnished by Landlord to Tenant pursuant to this Section at the end of
the then Operational Year shall indicate that Tenant's Projected Share of
Increase exceeded Tenant's Proportionate Share of Increase, Landlord shall
either forthwith pay the amount of excess directly to Tenant concurrently with
the statement or credit same against Tenant's next monthly installment of rent.
If such statement furnished by Landlord to Tenant shall indicate that the
Tenant's Proportionate Share of Increase exceeded Tenant's Projected Share of
Increase for the then Operational Year, Tenant shall forthwith pay the amount of
such excess to Landlord.
Commencing with the first Operational Year, Tenant shall pay to
Landlord in equal monthly installments together with its payment of fixed rent
one-twelfth (1/12) of Tenant's Direct Tax Payment.
5.4 As used in Sections 5.4 through 5.6:
(a) "Operating Expenses" shall mean any or all expenses incurred by
Landlord in connection with the operation of the Land and Building of which the
Demised Premises are a part, including all expenses incurred as a result of
Landlord's compliance with any of its obligations hereunder other than
Landlord's Work and such expenses shall include: (i) salaries, wages, medical,
surgical and general welfare benefits, (including group life insurance) and
pension payments of employees of Landlord engaged in the operation and
maintenance of the Building; (ii) social security, unemployment, and payroll
taxes, workers' compensation, disability coverage, uniforms, and dry cleaning
for the employees referred to in Subsection (i); (iii) the cost for the Building
and common areas of all charges for oil, gas, electricity (including, but not
limited to, fuel cost adjustments), steam, heat, ventilation, air-conditioning,
heating, and water including any taxes on any such utilities, but excluding from
Operating Expenses the Landlord's cost, including taxes thereon, of electric
energy other than
6
11
for heating and air-conditioning furnished to the Demised Premises (which
electric energy so furnished shall be paid for by Tenant pursuant to the
provisions of Article 15 hereof); (iv) the cost of all premiums and charges for
the following insurances rent, casualty, liability, fidelity and war risk (if
obtainable from the United States Government); (v) the cost of all building and
cleaning supplies for the common areas of the Building and charges for telephone
for the Building; (vi) the cost of all charges for management, (which shall not
exceed in any year four percent (4%) of gross revenues) window cleaning,
securing services, if any, and janitorial services, and any independent
contractor performing work included within the definition of operating expenses;
(vii) legal and accounting services and other professional fees and
disbursements incurred in connection with the operation and management of the
Land and Building (other than as related to new leases, enforcing Landlord's
rights under existing leases, or sales of the Building); (viii) general
maintenance of the Building and the cost of maintaining and replacing the
landscaping, (ix) maintenance of the common area; and (x) the cost of capital
expenditures, including the purchase of any item of capital equipment or the
leasing of capital equipment which have the effect of reducing the expenses
which would otherwise be included in Operating Expenses, which costs shall be
included in Operating Expenses for the Operational Year in which the costs are
incurred and subsequent Operational Years on a straight-line basis, to the
extent that such items are amortized over such period of time as Landlord
reasonably estimates, with an interest factor equal to the interest rate at the
time of Landlord's having made said expenditure.
If during all or part of the Base Year or any Operational Year,
Landlord shall not furnish any particular item(s) of work or service (which
would otherwise constitute an Operating Expense hereunder) to portions of the
Building due to the fact that (i) such portions are not occupied or leased; (ii)
such items of work or service is not required or desired by the tenant of such
portion; (iii) such tenant is itself obtaining and providing such item of work
or service; or (iv) for other reasons, then, for the purposes of computing
Operating Expenses, the amount for such item and for such period shall be deemed
to be increased by an amount equal to the additional costs and expenses which
would reasonably have been incurred during such period by Landlord if it had at
its own expense furnished such item of work or services to such portion of the
Building or such tenant.
Notwithstanding the foregoing, the following costs and expenses
shall not be included in Operating Expenses:
(1) Salaries or benefits for Landlord's executives above the
grade of building manager, and of any employee to the extent the employee's time
is not devoted to the Building;
(2) Amounts received by Landlord through proceeds of insurance
except to the extent they are compensation for sums previously included in
Operating Expenses hereunder;
(3) Cost of repairs or replacements incurred by reason of fire
or other casualty or condemnation to the extent Landlord is compared therefor;
(4) Advertising and promotional expenditures;
7
12
(5) Costs incurred in performing work or furnishing services
for any tenant (including Tenant), whether at such tenant's or Landlord's
expense, to the extent that such work or service is in excess of any work or
service that Landlord is obligated to furnish to tenant at Landlord's expense;
(6) Depreciation, except as provided above;
(7) Brokerage commissions;
(8) Taxes (as hereinbefore defined);
(9) The cost of electricity (for other than heating and
air-conditioning) furnished to the Demised Premises or any other space leased to
tenants as reasonably estimated by Landlord;
(10) Refinancing costs and mortgage interest and amortization
payments;
(11) Costs of improving, altering, constructing or
redecorating any space leased by tenants of the Building;
(12) Costs, expenses or expenditures relating to the duties,
liabilities or obligations of other tenants in the Building;
(13) Principle and interest payments on mortgage or deed of
trust;
(14) Legal and auditing expenses incurred in connection with
disputes or negotiations with tenants or potential tenants;
(15) Expenses or charges under warranties or guarantees to the
extent actually recovered by Landlord;
(16) Rent under a ground or prime lease;
(17) Costs, expenses or expenditures relating to the duties,
liabilities or obligations of other tenants in the Building;
(18) Costs incurred by Landlord arising out of its failure to
perform or breach of any of its covenants, agreements, representations,
warranties, guarantees or indemnities made under this Lease;
(19) Any amounts paid to a person, firm, corporation, or other
entity row to Landlord which is in excess of the amount charged by unaffiliated
parties for goods or services in comparable office space in the market;
(20) Any compensation paid to clerks, attendants or other
persons in commercial concessions or parking facility operated by Landlord; and
8
13
(21) Landlord's general corporate overhead and general
administrative expenses.
(b) "Operational Year" shall mean each calendar year commencing
with calendar year 1998.
(c) "Base Year" shall mean calendar year 1997 and for purposes of
Base Year expenses it shall be assumed that the Building is 100% occupied.
(d) "Tenant's Proportionate Share of Increase" shall mean 50%
multiplied by the increase in Operating Expenses for the Operational Year over
Operating Expenses for the Base Year. For purposes hereof, the Tenant's
Proportionate Share of Increase has been computed based upon a total square
footage of the Building equal to 100,000 square feet, and a total square footage
of the Demised Premises equal to 50,000 square feet. Landlord agrees that it
shall not include as part of Operating Expenses in any Operational Year any line
item that was not included in the Base Year Operating Expenses.
(e) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase for the projected Operational Year divided by
twelve (12) and payable monthly by Tenant to Landlord as additional rent.
5.5 Commencing with the first Operational Year after Landlord shall be
entitled to receive Tenant's Proportionate Share of Increase, Tenant shall pay
to Landlord as additional rent for the then Operational Year, Tenant's Projected
Share of Increase.
5.6 After the expiration of the first Operational Year and for each
Operational Year thereafter, Landlord shall furnish to Tenant a written detailed
statement of the Operating Expenses (certified to be true and correct by
Landlord) incurred for such Operational Year which statement shall set forth
Tenant's Proportionate Share of Increase, if any. If the statement furnished by
Landlord to Tenant, pursuant to this Section, at the end of the then Operational
Year shall indicate that Tenant's Projected Share of Increase exceeded Tenant's
Proportionate Share of Increase, Landlord shall either forthwith pay the amount
of excess directly to Tenant concurrently with the statement or credit same
against Tenant's next monthly installment of rent. If such statement furnished
by Landlord to Tenant hereunder shall indicate that the Tenant's Proportionate
Share of Increase exceeded Tenant's Projected Share of Increase for the then
Operational Year, Tenant shall forthwith pay the amount of such excess to
Landlord.
5.7 Every statement given by Landlord pursuant to Sections 5.3 and 5.6
shall be conclusive and binding upon Tenant unless (i) within ninety (90) days
after the receipt of such statement Tenant shall notify Landlord that it
disputes the correctness of the statement, specifying the particular respects in
which the statement is claimed to be incorrect; and (ii) if such dispute shall
not have been settled by agreement, shall submit the dispute to judicial
proceedings within one hundred and twenty (120) days after receipt of the
statement. Within such 90 day period Tenant shall have the right to review,
examine and audit Landlord's books and records for the applicable calendar year.
Tenant agrees that it and its representatives shall conduct a review with
complete confidentiality and shall enter into a reasonable confidentiality
agreement with landlord respecting the review, examination and audit. Pending
the
9
14
determination of such dispute by agreement or judicial proceedings as aforesaid,
Tenant shall, within thirty (30) days after receipt of such statement, pay
additional rent in accordance with Landlord's statement and such payment shall
be without prejudice to Tenant's position. If the dispute shall be determined in
Tenant's favor, Landlord shall forthwith pay Tenant the amount of Tenant's
overpayment of rents resulting from compliance with Landlord's statement. If
after judicial proceeding, it is determined that Landlord's Operating Statements
vary by more than 5%, then Landlord shall reimburse Tenant for Tenant's
reasonable costs for payment of an auditor or accountant. If the variance proves
less than 3% greater than Landlord's records, Tenant shall reimburse Landlord
for Landlord's reasonable costs for payment of an auditor or accountant.
Otherwise each party shall pay their respective costs.
ARTICLE 6
SUBORDINATION, NOTICE TO MORTGAGEES
6.1 So long as a satisfactory Nondisturbance Agreement has been
obtained on Tenant's behalf, this Lease, and all rights of Tenant hereunder are
and shall be subject and subordinate in all respects to all mortgages which may
now or hereafter affect the Land and/or the Building and/or any of such leases,
whether or not such mortgages shall also cover other lands and/or buildings, to
each and every advance made or hereafter to be made under such mortgages, and to
all renewals, modifications, replacements, and extensions of such mortgages and
spreaders and consolidations of such mortgages. This Section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver an
instrument that Landlord, or the holder of any such mortgage or any of their
respective successors in interest may reasonably request to evidence such
subordination. The mortgages to which this Lease is, at the time referred to,
subject and subordinate are hereinafter sometimes called "superior mortgages,"
and the holder of a superior mortgage or its successor in interest at the time
referred to is sometimes hereinafter called a "superior mortgagee."
6.2 Landlord shall make a good faith effort to obtain from the existing
or future Mortgagee, a Subordination, Non-Disturbance and Attornment Agreement
(the "Non-Disturbance Agreement") in favor of Tenant utilizing Mortgagee's
standard form. A sample Non-Disturbance Agreement form is attached as Exhibit G.
Landlord agrees, upon execution of this Lease, to promptly obtain Mortgagee's
approval to execute a Non-Disturbance Agreement. If within thirty (30) days or
agreed upon extended period from the execution of this Lease, Landlord is unable
to obtain such approval, then Tenant may, upon written notice to Landlord: (i)
waive its right to a Non-Disturbance Agreement or (ii) cancel this Lease. If
Tenant takes no action, Tenant shall be deemed to have waived its right to such
Non-Disturbance Agreement. If Tenant fails to accept the Non-Disturbance
Agreement as descried in Exhibit G attached, it shall be considered that
Landlord has satisfied its requirement. As to any future mortgagee, Tenant's
agreement to subordinate under Section 6.1 is conditioned upon its receipt of a
non-disturbance agreement in accordance who Section 6.2. Such future
non-disturbance agreement shall contain such terms and conditions as are
generally required by an institutional lender and as reasonably requested by a
tenant occupying 50,000 rentable square feet in a 100,000 rentable square foot
office building.
10
15
ARTICLE 7
QUIET ENJOYMENT
7.1 So long as Tenant pays all of the fixed rent and additional rent
due hereunder and performs all of Tenant's other obligations hereunder, Tenant
shall peaceably and quietly have, hold, and enjoy the Demised Premises subject,
nevertheless, to the obligations of this Lease and, as provided in Article 6, to
the superior mortgages.
ARTICLE 8
ASSIGNMENT, MORTGAGING, SUBLETTING
8.1 Neither this Lease, nor the term and estate hereby granted, nor any
part hereof or thereof, nor the interest of Tenant in any sublease, or the
rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, and neither the Demised Premises, nor any part
thereof shall be encumbered in any manner by reason of any act or omission on
the part of Tenant or anyone claiming under or through Tenant or shall be
sublet, or offered or advertised for subletting, or be used or occupied or
permitted to be used or occupied or utilized for desk space or for mailing
privileges, by anyone other than Tenant or for any purpose other than as
permitted by this Lease, without the prior written consent of Landlord in every
case, except as expressly otherwise provided in this Article. Landlord agrees
that its consent shall not be unreasonably withheld or delayed.
8.2 If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof be sublet or be used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant and expiration of Tenant's time to cure such default,
collect rent from the undertenant or occupant. In either event, Landlord may
apply the net amount collected to the rents herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
any of the provisions of Section 8.1, or the acceptance of the assignee,
undertenant or occupants as Tenant, or a release of Tenant from the further
performance by Tenant of Tenant's obligations under this Lease. The consent by
Landlord to assignment, mortgaging, underletting or use or occupancy by others
shall not in any wise be considered to relieve Tenant from obtaining the express
written consent of Landlord to any other or further assignment, mortgaging or
underletting or use or occupancy by others not expressly permitted by this
Article.
8.3 The following provisions shall govern in connection with the
subletting of all or a portion of the Demised Premises:
(a) Tenant shall submit in writing to Landlord (i) the name of the
proposed subtenant; (ii) the nature and character of the proposed subtenant's
business, and the intended use to be made of the Demised Premises by the
proposed subtenant; (iii) the terms and conditions of the proposed sublease; and
(iv) such reasonable financial information as Landlord may request regarding the
proposed subtenant.
11
16
(b) Within ten (10) business days of Landlord's receipt of the
information described in (a) above, Landlord shall inform Tenant whether it
gives or withholds its consent to such subletting. If Landlord takes no action
within such ten business day period, Xxxxx shall give Landlord written notice
and if Landlord takes no action within two (2) business days of such notice from
Tenant, Landlord shall be deemed to have approved the sublease.
(c) In connection with any subletting, Tenant shall not openly
offer or advertise the Demised Premises, or any part thereof, to any other
tenant in the Building at a rental rate less than the current rental rate for
office buildings in the surrounding area.
8.4 Tenant shall remain fully liable for the performance of all
Tenant's obligations hereunder notwithstanding any subletting provided for
herein (except to Landlord), and without limiting the generality of the
foregoing, shall remain fully responsible and liable to Landlord for all acts
and omissions of any subtenant or anyone claiming under or through any subtenant
which shall be in violation of any of the obligations of this Lease and any such
violation shall be deemed to be a violation by Tenant.
8.5 Tenant shall not, without the prior written consent of Landlord,
assign this Lease, and the provisions of Section 8.3 with respect to subletting
shall equally apply to any assignment of this Lease. Tenant herein named, or any
immediate or remote successor in interest of Tenant herein named, shall remain
liable jointly and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Tenant's obligations hereunder.
8.6 Notwithstanding anything to the contrary contained in this Article
with respect to assignment or subletting, Landlord's consent to any assignment
and/or subletting (i) to any parent, affiliate or wholly-owned subsidiary of
Tenant (as defined in Rule 240.12b-2 under the Securities Exchange Act of 1934)
shall not be required or (ii) to any corporation or other entity which succeeds
to all or substantially all of the assets and business of Tenant shall not be
required, but Tenant shall give located Landlord written notice thereof.
8.7 Tenant further agrees that it shall not place any signs on the
windows bed in the Demised Premises indicating that all or any portion of the
Demised Premises are available for subleasing or assignment.
8.8 If the consideration payable by any assignee or the rents payable
under any sublease are greater than the Fixed Rent, Additional Rent and other
charges payable by Tenant hereunder, after Tenant has recovered its reasonable
costs associated with such subletting or assignment including brokerage fees,
the cost of any leasehold improvements paid by Tenant (other than the initial
fit-out) and any other actual reasonable and necessary costs incurred by Tenant
in connection with such subletting or assignment, Tenant shall pay fifty percent
(50%) of such excess to Landlord.
8.9 Landlord acknowledges that the Demised Premises may be occupied by
a parent, subsidiary or affiliate of Tenant ("Tenant Affiliate") and their
employees and that such occupancy of the Demised Premises shall not be
considered an assignment or sublease. Any of Landlord's representations,
warranties, covenants, agreements, guarantees and indemnities made
12
17
for the benefit of Tenant or any rights or privileges granted by Landlord to
Tenant shall also inure to the benefit of such Tenant Affiliate.
ARTICLE 9
COMPLIANCE WITH LAWS AND REQUIREMENTS
OF PUBLIC AUTHORITIES
9.1 Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of public authority, and at
its expense shall comply with all laws and requirements of public authorities
which shall with respect to the Demised Premises or the use and occupation
thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant, arising from (i) Tenant's use of the Demised Premises;
(ii) the manner of conduct of Tenant's business or operation of its
installation, equipment or other property therein; (ii) any cause or condition
created by or at the instance of Tenant, other than by Landlord's performance of
any work for or on behalf of Tenant; or (iv) the breach of any of Tenant's
obligations hereunder. Furthermore, Tenant need not comply with any such law or
requirement of public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 9.2.
Nothing contained herein shall be construed to require Tenant to make
structural alterations to the Building except to the extent that same are
required by reason of Tenant's specific use (other than general office).
9.2 Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings provided that:
(a) Tenant shall defend, indemnify, and hold harmless Landlord
against all liability, loss or damage which Landlord shall suffer by reason of
such non-compliance or contest, including reasonable attorney's fees and other
expenses reasonably incurred by Landlord;
(b) Such non-compliance or contest shall not constitute or result
in any violation of any superior mortgage, or, if such superior mortgage shall
permit such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such security
shall be furnished at the expense of Tenant; and
(c) Tenant shall keep Landlord advised as to the status of such
proceedings.
9.3 After Tenant takes occupancy of the Demised Premises, Landlord
agrees that in the event there is an occurrence of governmental non-compliance
regarding the Building (excluding the Demised Premises) or the common areas
throughout the term of the Lease, Landlord shall be responsible, at its sole
expense, to remedy any such defect or non-compliance
13
18
unless such non-compliance is a result of actions of Tenant as described in
Section 9.1. After Tenant takes occupancy of the Demised Premises, Tenant shall
be responsible for governmental compliance in the Demised Premises.
9.4 As of the day Tenant takes occupancy of the Demised Premises,
Landlord states that the Land, the Building and the Demised Premises shall
comply with all laws, rules and regulations and requirements of public
authorities including Title III of the Americans with Disabilities Act
(collectively "Laws"), as the Laws apply to existing structures constituting
commercial facilities. If Landlord's affiliate, X. Xxxxxxx Co., Inc. is
performing Tenant's Work or any other work in the Building, Landlord shall
ensure Tenant's Work and any other work performed by Landlord complies with any
applicable Laws as it relates to Tenant's Work in making the Demised Premises
ready for occupancy. The foregoing is expressly conditioned upon Tenant's
representation that all Tenant's Plans shall comply with the all applicable Laws
as set forth in Article 3.1. If X. Xxxxxxx Co., Inc. is not performing any
portion of Tenant's Work or any other work performed in the Building by or on
behalf of Tenant, Tenant shall ensure Tenant's Work or any other work performed
by or on behalf of Tenant complies with any applicable Laws. If, after Tenant
takes occupancy of the Demised Premises, further changes to the Building or the
Demised Premises are required under the Laws by virtue of the Lease and/or
Tenant's specific use and occupancy, such changes shall be Tenant's
responsibility. If, after the Demised Premises are ready for occupancy in
accordance with Article 4, the Laws require further changes to the Building or
the Demised Premises when occasioned by Landlord or any other tenant, then such
changes shall not be Tenant's responsibility. Landlord and Tenant shall
indemnify each other for actual damages suffered out of any non-compliance with
the Laws by the other party as aforesaid.
ARTICLE 10
INSURANCE
10.1 Tenant shall not violate, or permit the violation of, any
condition imposed by the all-risk casualty policy issued for the Building and
shall not do anything, or permit anything to be kept, in the Demised Premises
which would increase the fire or other casualty insurance rate on the Building
or the property therein over the rate which would otherwise then be in effect,
(unless Tenant pays the resulting increased amount of premium as provided in
Section 10.2) or which would result in insurance companies of good standing
refusing to insure the Building or any of such property in amounts and at normal
rates reasonably satisfactory to Landlord. However, Tenant shall not be subject
to any liability or obligation under this Article by reason of the proper use of
the Demised Premises for the purposes permitted by Article 2.
10.2 If, by reason of any act or omission on the part of Tenant, the
rate of fire insurance with extended all-risk coverage on the Building or
equipment or other property of Landlord or other tenants shall be higher than it
otherwise would be, Tenant shall reimburse Landlord, on demand, for that part of
the premiums for fire insurance and extended all-risk coverage paid by Landlord
because of such act or omission on the part of Tenant, which sum shall be deemed
to be additional rent and collectible as such.
14
19
10.3 In the event that any dispute should arise between Landlord and
Tenant concerning insurance rates, a schedule or "make up" of rates for the
Building or the Demised Premises, as the case may be, issued by the Fire
Insurance Rating Organization of New Jersey or other similar body making rates
for fire insurance and extended coverage for the premises concerned, shall be
presumptive evidence of the facts therein stated and of the several items and
charges in the fire insurance rates with extended coverage then applicable to
such premises.
10.4 Tenant shall obtain and keep in full force and effect during the
term of this Lease, at its own cost and expense, Comprehensive General Liability
Insurance, such insurance to afford protection in an amount of not less than
$1,000,000 for injury or death to any one person, $3,000,000 for injury or death
arising out of any one occurrence, and $1,000,000 for damage to property,
protecting and naming the Landlord and the Tenant as insured against any and all
claims for personal injury, death or property damage occurring in, upon,
adjacent, or connected with the Demised Premises and any part thereof. Tenant
shall pay all premiums and charges therefor and upon failure to do so Landlord
may, but shall not be obligated to, make payments, and in such latter event the
Tenant agrees to pay the amount thereof to Landlord on demand and such sum shall
be deemed to be additional rent, and in each instance collectible on the first
day of any month following the date of notice to Tenant in the same manner as
though it were rent originally reserved hereunder, together with interest
thereon at the rate of three points in excess of Prime Rate of the First Union.
Tenant will use its best efforts to include in such Comprehensive General
Liability policy a provision to the effect that same will be non-cancelable,
except upon reasonable advance written notice to Landlord. The original
insurance policies or appropriate certificates shall be deposited with Landlord
together with any renewals, replacements or endorsements to the end that said
insurance shall be in full force and effect for the benefit of the Landlord
during the term of this Lease. In the event Tenant shall fail to procure and
place such insurance, the Landlord may, but shall not be obligated to, procure
and place same, in which event the amount of the premium paid shall be refunded
by Tenant to Landlord upon demand and shall in each instance be collectible on
the first day of the month or any subsequent month following the date of payment
by Landlord, in the same manner as though said sums were additional rent
reserved hereunder together with interest thereon at the rate of three points in
excess of the Prime Rate of the First Union.
10.5 Landlord and Tenant agree to use their best efforts to include in
each of its insurance policies a waiver of the insurer's right of subrogation
against the other party or if such waiver shall be unobtainable or unenforceable
(a) an express agreement that such policy shall not be invalidated if the
insured waives or has waived before the casualty, the right of recovery against
any party responsible for a casualty covered by the policy or (b) any other form
of permission for the release of the other party. If such waiver, agreement, or
permission shall not be or shall cease to be obtainable without additional
charge, or at all, the insured party shall so notify the other party after
learning thereof. In such a case, if the other party shall agree in writing to
pay the insurer's additional charge therefor, such waiver agreement or
permission shall, if obtainable, be included in the policy.
10.6 Each party hereby releases the other party with respect to any
claim (including a claim for negligence) which it might otherwise have against
the other party for loss, damage, or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this Lease to the extent to which it is insured under a
15
20
policy or policies containing a waiver of subrogation or permission to release
liability or naming the other party as an additional insured, as provided in
Sections 10.4 and 10.5. If notwithstanding the recovery of insurance proceeds by
either party for loss, damage or destruction of its property (or rental value or
business interruption) the other party is liable to the first party with respect
thereto or is obligated under this Lease to make replacement, repair, or
restoration or payment, then provided that the first party's right of full
recovery under its insurance policies is not thereby prejudiced or otherwise
adversely affected, the amount of the net proceeds of the first party's
insurance against such loss, damage or destruction shall be offset against the
second party's liability to the first party thereof, or shall be made available
to the second party to pay for replacement, repair, or restoration, as the case
may be.
10.7 The waiver of subrogation or permission for release referred to in
Section 10.5 shall extend to the agents of each party and their employees and,
in the case of Tenant, shall also extend to all other persons and entities
occupying, using or visiting the Demised Premises in accordance with the terms
of this Lease, but only if and to the extent that such waiver or permission can
be obtained without additional charge (unless such party shall pay such charge).
The releases provided for in Section 10.6 shall likewise extend to such agents,
employees and other persons and entities, if and to the extent that such waiver
or permission is effective as to them. Nothing contained in Section 10.6 shall
be deemed to relieve either party of any duty imposed elsewhere in this Lease to
repair, restore or rebuild or to nullify any abatement of rents provided for
elsewhere in this Lease. Except as otherwise provided in Section 10.4, nothing
contained in Sections 10.5 and 10.6 shall be deemed to impose upon either party
any duty to procure or maintain any of the kinds of insurance referred to
therein or any particular amounts or limits of any such kinds of insurance.
However, each party shall advise the other, upon request, from time to time (but
not more often than once a year) of all of the policies of insurance it is
carrying of any of the kinds referred to in Sections 10.1 and 10.4, and if it
shall discontinue any such policy or allow it to lapse, shall notify the other
party thereof with reasonable promptness. The insurance policies referred to in
Sections 10.5 and 10.6 shall be deemed to include policies procured and
maintained by a party for the benefit of its mortgagee or pledgee.
ARTICLE 11
RULES AND REGULATIONS
11.1 Tenant and its employees and agent shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit E, and such
reasonable changes therein (whether by modification, elimination, or addition)
as Landlord at any time or times hereafter may make and communicate in writing
to Tenant, which do not unreasonably affect the conduct of Tenant's business in
the Demised Premises or substantially affect Tenant's cost of occupancy;
provided, however, that in case of any conflict or inconsistency between the
provisions of this Lease and any of the Rules and Regulations as originally
promulgated or as changed, the provisions of this Lease shall control.
11.2 Nothing contained in this Lease shall be construed to impose upon
Landlord any duty or obligation to Tenant to enforce the Rules and Regulations
or the terms, covenants, or conditions in any other lease, as against any other
tenant and Landlord shall not be
16
21
liable to Tenant for violation of the same by any other tenant or its employees,
agents or visitors. However, Landlord shall not enforce any of the Rules and
Regulations in such manner as to discriminate against Tenant or anyone claiming
under or through Tenant.
ARTICLE 12
TENANT'S CHANGES
12.1 After Tenant takes occupancy of the Demised Premises, Tenant shall
make no changes, alterations, additions, installations, substitutions, or
improvements (hereinafter collectively called "changes," and, as applied to
changes provided for in this Article, "Tenant's Changes") in and to the Demised
Premises without the express prior written consent of Landlord, which shall not
be unreasonably withheld conditioned or delayed. Any additional portion of the
Demised Premises used for lab space beyond that lab space provided for in the
initial build-out shall be considered a Tenant Change and must be approved by
Landlord in writing pursuant to this Article. Landlord's consent shall not be
required for painting of the Demised Premises provided Tenant gives Landlord
written notice of its intent to paint the premises, the manufacturer of the
paint and the color of the paint. Landlord's consent shall not be required for
carpeting the Demised Premises provided Tenant gives Landlord written notice of
specifically how the carpet is going to be installed.
All proposed Tenant's Changes shall be submitted to Landlord for
written consent at least thirty (30) days prior to the date Tenant intends to
commence such changes, such submission to include plans and specifications for
the work to be done, proposed scheduling, and the estimated cost of completion
of Tenant's Changes. Landlord agrees, within ten (10) business days from
Landlord's receipt of Tenant's request for consent to a Tenant Change, to
acknowledge receipt of such request. At the time Landlord gives its consent to
the Tenant Changes, Landlord shall provide Tenant with the estimated cost of the
supervision fee as set forth below. If Landlord consents to Tenant's Changes,
Tenant may commence and diligently prosecute to completion Tenant's Changes,
under the direct supervision of Landlord. If Landlord fails to take any action
within the thirty (30) day period set forth above, Landlord shall be deemed to
approved the Tenant's Changes. However, any Tenant Change deemed approved in
such a manner shall be subject to the Supervision Fee as set forth below and
Tenant shall be required to give Landlord written notice of Landlord's failure
to respond to Tenant's request for consent to a Tenant Change in which notice
Tenant must demand Landlord to advise Tenant of any restoration required as a
result of such Tenant Change. Thereafter, if Landlord fails to advise Tenant of
any restoration requirements pursuant to such Tenant Change within three (3)
days of Landlord's receipt of Tenant's demand, then restoration shall not
otherwise be required with respect to such Tenant's Changes.
Tenant shall pay to Landlord a Supervision Fee (which shall include the
cost of review of the proposed Tenant's Changes) the lesser of the actual cost
of the supervision or equal to ten percent (10%) of the certified cost of
completion of Tenant's Changes. Prior to the commencement of Tenant's Changes,
Tenant shall pay to Landlord ten percent (10%) of the estimated cost of
completion (the "Estimated Payment") as additional rent. Within fifteen (15)
days after completion of Tenant's Changes, Tenant shall furnish Landlord with a
statement, certified by an officer or a principal of Tenant to be accurate and
true, of the total cost of
17
22
completion of Tenant's Changes (the "Total Cost"). If such certified statement
furnished by Tenant shall indicate that the Estimated Payment exceeded the
lesser of the actual cost of the supervision or ten percent (10%) of the Total
Cost, Landlord shall forthwith either (i) pay the amount of excess directly to
Tenant concurrently with the delivery of the certified statement or (ii) permit
Tenant to credit the amount of such excess against the subsequent payment of
rent due hereunder. If such certified statement furnished by Tenant shall
indicate that the lesser of the actual cost of the supervision or ten percent
(10%) of the Total Cost exceeded Tenant's Estimated Payment, Tenant shall
simultaneously with the delivery to Landlord of the certified statement, pay the
amount of such excess to Landlord as additional rent. Any Tenant Changes
performed by the Landlord shall not be subject to a separate Supervision Fee as
described in this Paragraph (the cost of any type of supervision shall be
included in the price of the work).
12.2 Notwithstanding the provisions of Section 12.1, all proposed
Tenant's Changes which shall affect or alter:
(a) The outside appearance or the strength of the Building or of
any of its structural parts; or
(b) Any part of the Building outside of the Demised Premises; or
(c) The mechanical, electrical, sanitary and other service systems
of the Building, or increase the usage of such systems;
shall be performed only by the Landlord, at a cost to be mutually agreed upon
between Landlord and Tenant, which cost shall be commercially reasonable.
12.3 Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's
Changes and for final approval thereof upon completion, and shall cause Tenant's
Changes to be performed in compliance therewith and with all applicable laws and
requirements of public authorities, and with all applicable requirements of
insurance bodies, and in good and workmanlike manner, using new materials and
equipment at least equal in quality and class to the original installations in
the Building. Tenant's Changes shall be performed in such manner as not to
unreasonably interfere with or delay and (unless Tenant shall indemnify Landlord
therefor to the latter's reasonable satisfaction) as not to impose any
additional expense upon Landlord in the construction, maintenance or operation
of the Building. Throughout the performance of Tenant's Changes, Tenant, at its
expense, shall carry, or cause to be carried, workmen's compensation insurance
in statutory limits and general liability insurance for any occurrence in or
about the Building, in which Landlord and its agents shall be named as parties
insured in such limits as Landlord may reasonably prescribe, with insurers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of Tenant's Changes and, on request, at reasonable intervals
thereafter during the continuance of Tenant's Changes. If any of Tenant's
Changes shall invoke the removal of any fixtures, equipment or other property in
the Demised Premises which are not Tenant's Property (as defined in Article 13),
such fixtures, equipment or other property shall be promptly replaced, at
Tenant's expense, with new fixtures, equipment or other property (as the case
may
18
23
be) of like utility and at least equal value. In addition, unless Landlord shall
otherwise expressly consent in writing, the Tenant shall deliver such removed
fixtures to Landlord.
12.4 Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by any public
authority having or asserting jurisdiction. Tenant shall defend, indemnify and
save harmless Landlord against any and all mechanic's and other liens filed in
connection with Tenant's Changes, including the liens of any security interest
in, conditional sales of, or chattel mortgages upon, any material, fixtures or
articles so installed in and constituting part of the Demised Premises and,
against all costs, expenses and liabilities incurred in connection with any such
lien, security interest, conditional sale or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Section 9.2.
12.5 Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article 12 shall not be done in a manner which would create
any work stoppage, picketing, labor disruption or dispute or violate Landlord's
union contracts affecting the Land and Building, nor interference with the
business of Landlord or any tenant or occupant of the Building.
12.6 If Landlord requires restoration of all or any part of Tenant's
Changes, Landlord shall advise Tenant of such restoration requirement at the
time Landlord gives its consent to any Tenant Changes. If Landlord fails to
require restoration at the time it gives such consent, then restoration shall
not otherwise be required with respect to such Tenant's Changes.
ARTICLE 13
TENANT'S PROPERTY
13.1 All fixtures, equipment, improvements, and appurtenances attached
to or built into the Demised Premises at the commencement of or during the term
of this Lease, whether or not by or at the expense of Tenant, shall be and
remain a part of the Demised Premises, shall be deemed the property of Landlord
and shall not be removed by Tenant, except as hereinafter in this Article
expressly provided.
13.2 All business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises by
or for the account of Tenant, without expense to Landlord, and can be removed
without permanent structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Demised Premises (all of which are sometimes called "Tenant's
Property"), shall be and shall remain the property of Tenant and may be removed
by it at any time during the term of this Lease; provided that if any of
Tenant's Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Demised Premises or to the Building resulting from such
removal. Any equipment or other property for which Landlord shall have
19
24
granted any allowance or credit to Tenant shall not be deemed to have been
installed by or for the account of Tenant, without expense to Landlord, and
shall not be considered Tenant's Property.
13.3 At or before the Expiration Date, or the date of an earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord, and, if requested by Landlord, all items of work done by
or on behalf of Tenant, in accordance with Article 12, after the Tenant takes
occupancy of the Demised Premises shall be removed by Tenant and Tenant shall
repair any damage to the Demised Premises or the Building resulting from such
removal. Landlord and Tenant agree that a minimum of ninety (90) days prior to
the Expiration Date of this Lease, Landlord shall walk through the Demised
Premises with Tenant and create a punchlist of all restoration which shall be
required to be completed by Tenant by the Expiration Date. Failure by Landlord
and Tenant to walk through the Demised Premises ninety (90) days prior to the
Expiration Date of this Lease shall not relieve Tenant of any restoration
obligations otherwise required pursuant to this Lease. However, if Tenant gives
Landlord notice that it desires to walk through the Demised Premises and
identify the restoration required as set forth above and Landlord does not
fulfill its obligation to walk through the Demised Premises, Tenant will not be
relieved of any of its restoration obligations but will not be deemed in
holdover as set forth below while it performs such restoration. Thereafter,
Tenant may request a written estimate from Landlord for the cost of all
restoration required pursuant to this Lease. Landlord and Tenant acknowledge
that Landlord, prior to the Expiration Date, will have already notified Tenant
of its restoration obligations pursuant to a restoration al letter dated
September 12, 1966 and Article 12 of the Lease, and, as a result,
notwithstanding the ninety (90) day time period set forth above, it shall be
Tenant's obligation to ensure that Tenant has enough time after the Landlord and
Tenant walk through the Demised Premises, if Tenant will be performing such
restoration prior to the Expiration Date of the Lease. The cost contained in
such estimate shall be commercially reasonable and where possible, Landlord will
competitively bid the work. In lieu of restoring the Demised Premises as
required pursuant to this Lease, Tenant may, at its option, pay Landlord, prior
to the Expiration Date of the Lease, the cost of such restoration as set forth
in Landlord's estimate. If Tenant fails to remove its Property (except for minor
or insubstantial pieces of Tenant's Property which can be easily removed by
Landlord at little or no expense), fails to perform any restoration required of
it under this Lease and/or fails to pay Landlord for the cost of any restoration
required, on or before the last day of the term of this Lease or upon any
earlier termination, then Tenant shall be deemed a holdover Tenant as
contemplated in Article 40. For the first fifteen (15) days of holdover as set
forth above, Tenant shall only be required to pay holdover charges on a per diem
basis. After the expiration of fifteen (15) days the Tenant shall be in subject
to holdover changes on a monthly basis. If, unknowingly, Tenant incorrectly
performs any of the restoration required, Landlord shall notify Tenant and
Tenant shall have fifteen (15) days to correct such error. If Tenant fails to
correct such error within the thirty (30) day period, Tenant shall be subject to
holdover from the day on which Tenant received Landlord's notice of the
incorrect restoration.
13.4 Any other items of Tenant's Property (except money, securities,
and other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a
20
25
period of fifteen (15) days following an earlier termination date, may, at the
option of the Landlord, be deemed to have been abandoned, and in such case
either may be retained by Landlord as its property or may be disposed of,
without accountability, in such manner as Landlord may see fit, at Tenant's
expense.
ARTICLE 14
REPAIRS AND MAINTENANCE
14.1 Tenant shall take good care of the Demised Premises. Tenant, at
its expense, shall promptly make all repairs, ordinary or extraordinary,
interior or exterior, structural or otherwise in and about the Demised Premises
and the Building, as shall be required by reason of (i) the performance of
Tenant's Changes, if Landlord or its affiliate does not perform the Tenant's
Changes; (ii) the installation, use or operation of Tenant's Property in the
Demised Premises by Tenant, its agents or employees; (iii) the moving of
Tenant's Property in or out of the Building; or (iv) the misuse or neglect of
Tenant or any of its employees, agents, contractors or invitees; but Tenant
shall not be responsible, and Landlord shall be responsible, for any of such
repairs as are required by reason of Landlord's neglect or other fault in the
manner of performing any of Tenant's Finish Work or Tenant's Changes which may
be undertaken by Landlord for Tenant's account or are otherwise required by
reason of neglect or other fault of Landlord or its employees, agents, or
contractors. Except if required by the neglect or other fault of Landlord or its
employees, agents, or contractors, Tenant, at its expense, shall replace all
scratched, damaged or broken doors or other glass in or about the Demised
Premises and shall be responsible for all repairs, maintenance, and replacement
of wall and floor coverings in the Demised Premises except for ordinary wear and
tear. Landlord shall be responsible for the repair and maintenance of all
non-conforming ballasts existing prior to the commencement of Tenant's Work
which ballasts remain as fixtures in the Demised Premises. Tenant shall be
responsible for the repair and maintenance of all other ballasts.
14.2 Landlord, subject to the provisions of Section 5.4, shall keep and
maintain the Building and its fixtures, appurtenances, systems and facilities
serving the Demised Premises, in good working order, condition, and repair and
shall make with all due diligence all repairs, structural and otherwise,
interior and exterior, as and when needed in or about the Demised Premises,
except for those repairs for which Tenant is responsible pursuant to any other
provisions of this Lease.
14.3 Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption, or injury to Tenant's business arising
from Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or required by law, to make in or to any portion of the
Building or the Demised Premises, or in or to the fixtures, equipment of
appurtenances of the Building or the Demised Premises, provided that Landlord
shall use due diligence with respect thereto and shall perform such work, except
in case of emergency, at a time reasonably convenient to Tenant and otherwise in
such a manner as will not materially interfere with Tenant's use of the Demised
Premises. Landlord, at its sole expense and not subject to Section 5.4, shall be
responsible for roof replacement and structural repair and replacement during
the initial term of the Lease.
21
26
ARTICLE 15
ELECTRICITY
15.1 Landlord shall furnish the electric energy that Tenant shall
require in the Demised Premises. Tenant shall pay to Landlord, as additional
rent, the costs and charges for all electric energy furnished to Tenant at the
Demised Premises. Additional rent for such electric energy shall be calculated
and payable in the manner hereinafter set forth.
15.2 Within a reasonable time after the commencement of the term of
this Lease, subsequent to Tenant's having taken occupancy of the Demised
Premises and having installed and commenced the use of Tenant's electrical
equipment, Landlord, at Tenant's sole expense, shall cause a survey to be made
by a reputable independent electrical engineer or similar agency of the
estimated use of electric energy (other than for heat and air conditioning) to
the Demised Premises, and shall compute the cost thereof for the quantity so
determined at prevailing retail rates. Tenant shall pay Landlord the cost of
such electric energy, as so calculated, on a monthly basis, as additional rent,
together with its payment of fixed rent.
Until such time as Landlord shall complete the aforedescribed survey,
Tenant shall pay to Landlord, each and every month, as additional rent, for and
on account of Tenant's electrical consumption, the sum of $3,906.25 for the
Initial Space for first two months of the Lease term and $5,208.33 thereafter to
be applied against Tenant's obligations hereunder. Upon completion of the
survey, there shall be an adjustment for the period from the day the Tenant
takes occupancy of the Demised Premises through the date that the results of the
survey shall be effectuated as shall be required. Landlord shall have the right,
at any time, during the term of this Lease, to cause the Demised Premises to be
resurveyed. In the event that such resurvey indicates an increase of 10% or
greater of Tenant's previous consumption for the Demised Premises, then Tenant
shall pay the cost of such resurvey. In the event that such resurvey indicates
either of (i) no increase; or (ii) an increase less than 10% of Tenant's
previous consumption, or (iii) a decrease, then Landlord shall bear the cost of
such resurvey. Tenant shall have the right, at any time during the term of the
Lease, to cause the Demised Premises to be resurveyed. In the event that such
resurvey shall indicate increased or decreased electrical consumption by Tenant
at the Demised Premises, there shall be an adjustment in the amount paid by
Tenant to Landlord for Tenant's electrical consumption in accordance with the
resurvey as well as an adjustment retroactive to the date Landlord establishes
Tenant's increase or decrease in electrical consumption in excess of the
consumption established by the prior survey. All surveys pursuant to this
Article shall be conducted by a reputable independent electrical engineer or
similar agency recognized by the electric company servicing the Building.
Landlord shall submit to Tenant the results of any electrical survey
and the same shall be deemed binding upon Tenant unless Tenant shall object to
same within ninety (90) days of the date that Landlord shall furnish Tenant with
the results of the survey.
15.3 Landlord shall not be liable in any way to Tenant for any failure
or defect in the supply or character of electric energy furnished to the Demised
Premises by reason of any requirement, act, or omission of the public utility
serving the Building with electricity or for any
22
27
other reason. Landlord shall furnish and install all replacement lighting tubes,
lamps and bulbs required in the Demised Premises at Tenant's expense.
15.4 Tenants use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. Landlord shall provide
electricity service to the Demised Premises (exclusive of HVAC service) for
Tenant's exclusive use for business machines and lighting equal to +3 xxxxx per
rentable square feet. 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 (which
shall not be unreasonably withheld), connect any additional fixtures,
appliances, or equipment to the Building electrical distribution system or make
any alteration or addition to the electric system of the Demised Premises
existing on the day the Tenant takes occupancy of the Demised Premises. Should
Landlord grant such consent, all additional risers or other equipment required
therefor shall be provided by Landlord and the cost thereof shall be paid by
Tenant upon Landlord's demand. As a condition to granting such consent,
Landlord, at Tenant's sole expense, may cause a new survey to be made of the use
of electric energy (other than for heating and air-conditioning) in order to
calculate the potential additional electric energy to be made available to
Tenant based upon the estimated additional capacity of such additional risers or
other equipment. When the amount of such increase is so determined, and the
estimated cost thereof is calculated, the amount of monthly additional rent
payable pursuant to Section 15.2 hereof shall be adjusted to reflect the
additional cost, and shall be payable as therein provided.
15.5 If the public utility rate schedule for the supply of electric
current to the Building shall be increased during the term of this Lease, the
additional rent payable pursuant to Section 15.2 hereof shall be equitably
adjusted to reflect the resulting increase in Landlord's cost of furnishing
electric service to the Demised Premises effective as of the date of any
increase. Landlord and Tenant agree that the rate charged to Tenant for
electricity shall not be greater than the rate Tenant would have paid had the
Demised Premises been separately metered.
15.6 Tenant agrees within three (3) months from the day the Tenant
takes occupancy of the Demised Premises to submit to Landlord a list of fixtures
and equipment utilizing electric current including, but not limited to, copying
machines, computers and word processing equipment and equipment of a similar
nature. On the first day of each calendar quarter thereafter, Tenant shall
submit to Landlord a statement indicating any substantial changes in the list
previously supplied as same may be updated by the required quarterly statements.
15.7 Tenant, at its sole cost and expense, may have a submeter
installed by Landlord at any time during the term of this Lease.
ARTICLE 16
HEATING, VENTILATION AND AIR-CONDITIONING
16.1 Landlord, subject to the provisions of Section 5.4, shall maintain
and operate the heating, ventilating, and air-conditioning systems (hereinafter
called "the systems") and shall furnish heat, ventilating, and air conditioning
(hereinafter collectively called "air
23
28
conditioning service") in the Demised Premises through the systems, in
compliance with the performance specifications set forth in Exhibit C, as may be
required for comfortable occupancy of the Demised Premises from 7:00 AM to 6:00
PM Monday through Friday and 8:00 AM to 1:00 PM on Saturday as requested by
Tenant, except days observed by the federal or the state government as legal
holidays ("Regular Hours") throughout the year. If Tenant shall require
air-conditioning service at any other time (hereinafter called "after hours"),
Landlord shall furnish such after hours air-conditioning service upon four (4)
hours advance notice or the preceding day in the event of holidays or weekends
from Tenant, and Tenant shall pay Landlord's then established charges therefor
on Landlord's demand. Landlord's current charge for after hours air-conditioning
service is S45.00 per hour for the entire Demised Premises.
16.2 Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified in Exhibit C for air-conditioning service in the Demised
Premises, or rearrangement of partitioning which interferes with normal
operation of the air-conditioning in the Demised Premises, may require changes
in the air-conditioning system servicing the Demised Premises. Such changes, so
occasioned, shall be made by Landlord, at Tenant's expense, as Tenant's Changes
pursuant to Article 12.
ARTICLE 17
LANDLORD'S OTHER SERVICES
17.1 Landlord, subject to the provisions of Section 5.4, shall provide
public elevator service, passenger and service, by elevators serving the floor
on which the Demised Premises are situated during Regular Hours, and shall have
at least one passenger elevator subject to call at all other times.
17.2 Landlord, subject to the provisions of Section 5.4, shall cause
the Demised Premises, including the exterior and the interior of the windows
thereof, to be cleaned. Tenant shall pay to Landlord on demand the costs
incurred by Landlord for (a) extra cleaning work in the Demised Premises
required because of (i) misuse or neglect on the part of Tenant or its employees
or visitors; (ii) use of portions of the Demised Premises for preparation,
serving or consumption of food or beverages, data processing, or reproducing
operations, private lavatories or toilets or other special purpose areas
requiring greater or more difficult cleaning work than office areas; (iii)
unusual quantity of interior glass sauces; (iv) non-building standard materials
or finishes installed by Tenant or at its request; and (b) removal from the
Demised Premises and the Building of so much of any refuse and rubbish of Tenant
as shall exceed that ordinarily accumulated daily in the routine of business
office occupancy. Landlord, its cleaning contractor, and their employees shall
have after-hours access to the Demised Premises and the free use of light,
power, and water in the Demised Premises as reasonably required for the purpose
of cleaning the Demised Premises in accordance with Landlord's obligations
hereunder.
17.3 Landlord, subject to the provisions of Section 5.4, shall furnish
adequate hot and cold water to each floor of the Building for drinking,
lavatory, and cleaning purposes, together with soap, towels, and toilet tissue
for each lavatory. If Tenant uses water for any other purpose, Landlord, at
Tenant's expense, shall install meters to measure Tenant's consumption of
24
29
cold water and/or hot water for such other purposes and/or steam, as the case
may be. Tenant shall pay for the quantities of cold water and hot water shown on
such meters, at Landlord's cost thereof, on the rendition of Landlord's bills
therefor.
17.4 Landlord, at its expense, and at Tenant's request, shall insert
initial listings on the Building directory of the names of Tenant or any Tenant
Affiliate as defined in Section 8.9, and the names of any of their officers and
employees, provided that the names so listed shall not take up more than
Tenant's proportionate share of the space on the Building directory. All
Building directory changes made at Tenant's request after the Tenant's initial
listings have been placed on the Building directory shall be made by Landlord at
the expense of Tenant, and Tenant agrees to promptly pay to Landlord as
additional rent the cost of such changes within ten (10) days after Landlord has
submitted an invoice therefor.
17.5 Tenant at its sole cost and expense shall have the right to
install its name and logo on the existing exterior monument sign which shall be
subject to Landlord's reasonable approval and shall utilize Building standard
graphics, the size and location of which shall be determined by Landlord. Such
sign shall be the existing exterior monument sign located on the lawn adjacent
to the Building. Tenant agrees to remove such sign and restore the existing
exterior monument sign to its original condition, wear and tear excepted, upon
the expiration or earlier termination of this Lease. Tenant shall obtain all
required governmental permits and approvals and all costs and expenses
associated therewith shall be borne solely by Tenant. The erection of the sign
shall not cause any structural damage to the Building.
17.6 Landlord reserves the right, without any liability to Tenant, to
stop service of any of the heating, ventilating, air conditioning, electric,
sanitary, elevator, or other Building systems serving the Demised Premises, or
the rendition of any of the other services required of Landlord under this
Lease, whenever and for so long as may be necessary, by reason of accidents,
emergencies, strikes, or the making of repairs or changes which Landlord is
required by this Lease or by law to make or in good xxxxx xxxxx necessary, by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond
Landlord's reasonable control.
17.7 Throughout the term and extensions of this Lease, Landlord shall
make available for Tenant's use in common with other tenants of the Building 4
spaces per 1,000 rentable square feet and 10 reserved parking spaces in the
parking area adjacent to the Building as designated on Exhibit H. Landlord
agrees that except for payment of common expense charges covered by Article 5,
there shall be no separate fee or cost to Tenant for use of the parking area.
17.8 The Building and the Demised Premises shall be cleaned in
accordance with the Cleaning and Maintenance Schedule set forth on Exhibit D
annexed hereto and made a part hereof
17.9 Tenant acknowledges that as part of the consideration for this
Lease, and in order not to interfere with the rights of other tenants or other
tenants' quiet enjoyment of the common areas of the Building and otherwise
prevent Landlord from performing its services without causing increases to the
cost of such services, Tenant agrees that it shall not permit its
25
30
employees to congregate in hallways or elevators, shall not permit its employees
to create an unsightly condition in or about any passageway from the Building or
the common areas or to the parking lot/deck, with regard to smoking, including
the disposal of cigarettes, in the courtyard and/or outer areas adjacent to the
Building and will otherwise require its employees to act and conduct themselves
in the common areas in such a manner as will not disturb other tenants or the
use and enjoyment by other tenants of the Building.
17.10 Landlord, at its expense, shall maintain an in-door air quality
monitoring program to monitor the air quality of the Building and shall
effectuate such remedies as are required to insure that the air quality of the
Building satisfies current applicable governmental standards.
17.11 If due to the Landlord's failure to provide any service required
to be furnished hereby by Landlord with respect to the maintenance, repair and
operation of the Demised Premises or any portion thereof are not habitable and
therefore not usable for its permitted purpose and Tenant can not conduct
business in the Demised Premises, which condition continues for (i) ten (10)
continuous business days if such failure is not within Landlord's sole control
or (ii) five (s) continuous business days if such failure is within Landlord's
sole control, after Landlord's receipt of written notification from Tenant
stating with specificity the nature of the problem (which time shall be extended
by reason of force majeure which includes but is not limited to strikes,
lock-outs, labor controversy, inability to obtain supplies, acts of God or other
causes beyond Landlord's control other than purely reasonable economic
considerations under the circumstances), and which condition is not caused by
the negligent or intentional acts or failure to act of Tenant, then Tenant shall
be entitled to xxxxx its fixed rent and Operating Expenses and Tax escalations
after the condition herein described continues as follows:
For each calendar day commencing after the passage of such ten (10)
business days after Landlord's receipt of written notice of such failure, Xxxxx
shall be entitled to one (1) additional day of rent abatement prorated on the
basis of thirty (30) day calendar month, which abatement shall run from the date
of the next monthly payment of fixed rent which was otherwise due under Article
1.4. Such prorated one (1) day abatement shall continue for each additional
calendar day during which the such failure continues. An event is not within
Landlord's control if, for reasons beyond Landlord's control, Landlord can not
reasonably purchase or obtain the necessary equipment to correct any such
failure. Landlord shall diligently proceed to repair any failure as set forth in
this Section within five (5) days of written notice from Tenant. Landlord and
Tenant agree that none of the abatement aforesaid shall apply to Tenant's
obligation to pay additional rent. For the purposes of the right of abatement,
such right shall only exist when the Demised Premises are untenable because of
failures in all the elevators, HVAC, electric and/or plumbing systems. Further,
the Demised Premises must not only be untenable but, in fact, the Tenant must
not have used the Demised Premises during any period in which the abatement is
claimed. The foregoing shall not preclude any other remedy available to Tenant.
26
31
ARTICLE 18
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
18.1 All walls, windows, and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls and doors, and any core
corridor entrance), except the inside surfaces thereof, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, piped conduits, fan room, ducts, electric or
other utilities, sinks or other Building facilities, and the use thereof, as
well as access thereto through the Demised Premises for the purposes of
operation, maintenance, decoration, and repair are reserved to Landlord. Upon
Landlord's reasonable and prompt approval, Tenant may have access to areas
adjacent to the Demised Premises for the installation of voice, data and
security wiring provided such wiring is removed by Tenant at the expiration of
this Lease, unless otherwise agreed upon by Landlord and Tenant in writing.
18.2 Tenant shall permit Landlord to have access to the Demised
Premises to install use, and maintain pipes, ducts, and conduits within the
demising walls, bearing columns, and ceilings above the Demised Premises.
18.3 Landlord or Landlord's agent shall have the right upon advance
reasonable request (except in emergency under clause (ii) hereof) to enter
and/or pass through the Demised Premises or any part thereof, at reasonable
times during Tenant's business hours, (i) to examine the Demised Premises and to
show them to the fee owners, holders of superior mortgages, or prospective
purchases or mortgagees of the Building as an entirety, and (ii) for the purpose
of making such repairs or changes or doing such repainting in or to the Demised
Premises or its facilities, as may be provided for by this Lease or as may be
mutually agreed upon by the parties or as Landlord may be required to make by
law or in order to repair and maintain said structure or its fixtures or
facilities. Landlord shall be allowed to take all materials into and upon the
Demised Premises that may be required for such repairs, changes, repainting, or
maintenance, without liability to Tenant but Landlord shall not unreasonably
interfere with Tenant's use of the Demised Premises. Landlord shall also have
the right to enter on and/or pass through the Demised Premises, or any part
thereof, at such times as such entry shall be required by circumstances of
emergency affecting the Demised Premises or the Building.
18.4 During the period of six (6) months prior to the Expiration Date,
Landlord may exhibit the Demised Premises to prospective tenants.
18.5 Landlord reserves the right, at any time after completion of the
Building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well as
in or to the street entrances, halls, passages, elevators, escalators, and
stairways thereof, as it may deem necessary or desirable, provided, however,
that such changes shall not reduce the size of the Demised Premises.
18.6 Landlord may adopt any name for the Building. Landlord reserves
the right to change the name or address of the Building at any time.
27
32
18.7 Subject to applicable law and the limitations on Landlord's
Services and HVAC as set forth in Article 16 and 17, the Building shall be
accessible twenty-four (24) hours a day, seven (7) days a week.
ARTICLE 19
NOTICE OF ACCIDENTS
19.1 Tenant shall give notice to Landlord, promptly after Tenant learns
thereof, of (i) any accident in or about the Demised Premises for which Landlord
might be liable; (ii) all fires in the Demised Premises; (iii) all damage to or
defects in the Demised Premises, including the fixtures, equipment, and
appurtenances thereof, for the repair of which Landlord might be responsible;
and (iv) all damage to or defects in any parts or appurtenances of the
Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator, and other systems located in or passing through the Demised Premises
or any part thereof.
ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
20.1 Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by then or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage, or loss,
unless caused by or due to the negligence or willful act or omission of
Landlord, its agents, contractors or employees.
20.2 Tenant shall indemnify and save harmless Landlord and its agents
against and from (a) any and all claims (i) arising from (x) the conduct or
management of the Demised Praxes or of any business therein, or (y) any work or
thing whatsoever done, or any condition created (other than by Landlord for
Landlord's or Tenant's account) in or about the Demised Premises during the term
of this Lease or during the period of time, if any, prior to the day the Tenant
takes occupancy of the Demised Premises that Tenant may have been given access
to the Demised Premises, or (ii) arising from any negligent or otherwise
wrongful act or omission of Tenant or any of its subtenants, invitees or
licensees or its or their employees, agents, or contractors, and (b) all costs,
expenses, and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon. In case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant upon notice from
Landlord, shall resist and defend such action or proceeding.
20.3 Landlord shall indemnify and save harmless Tenant and its agents
against and from (a) any and all claims (i) arising from (x) the conduct or
management of the Building by Landlord and/or its agents or (y) any work or
thing whatsoever done, or any condition created (other than by Tenant for
Landlord's or Tenant's account) in or about the Building caused by Landlord or
its agents during the term of this Lease, or (iii) arising from any negligent or
otherwise wrongful act or omission of Landlord or any of its employees, agents,
or contractors, and (b) all costs, expenses, and liabilities incurred in or in
connection with each such claim or
28
33
action described in (a) above or proceeding brought thereon. In case any action
or proceeding be brought against Tenant by reason of any such claim, Landlord,
upon notice from Tenant shall resist and defend such action or proceeding.
20.4 Except as otherwise expressly provided in this Lease, this Lease
and the obligations of Tenant hereunder shall be in no wise affected, impaired
or excused because Landlord is unable to fulfill or is delayed in fulfilling,
any of its obligations under this Lease by reason of strike, other labor
trouble, governmental preemption or priorities or other controls in connection
with a national or other public emergency or shortages of fuel supplies or labor
resulting therefrom, or other like cause beyond Landlord's reasonable control.
ARTICLE 21
DESTRUCTION OR DAMAGE
21.1 If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article hereinafter provided), Landlord shall repair the
damage and restore and rebuild the Building and/or the Demised Premises, at its
expense, with reasonable dispatch after notice to it of the damage or
destruction; provided, however, that Landlord shall not be required to repair or
replace any of the Tenant's Property.
21.2 If the Building or the Demised Premises shall be partially damaged
or partially destroyed by fire or other cause not attributable to the fault or
negligence of Tenant, its agents, or employees, the rents payable hereunder
shall be abated to the extent that the Demised Premises shall have been rendered
untenantable and for the period from the date of such damage or destruction to
the date the damage shall be repaired or restored. If the Demised Premises or a
major part thereof shall be totally (which shall be deemed to include
substantially totally) damaged or destroyed or rendered completely (which shall
be deemed to include substantially completely) untenantable on account of fire
or other cause, the rents shall xxxxx as of the date of the damage or
destruction and usual Landlord shall repair, restore, and rebuild the Building
and the Demised Premises, provided, however, that should Tenant reoccupy a
portion of the Demised Premises during the period of restoration work is taking
place and prior to the date that the same are made completely tenantable, rents
allocable to such portion shall be payable by Tenant from the date of such
occupancy.
21.3 If the Building or the Demised Premises shall be totally damaged
or destroyed by fire or other cause, or if the Building shall be so damaged or
destroyed by fire or other cause (whether or not the Demised Premises are
damaged or destroyed) as to require a reasonably estimated expenditure of more
than twenty-five percent (25%) of the full insurable value of the Building
immediately prior to the casualty then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within one hundred
eighty (180) days after the date of the casualty. In case of any damage or
destruction mentioned in this Article, Tenant may terminate the Lease by notice
to Landlord, if Landlord has not completed the making of the required repairs
and restored and rebuilt the Building and the Demised Premises within eight (8)
months from the date of such damage or destruction, or within such period after
such
29
34
date (not exceeding six (6) months) as shall equal the aggregate period Landlord
may have been delayed in doing so by adjustment of insurance, labor trouble,
governmental controls, act of God, or any other cause beyond Landlord's
reasonable control.
21.4 No damages, compensation, or claim shall be payable by Landlord
for inconvenience, loss of business, or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy during such time that Tenant is able to use the
Demised Premises during Landlord's restoration.
21.5 Landlord will not carry insurance of any kind on Tenant's
Property, and, except as provided by law or by reason of its fault or its breach
of any of its obligations hereunder, shall not be obligated to repair any damage
thereto or replace the same; to the extent that Tenant shall maintain insurance
on Tenant's Property, Landlord shall not be obligated to repair any damage
thereto or replace the same.
21.6 The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and any law of the State of New Jersey providing for
such a contingency in the absence of an express agreement, and any other law of
like import, now of hereafter in force, shall have no application in such case.
21.7 If the Demised Premises and/or access thereto become partially or
totally damaged or destroyed by any casualty not insured against, then Landlord
shall have the right to terminate this Lease upon giving the Tenant thirty (30)
days notice and upon the expiration of said thirty (30) day notice period this
Lease shall terminate as if such termination date were the Expiration Date.
ARTICLE 22
EMINENT DOMAIN
22.1 If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use of
purpose, this Lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title on such taking (which date is
herein also referred to as the "date of the taking"), and the rents shall be
prorated and adjusted as of such date.
22.2 If any part of the Building shall be so taken, this Lease shall be
unaffected by such taking, except that Tenant may elect to terminate this Lease
in the event of a partial taking, if the area of the Demised Premises, or
parking areas or common areas, shall not be reasonably sufficient for Tenant to
continue feasible operation of its business. Tenant shall give notice of such
election to Landlord not later than thirty (30) days after the date of such
taking. Upon the giving of such notice to Landlord, this Lease shall terminate
on the date of service of notice and the rents apportioned to the part of the
Demised Premises so taken shall be prorated and adjusted as of the date of the
taking and the rents apportioned to the remainder of the
30
35
Demised Premises shall be prorated and adjusted as of such termination date.
Upon such partial taking and this Lease continuing in force as to any part of
the Demised Premises, the rents apportioned to the part taken shall be prorated
and adjusted as of the date of taking and from such date the fixed rent shall be
reduced to the amount apportioned to the remainder of the Demised Premises and
additional rent shall be payable pursuant to Article 5 according to the rentable
area remaining.
22.3 Except as specifically set forth in Section 22.4. hereof, Landlord
shall be entitled to receive the entire award in any proceeding with respect to
any taking provided for in this Article without deduction therefrom for any
estate vested in Tenant by this Lease, and Tenant shall receive no part of such
award. Tenant hereby expressly assigns to Landlord all of its right, title, and
interest in or to every such award. Tenant may claim a condemnation award for
the unamortized portion of the cost incurred by Tenant in connection with any of
Tenant's Property installed pursuant to this Lease. In addition, Tenant may xxx
for relocation expenses and loss of profit and good will.
22.4 If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the term of this Lease,
Tenant shall be entitled, except as hereinafter set forth, to receive any award
which does not serve to diminish Landlord's award in any respect and, if so
awarded, for the taking of Tenant's Property and for moving expenses, and
Landlord shall be entitled to receive that portion which represents
reimbursement for the cost of restoration of the Demised Premises. This Lease
shall be and remain unaffected by such taking and Tenant shall remain
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay in full the fixed rent and
additional rent when due. If the period of temporary use or occupancy of the
Demised Premises (or a part thereof) shall be divided between Landlord and
Tenant so that Tenant shall receive so much thereof as represents the period
prior to the Expiration Date and Landlord shall receive so much thereof as
represents the period subsequent to the Expiration Date. All moneys received by
Tenant as, or as part of, an award for temporary use and occupancy for a period
beyond the date to which the rents hereunder have been paid by Tenant shall be
received, held, and applied by Tenant as a trust fund for payment of the rents
falling due hereunder.
22.5 In the event of any taking of less than the whole of the Building
which does not result in a termination of this Lease, or in the event of a
taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, shall proceed with reasonable diligence to repair, alter, and restore
the remaining parts of the Building and the Demised Premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and Demised Premises provided that
Landlord's liability under this Section 22.5 shall be limited to the net amount
(after deducting all costs and expenses, including, but not limited to, legal
expenses incurred in connection with the eminent domain proceeding) received by
Landlord as an award arising out of such taking. If such taking occurs within
the last three (3) years of the term of this Lease, Landlord shall have the
right to terminate this Lease by giving the Tenant written notice to such effect
within ninety (90) days after such taking, and this Lease shall then expire on
that effective date stated in the notice as if that were the Expiration
31
36
Date, but the fixed rent and the additional rent shall be prorated and adjusted
as of the date of such taking.
22.6 Should any part of the Demised Premises be taken to effect
compliance with any law or requirement of public authority other than in the
manner hereinabove provided in this Article then, (i) if such compliance is the
obligation of Tenant under this Lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this Lease, the
fixed rent hereunder shall be reduced and additional rents under Article 5 shall
be adjusted in the same manner as is provided in Section 22.2 according to the
reduction in rentable area of the Demised Premises resulting from such taking.
ARTICLE 23
SURRENDER
23.1 On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any reentry by Landlord upon the Demised
Premises, Tenant shall quit and surrender the Demised Premises to Landlord in
good order, condition, and repair, except for ordinary wear and tear and such
damage or destructions as Landlord is required to repair or restore under this
Lease, and Tenant shall remove all of Tenant's Property therefrom except as
otherwise expressly provided in this Lease. At the time of surrender, or earlier
termination of this Lease, the Demised Premises shall be in the same state as
existed as of the completion of Landlord's Work ordinary wear and tear excepted.
Any Tenant Changes, alterations or improvements, all of which must be done in
accordance with Article 12 shall be removed, except as may otherwise have been
provided by Landlord at the time it exercised its consent in connection with
such Tenant Changes pursuant to Article 12. Landlord and Tenant agree that a
minimum of ninety (90) days prior to the Expiration Date of this Lease, Landlord
shall walk through the Demised Premises with Tenant and create a punchlist of
all restoration which shall be required to be completed by Tenant by the
Expiration Date. Failure by Landlord and Tenant to walk through the Demised
Premises ninety (90) days prior to the Expiration Date of this Lease shall not
relieve Tenant of any restoration obligations otherwise required pursuant to
this Lease. However, if Tenant gives Landlord notice that it desires to walk
through the Demised Premises and identify the restoration required as set forth
above and Landlord does not fulfill its obligation to walk through the Demised
Premises, Tenant will not be relieved of any of its restoration obligations but
will not be deemed in holdover as set forth below while it performs such
restoration. Thereafter, Tenant may request a written estimate from Landlord for
the cost of all restoration required pursuant to this Lease. Landlord and Tenant
acknowledge that Landlord, prior to the Expiration Date, will have already
notified Tenant of its restoration obligations pursuant to a restoration
agreement letter dated September 12, 1966 and Article 12 of the Lease, and, as a
result, notwithstanding the ninety (90) day time period set forth above, it
shall be Tenant's obligation to ensure that Tenant has enough time after the
Landlord and Tenant walk through the Demised Premises, if Tenant will be
performing such restoration prior to the Expiration Date of the Lease. The cost
contained in such estimate shall be commercially reasonable and where possible,
Landlord will competitively bid the work. In lieu of restoring the Demised
Premises as required pursuant to this Lease, Tenant may, at its option, pay
Landlord,
32
37
prior to the Expiration Date of the Lease, the cost of such restoration as set
forth in Landlord's estimate. If Tenant fails to perform any restoration
required of it under this Lease or fails to pay Landlord for the cost of any
restoration required on or before the last day of the term of this Lease or upon
any earlier termination, Tenant shall be deemed a holdover Tenant under Article
40 of this Lease until such time as Tenant has completed such restoration. For
the first fifteen (15) days of holdover as set forth above, Tenant shall only be
required to pay holdover charges on a per diem basis. After the expiration of
fifteen (15) days the Tenant shall be in subject to holdover charges on a
monthly basis. If, unknowingly, Tenant incorrectly performs any of the
restoration required, Landlord shall notify Tenant and Tenant shall have fifteen
(15) days to correct such error. If Tenant fails to correct such error within
the thirty (30) day period, Tenant shall be subject to holdover from the day on
which Tenant received Landlord's notice of the incorrect restoration.
ARTICLE 24
CONDITIONS OF LIGATION
24.1 This Lease and the term and estate hereby granted are subject to
the limitation that whenever Tenant shall make an assignment of the property of
Tenant for the benefit of creditors, or shall file a voluntary petition under
any bankrupt or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed by or against Tenant under
the reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like imports or whenever a petition shall be filed by
Tenant under the arrangement provisions of any law of like import, whenever a
permanent receiver of Tenant or of or for the property of Tenant shall be
appointed, then Landlord, (a) at any time of receipt of notice of the occurrence
of any such event, or (b) if such event occurs without the acquiescence of
Tenant, at any time after the event continues for thirty (30) days, Landlord may
give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 26.
24.2 This Lease and the term and estate hereby granted are subject to
the further limitation that:
(a) Whenever Tenant shall default in the payment of installment of
fixed rent, or in the payment of any additional rent or any other charge payable
by Tenant to Landlord, or any day upon which the same ought to be paid, and such
default shall continue for five (5) business days after written notice thereof;
or
(b) Whenever Tenant shall do or permit anything to be done,
whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
written notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of thirty (30) days and
the
33
38
continuance of which for the period required for cure will not subject Landlord
to risk of criminal liability or termination of any foreclosure of any superior
mortgage if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenants intention to duly institute all steps necessary to remedy
such situation; (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same; (iii) complete such remedy within such time after the date of giving of
said notice to Landlord as shall reasonably be necessary; or
(c) Whenever any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, film, or corporation other than Tenant, except as expressly permitted by
Article 8; or
(d) Whenever Tenant shall abandon the Demised Premises (unless as
a result of a casualty), or
(e) If Tenant shall default in the timely payment of rent or
additional rent and any such default shall continue to be repeated for two (2)
consecutive months or for a total of four (4) months in any period of twelve
(12) months, or more than three (3) times in any six (6) month period, then,
notwithstanding that such defaults shall have each been cured within the
applicable period, any similar default shall be deemed to be deliberate and
Landlord may thwarter serve a notice of termination upon Tenant without
affording to Tenant opportunity to cure such default;
then, and in any of the foregoing cases, this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced, shall,
if the Landlord so elects, terminate upon ten (10) days written notice by
Landlord to Tenant of Landlord's election to terminate the Lease and the term
hereof shall expire and come end on the date fixed in such notice, with the same
effect as if that day were the Expiration Date, but Tenant shall remain liable
for the rent and additional rent which subsequently accrues and for damages as
provided in Article 26.
ARTICLE 25
RE-ENTRY BY LANDLORD
25.1 If Tenant shall default in the payment of any installment of fixed
rent, or of any installment of additional rent, on any date upon which the same
ought to be paid and if such default shall continue for five (5) days after
written notice thereof, or if this Lease shall expire as provided in Article 24,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter re-enter the Demised Premises, or any part thereof, in the name of
the whole, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold, and enjoy the
Demised Premises again as and of its first estate and interest therein. The word
"re-enter," as herein used, is not restricted to its technical legal meaning. In
the event of any termination of this Lease under the provisions of Article 24 or
if Landlord shall
34
39
re-enter the Demised Premises under the provisions of this Article or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord
the fixed rent and additional rent payable by Tenant to Landlord up to the time
of such termination of this Lease, or of such recovery of possession or the
Demised Premises by Landlord, as the case may be, and shall also pay to Landlord
damages as provided in Article 26.
25.2 In the event of a breach or threatened breach by Landlord or
Tenant of any of their respective obligations under this Lease, either Landlord
or Tenant, as the case may be, shall also have the right of injunction. The
special remedies hereunder are cumulative and are not intended to be exclusive
of any other remedies or means of redress to which the parties may lawfully be
entitled at any time.
25.3 If this Lease shall terminate under the provisions of Article 24,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article, or in the event of any termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security, or otherwise, but such moneys shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant under Article 26 or pursuant to law.
ARTICLE 26
DAMAGES
26.1 If this Lease is terminated under the provisions of Article 24, or
if Landlord shall re-enter the Demised Premises under the provisions of Article
25, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action of any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either
(a) A sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be, represents the
then value of the excess, if any, of (i) the aggregate of the fixed rent and the
additional rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was payable for
the year immediately preceding such termination) for the period commencing with
such earlier termination of this Lease or the date of any such re-entry, as the
case may be, and ending with the Expiration Date, had this Lease not so
terminated or had Landlord not so re-entered the Demised Premises, over (ii) the
aggregate rental value of the Demised Premises for the same period, or
(b) Sums equal to the fixed rent and the additional rent (as above
presumed) payable hereunder which would have been payable by Tenant had this
Lease not so terminated, or had Landlord not so re-entered the Demised Premises,
payable upon the due dates
35
40
therefor specified herein following such termination or such re-entry and until
the Expiration Date, provided, however, that if Landlord shall relet the Demised
Premises during said period, Landlord shall credit Tenant with the net rents
received by Landlord from such reletting, such net rents to be determined by
first deducting from the gross rents as and when received by Landlord from such
reletting, the expenses incurred or paid by Landlord in terminating this Lease
or in reentering the Demised Premises and in securing possession thereof, as
well as the expenses of reletting, including altering and preparing the Demised
Premises for new tenants, brokers' commissions, and all other expenses properly
chargeable against the Demised Premises and the rental therefrom; it being
understood that any such reletting may be for a period shorter or longer than
the remaining term of this Lease; but in no event shall Tenant be entitled to
receive any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this Subsection to a credit in respect of any net rents from
a reletting, except to the extent that such net rents are actually received by
Landlord. If the Demised Premises or any part thereof should be relet in
combination with other space, then proper apportionment on a square foot basis
shall be made of the rent received from such reletting and of the expenses of
reletting.
If the Demised Premises or any part thereof to be relet by Landlord for
the unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court commission or tribunal the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting.
26.2 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provisions of Article 24, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to seek and obtain as
liquidated damages by reason of the termination of this Lease or re-entry on the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 26.1.
26.3 In addition to the foregoing and without regard to whether this
Lease is terminated Tenant shall pay to Landlord upon demand, all costs and
expenses incurred by Landlord, including reasonable attorney's fees, with
respect to any lawsuit instituted or defended or any action taken by Landlord to
enforce all or any of the provisions of this Lease to the extent Landlord is
successful. Landlord agrees that, if, after implementing proceedings or
litigation, Tenant is successful therein, then Landlord shall pay Tenant's
reasonable costs and expenses, including reasonable attorney fees.
36
41
26.4 Landlord agrees that if it fails to perform any service required
of it, Tenant shall notify Landlord in writing of such failure. Landlord shall
then have thirty (30) days within which to cure such default. Landlord shall
diligently and continually proceed to cure any such default within five (5) days
of written notice from Tenant. Landlord agrees to advise Tenant within five (5)
business days of Landlord's efforts to cure such default. If Landlord fails to
cure such default within the thirty (30) day period, Tenant shall be entitled,
but not obligated, to perform such service and invoice Landlord for the cost
thereof. If Landlord fails to reimburse Tenant, Tenant shall be entitled to
institute litigation against Landlord. If Tenant is successful in such
litigation, Tenant shall also be entitled to reasonable costs and expenses
including attorney's fees in connection with such litigation. Tenant agrees that
it shall not exercise the right of any offset against rent for any sums due it
pursuant to this Section until such time as Tenant has obtained a judgment
against Landlord.
ARTICLE 27
WAIVERS
27.1 Tenant, for Tenant, and on behalf of any and all persons claiming
through or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this Lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as herein provided.
27.2 In the event that Tenant is in arrears in payment of fixed rent or
additional rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
it sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited.
27.3 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either 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 or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto.
27.4 The provisions in Articles 16 and 17 shall be considered express
agreements governing the services to be furnished by Landlord, and Tenant agrees
that any laws and/or requirements of public authorities, now or hereafter in
force, shall have no application in connection with any enlargement of
Landlord's obligations with respect to such services.
37
42
ARTICLE 28
NO OTHER WAIVERS OR MODIFICATIONS
28.1 The failure of either party to insist in any one or more instances
upon the strict performance of any one or more of the obligations of this Lease,
or to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act, or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such executory agreement is in writing, refers expressly to this
Lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, or termination of effectuation of the
abandonment is sought.
28.2 Without limiting Section 28.1, the following provisions shall also
apply:
(a) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by Landlord. The
delivery of keys to an employee of Landlord or of its agent shall not operate as
a termination of this Lease or a surrender of the Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised Premises for Tenant's
account, Landlord or its agent is authorized to receive said keys for such
purposes without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Tenant from any liability for loss or damage to any
of Tenant's property in connection with such subletting.
(b) The receipt by Landlord of rent with knowledge of breach of
any obligation of this Lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount
than the correct fixed rent or additional rent due hereunder shall be deemed to
be other than a payment on account nor shall any endorsement or statement on any
check or any letter accompanying any check or payment be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance or pursue any other remedy in this Lease
or at law provided.
ARTICLE 29
CURING TENANT'S DEFAULTS
29.1 If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice, in a case of emergency, and in any other
case, only if such default continues after the expiration of (i) ten (10) days
from the date Landlord gives Tenant notice of intention so to do, or (ii) the
38
43
applicable grace period provided in Section 24.2 or elsewhere in this Lease for
cure of such default, whichever occurs later.
29.2 Bills, invoices and purchase orders for any and all costs,
charges, and expenses incurred by Landlord in connection with any such
performance by it for the account of Tenant, including reasonable counsel fees,
involved in collecting or endeavoring to collect the fixed rent or additional
rent or any part thereof, or enforcing or endeavoring to enforce any rights
against Tenant, under or in connection with this Lease, or pursuant to law,
including any such cost, expense, and disbursement involved in instituting and
prosecuting summary proceedings, may be sent by Landlord to Tenant or
immediately, at Landlord's option, and, shall be due and payable in accordance
with the terms of such bills.
ARTICLE 30
BROKER
30.1 Tenant covenants, warrants, and represents that than was no broker
except XXXXXXXX, XXXXXXXX & XXXXXXX ASSOCIATES and PALADIN GROUP (collectively
"Brokers") instrumental in consummating this Lease and that no conversations or
negotiations were had with any broker except Broker concerning the renting of
the Demised Praises. Tenant agrees to hold Landlord harmless against any claims
for a brokerage commission arising out of any conversations or negotiations had
by Tenant with any broker except Broker. Landlord agrees to pay Broker pursuant
to a separate agreement but such payment shall not exceed a 5% commission as
described in such agreement.
ARTICLE 31
NOTICES
31.1 Any notice, statement, demand, or other communications required or
permitted to be given, rendered, or made by either party to the other, pursuant
to this Lease or pursuit to say applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made, if
sent by overnight mail courier, addressed to the other party at the address set
forth below and shall be deemed to have been given, rendered, or made on the
date following the date of mailing. Either party may, by notice as aforesaid,
designate a different address or addresses for notices, statements, demands, or
other communications intended for it. In the event of the cessation of any mail
delivery for any reason, personal delivery shall be substituted for the
aforedescribed method of serving notices.
Landlord's Notice:
Xxxxxxx Property Management
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx, Esq.
39
44
Tenant's Notice:
AT&T Paradyne
0000 000xx Xxxxxx Xxxxx
X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000-00000
Attn: Red Estate Manager
ARTICLE 32
ESTOPPEL CERTIFICATE
32.1 Tenant agrees, when requested by Landlord, to execute and deliver
to Landlord a statement certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the same is in full
force and effect as modified and stating the modifications), certifying the
dates to which the fixed rent and additional rent have been paid, whether any
dispute exists with respect thereto and stating whether or not, to Tenant's best
knowledge, Landlord is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which Tenant may have
knowledge, it being intended that any such statement delivered pursuant hereto
may be relied upon by others. Such statement shall be served upon Landlord by
Tenant within ten (10) days of Landlord's request.
ARTICLE 33
ARBITRATION
INTENTIONALLY OMITTED
ARTICLE 34
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.1 Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease. It is
understood and agreed that all understandings and agreements heretofore had
between the parties are merged in the Lease, which alone fully and completely
express their agreements and that the same are entered into after full
investigation, neither party relying upon any statement or representation not
embodied in the Lease made by the other.
34.2 If any of the provisions of this Lease, or the application thereof
to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
40
45
34.3 This Lease shall be governed in all respects by the laws of the
State of New Jersey.
ARTICLE 35
SECURITY
35.1 Tenant shall deposit with Landlord the sum of $135,416.66 upon the
execution of this Lease. Said deposit (sometimes referred to as the "Security
Deposit") shall be held by Landlord as security for the faithful performance by
Tenant of all the terms of the Lease by said Tenant to be observed and
performed. The Security Deposit shall not and may not be mortgaged, assigned,
transferred, or encumbered by Tenant, without the written consent of Landlord,
and any such act on the part of Tenant shall be without force and effect and
shall not be binding upon Landlord. If any of the fixed or additional rent
herein reserved or any other sum payable by Tenant to Landlord shall be overdue
and unpaid, or if Landlord makes payment on behalf of Tenant, or if Tenant shall
fail to perform any of the terms, covenants, and conditions of the Lease, then
Landlord may, at its option and without prejudice to any other remedy which
Landlord may have on account thereof, appropriate and apply the entire Security
Deposit or so much thereof as may be necessary to compensate Landlord toward the
payment of fixed or additional rent and any loss or damage sustained by Landlord
due to such breach on the part of Tenant, plus expenses; and Tenant shall
forthwith upon demand restore the Security Deposit to the original sum
deposited. The issuance of a warrant and/or the re-entering of the Demised
Premises by Landlord for any default on the part of Tenant or for any other
reason prior to the expiration of the term shall not be deemed such a
termination of the Lease as to entitle Tenant to the recovery of the Security
Deposit. If Tenant complies with all of the terms, covenants, and conditions of
the Lease and pays all of the fixed and additional rent and all other sums
payable by Tenant to Landlord as they fall due, the Security Deposit shall be
promptly returned in full to Tenant after the expiration of the term of the
Lease and Tenant's satisfaction of all its obligations accruing prior to the
Lease expiration date. In the event of bankruptcy or other creditor-debtor
proceedings against Tenant, the Security Deposit and all other securities shall
be deemed to be applied first to the payment of fixed and additional rent and
other charges due Landlord for all periods prior to the filing of such
proceedings. In the event of sale by Landlord of the Building, Landlord may
deliver the then balance of the Security Deposit to the transferee of Landlord's
interest in the Demised Premises and Landlord shall thereupon be discharged from
any further liability with respect to the Security Deposit and this provision
shall also apply to any subsequent transferees. No holder of a superior mortgage
to which the Lease is subordinate shall be responsible in connection with the
Security Deposit, by way of credit or payment of any fixed or additional rent,
or otherwise, unless such mortgagee actually shall have received the entire
Security Deposit.
ARTICLE 36
PARTIES BOUND
36.1 The obligation of this Lease shall bind and benefit the successors
and assigns of the parties with the same effect as if mentioned in each instance
where a party is
41
46
named or referred to, except that no violation of the provisions of Article 8
shall operate to vest any rights in any successor or assignee of Tenant and that
the provisions of this Article shall not be construed as modifying the
conditions of limitation contained in Article 24. However, the obligations of
Landlord under this Lease shall not be binding upon Landlord herein named with
respect to any period subsequent to the transfer of its interest in the Building
as owner or lessee thereof and in event of such transfer said obligations shall
thereafter be binding upon each transferee of the interest of Landlord herein
named as such owner or lessee of the Building, but only with respect to the
period ending with a subsequent transfer within the meaning of this Article.
Such transferee shall assumed all of Landlord's obligation to Tenant pursuant to
this Lease.
36.2 If Landlord shall be an individual, joint venture, tenancy in
common, partnership, unincorporated association, or other unincorporated
aggregate of individuals and/or entities or a corporation, Tenant shall look
only to such Landlord's estate and property in the Building (or the proceeds
thereof) and where expressly so provided in this Lease, to offset against the
rents payable under this Lease for the collection of a judgment (or other
judicial process) which requires the payment of money by Landlord in the event
of any default by Landlord hereunder. No other property or assets of such
Landlord shall be subject to levy, execution or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Demised Premises. Further, Tenant agrees that Landlord shall not be liable
to Tenant for any special, indirect, or consequential damages arising out of
Landlord's breach of this Lease.
ARTICLE 37
CONSENTS
37.1 Wherever it is specifically provided in this Lease that a party's
consent is not to be unreasonably withheld, a response to a request for such
consent shall also not be unreasonably delayed. If either Landlord or Tenant
considers that the other had unreasonably withheld a consent, it shall so notify
the other party within ten (10) days after receipt of notice of denial of the
requested consent or, in case notice of denial is not received, within twenty
(20) days after mailing its request for the consent.
ARTICLE 38
MORTGAGE FINANCING TENANT COOPERATION
38.1 In the event that Landlord desires to seek mortgage financing
secured by the Demised Premises, Tenant agrees to cooperate with Landlord in the
making of any application(s) by Landlord for such financing including the
delivery to Landlord's mortgage broker or mortgagee, of such information as they
shall reasonably require with respect to Tenant's occupancy of the Demised
Premises, including, but not limited to the current financial statement of
Tenant, but Tenant shall not be required to deliver such information directly to
Landlord, all of the above to be at no cost and expense of Tenant. In the event
that Landlord's
42
47
mortgagee shall request changes to the within Lease in order to make same
acceptable to Landlord's mortgagee, Tenant agrees to consent to such changes,
provided such changes shall not affect the term of this case nor the financial
obligations of Tenant hereunder nor otherwise adversely affect Tenants rights
hereunder. Such changes must be agreed upon by both parties and shall be for
clarification purposes which are consistent with changes requested by financial
institutions which provide mortgages Class A office buildings similar to the
Building. The parties will agree to a request by such mortgagee for concurrent
notice of Landlord's defaults and reasonable opportunity to cure within
Landlord's grace period.
ARTICLE 39
ENVIRONMENTAL COMPLIANCE
39.1 Tenant shall at Tenant's sole cost and expense, comply with the
New Jersey Industrial Site Recovery Act and the regulations promulgated
thereunder (referred to as "ISRA") as same relate to Tenant's occupancy of the
Demised Premises, as well as all other state, federal or local environmental
law, ordinance, rule, or regulation either in existence as of the date hereof or
enacted or promulgated after the date of this Lease, that concern the
management, control, discharge, treatment and/or removal of hazardous discharges
or otherwise affecting or affected by Tenant's use and occupancy of the Demised
Premises. Tenant represents that Tenant's SIC number is 0355, and does not
subject it to ISRA. Tenant shall at Tenant's own expense, make all submissions
to, provide all information to, and comply with all requirements of the Bureau
of Industrial Site Evaluation (the "Bureau") of the New Jersey Department of
Environmental Protection ("NJDEP"). Should the Bureau or any other division of
NJDEP, pursuant to any other environmental law, rule, or regulation, determine
that a cleanup plan be prepared and that a cleanup be undertaken because of any
spills or discharge of hazardous substances or wastes at the Demised Premises
which occur during the term of this Lease and were caused by Tenant or its
agents or contractors, then Tenant shall, at Tenant's own expense prepare and
submit the required plans and financial assurances, and carry out the approved
plans. In the event that Landlord shall have to comply with ISRA by reason of
Landlord's actions, Tenant shall promptly provide all information requested by
Landlord for preparation of non-applicability affidavits or a Negative
Declaration and shall promptly sign such affidavits when 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 of hazardous substances or wastes at the
Demised Premises which occur during the term of this lease and were caused by
Tenant or its agents or contractors, and from all fines, suits, procedures,
claims, and actions of any kind arising out of Tenant's failure to provide all
information, make all submission and take all actions required by the Bureau or
any other division of NJDEP. 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 at the Demised Premises which
occur during the term of this Lease and were caused by Tenant or its agents or
contractors. Tenant's failure to abide by the terms of this paragraph shall be
restrainable by injunction. Tenant shall have no responsibility to obtain a
"Negative Declaration" or "Letter of Non-Applicability" from the NJDEP if the
sole reason for obtaining same is in connection with a sale or other disposition
of the real estate by Landlord but Tenant agrees to cooperate with Landlord in
Landlord's effort to obtain same and shall perform at
43
48
Tenant's expense any clean up required by reason of Tenant's use and occupancy
of the Demised Premises. Landlord shall indemnify, defend, and save harmless
Tenant from all fines, suits, procedures, claims, and actions of any kind
arising out of or in any way connected with any spills or discharges of
hazardous substance or wastes at the Demised Premises, the Building or the
Landlord which occurred prior to the day the Tenant takes occupancy of the
Demised Premises and were not caused by Tenant and from all times, suits,
procedures, claims and actions of any kind arising out of or in any way
connected with any spills or discharges of hazardous substances or wastes at the
Demised Premises, the Building or the Landlord which occur during the term of
this Lease and were caused by Landlord or its agents or contractors, and from
all fines, suits, procedures, claims, and actions of any kind arising out of
Landlord's figure to provide all information, make all submission and take all
actions required by the Bureau or any other division of NJDEPE.
39.2 Landlord agrees that it shall use its best efforts to determine
whether any hazardous substances are present in or about the Demised Premises.
Landlord further agrees that if any such hazardous substances are discovered, it
shall remove such substance prior to Lease commencement at its sole cost and
expense. Tenant agrees that it shall maintain the Demised Premises and the
Building free from any hazardous substances or materials.
ARTICLE 40
HOLDING OVER
40.1 Tenant will have no right to remain in possession of all or part
of the Demised Praises after the expiration of the term. If Tenant remains in
possession of all or any part of the Demised Premises after the expiration of
the Lease, without the express consent of Landlord: (a) such tenancy will be
deemed to be a periodic tenancy from month-to-month only; (b) such tenancy will
not constitute a renewal or extension of this Lease for any further term; and
(c) such tenancy may be terminated by Landlord upon the earlier of (i) thirty
(30) days prior written notice, or (ii) the earliest date permitted by how. In
such event, monthly rent will be increased to an amount equal to 125% during
months 1 and 2; 150% during months 3 through 5; 175% during month 6 and 200%
thereafter, of the monthly rent payable during the last month of the term, and
any other sums due under this Lease will be payable in the amount and at the
times specified in this Lease. Such month-to-month tenancy will be subject to
every other term, condition, and covenant contained in this Lease. The
provisions of this Section shall not be construed to relieve Tenant from
liability to Landlord for damages resulting from any such holding over, or
preclude Landlord from implementing summary dispossess proceedings. Tenant
further acknowledges that its failure to perform any restoration required of it
under this Lease shall be deemed the same as its remaining in possession of the
Demised Premises after the explosion of the term, subjecting it to holdover rent
in accordance with this Article 40. Notwithstanding the foregoing, Landlord
agrees that Tenant may holdover for thirty (30) days after the Expiration Date
of this Lease without being liable to Landlord for damages resulting from
holdover or subject to summary dispossess proceeding provided Tenant pays
Landlord the holdover rent of 125% as set forth above.
44
49
ARTICLE 41
CERTAIN DEFINITIONS AND CONSTRUCTIONS
41.1 For the purpose of this Lease and all agreements supplemental to
this Lease, unless the context otherwise requires, the definitions set forth in
Exhibit F annexed hereto shall be utilized.
41.2 The various terms which are italicized and defined in other
Articles of this Lease or are defined in Exhibits annexed hereto, shall have the
meanings specified in such other Articles and such Exhibits for all purposes of
this Lease and all agreements supplemental thereto, unless the context shall
otherwise require.
41.3 The submission of this Lease for examination does not constitute a
reservation of, or option for, the Demised Premises, and this Lease becomes
effective as a Lease only upon execution and delivery thereof by Landlord and
Tenant.
41.4 The Article headings in this Lease and the Index prefixed to this
Lease are inserted only as a matter of convenience in reference and are not to
be given any effect whatsoever in construing this Lease.
ARTICLE 42
RELOCATION OF TENANT
INTENTIONALLY DELETED
ARTICLE 43
OPTION TO RENEW
43.1 Provided that Tenant is not then in default of the terms,
covenants, and provisions of this Lease beyond the lapse of any applicable cure
or grace periods, Landlord hereby grants to Tenant the right to renew the term
of this Lease for one (1) additional period of five (5) years (the "Renewal
Period") commencing on the day after the initial Expiration Date upon the same
terms and conditions as set forth in this Lease other than the fixed annual
rental which shall be the Fair Market Rental of the Demised Premises at the time
of the commencement of the Renewal Period, adjusting as necessary for the lapse
of time between the date of Tenant's notification of intent to exercise its
option to renew and the date on which the Renewal Period is scheduled to
commence. Said fixed annual rental shall be payable in equal monthly
installments in advance on the first day of each and every month of the Renewal
Period. Tenant shall exercise the within Option by giving written notice to
Landlord not later than nine (9) months prior to the initial Expiration Date,
TIME BEING OF THE ESSENCE. If Tenant fails to give such notice, Tenant will be
deemed to have waived such Renewal Option and the provisions of
45
50
this Section shall be null and void. Fair Market Value shall mean the rents
obtainable for comparable space in the Red Bank, New Jersey market area.
ARTICLE 44
RIGHT OF FIRST REFUSAL
44.1 Provided that Tenant is not then in default under the terms,
covenants and provisions of this Lease, Landlord hereby grants to Tenant the
right at any time during the term of this Lease to lease additional space on
floors 3 and 4 in the Building (hereinafter "Expansion Space") which right is
subject to the prior rights of existing tenants. For purposes of this Section,
"prior rights" of existing tenants shall include an existing tenant's right of
first refusal, an option to expand, an option to renew or a renewal of an
existing lease whether or not pursuant to an option. The right of First Refusal
is further subject to the following terms and conditions:
(a) Tenant shall deliver to Landlord written notice of its Section
("Tenant's Election") to lease the Expansion Space on or before thirty (30)
calendar days after receipt of Landlord's Notice of Negotiation/Intent to Lease
(as defined in Section (b) below).
(b) Landlord, within ten (10) days after receiving Tenant's
written request and at Landlord's election, may either give Tenant written
notice of (1) its intention to negotiate with a third party for the lease of
such Expansion Space, which notice shall contain the terms and conditions upon
which Landlord initially intends to offer the space to one or more third
parties, or (2) of an offer received from a third party to lease, which notice
shall contain the terms and conditions contained in said offer (collectively,
"Landlord's Notice of Negotiation/Intent to Lease"). For purposes hereof the
terms shall include rentable square footage and rate. If Tenant thereafter fails
to deliver to Landlord written notice of its Section to lease such space within
the applicable time periods set forth in Subsection (1) above and on the same
terms and conditions as contained in the Landlord's Notice, Landlord may proceed
to lease such Expansion Space free and clear of this Right of First Refusal. If
Tenant fails or refuses to so exercise its Rights of First Refusal within thirty
(30) days after Landlord's written notice to Tenant, Tenant shall be deemed to
have waived its option to lease such space, and this Article shall be null and
void and have no further force and effect with respect to such portion of the
Expansion Space.
(c) In the event Landlord does not demise the Expansion Space to a
third party upon substantially the same terms and conditions contained in
Landlord's Notice of Intent to Lease, Landlord shall provide notice to Tenant as
set forth above with respect to any subsequent negotiations or offer for said
space.
(d) If Tenant exercises its Right of First Refusal then except for
the rate, then all terms and conditions of this Lease shall apply, except as to
the fixed rent and the term of to expansion space. As to such term, no such term
shall be less than the term of this Lease. If any such terms is in excess of
this Lease, then the term of this Lease shall be deemed to have been extended
commensurate with the term of the Additional Space Lease pursuant to this
Section.
46
51
44.2 Tenant acknowledges that its Right of First Refusal shall not
apply in connection with the Lease currently being negotiated between Landlord
and AT&T for the balance of the 50,000 square feet of the Building.
ARTICLE 45
SATELLITE DISH
45.1 Permission is granted, free of rental charge, for the Tenant to
install one (1) satellite dish not to exceed two one-half (2 1/2) feet in
diameter nor protrude above the lowest part of the roof line by more than 4
feet, including all cable, wiring, conduits and related equipment necessary for
the reception (but not the transmission) of radio and satellite-generated
television transmissions (collectively the "Antenna") at the Demised Premises on
the roof of the Building, at Tenant's sole cost and expense, subject to the
following restrictions:
(a) The location and means of securing the Antenna must be
approved by Landlord or its designated agent, and such location shall be
selected with the goal of minimizing its visual impact. Roof penetration will
not be accepted except if performed by Landlord or its designated agent, all at
Tenant's sole cost and expense. Tenant shall be responsible for any damage to
the Building roof or any surrounding property resulting from the installation or
operation of the Antenna, including, but not limited to, damage resulting from
wind, ice or any other causes. The Antenna shall not damage the Building or the
system of communication devised by any other user authorized by Landlord or
users at neighboring properties. If such damage or interference shall occur,
Tenant shall correct same promptly.
(b) Prior to installation, Tenant must provide Landlord with a
copy of all zoning or use approvals which may be required, including, without
limitation, any Federal Communications Commission ("FCC") licenses or approvals.
Landlord agrees to reasonably cooperate with Tenant in such regard, all without
cost to Landlord.
(c) Tenant agrees to maintain the Antenna in a proper and safe
operating condition and shall procure separate liability insurance naming
Landlord as an additional insured.
(d) Tenant shall comply with all applicable codes, rules,
regulations and conditions of the FCC, Federal Aviation Agency, and local
governmental agencies, and shall pay for all legal engineering and other
expenses incident thereto including all matters relating to hearings pursuant to
the Municipal Land and Use Law.
(e) Installation of the Antenna shall be performed in a
responsible and workmanlike manner by a recognized professional spite dish
installer at Tenant's sole cost and expense, through or under the supervision of
Landlord. Prior thereto, Tenant shall provide complete structural details signed
and sealed by an appropriately licensed engineer of the State of New Jersey, as
well as a sketch of the roof showing the proposed location of the antenna and
all relevant distances and heights. Landlord's supervision fee and, if the
presence or advice of Landlord's building engineer is required, Landlord's
building engineer fee shall be reimbursed to Landlord by Tenant for actual time
spent by Landlord's architect and building engineer at
47
52
prevailing rates. Prior to installation, Tenant shall provide Landlord with a
copy of its FCC construction permit, license, or evidence of authority to
operate from this location. Landlord shall have final approval with respect to,
as well as the right to perform at Tenant's cost and expense, all roof
penetrations and repairs.
(f) Installations or substitutes shall meet all codes and shall be
made using Teflon wire (or by running wires through approved conduits),
rust-proof clamps, non-rustable hardware U-bolts, or other similar devices of
the highest quality commonly found in the industry, capable of the bearing of
the stress and strain of the installation without impairing use and occupancy of
the Building and without adverse aesthetic impact upon any portion of the
Demised Premises.
(g) Tenant shall be responsible for any costs associated with
furnishing electricity for the Antenna.
(h) Tenant shall not sublet, license or otherwise permit any third
party use of the Antenna.
(i) Access to the Antenna for inspection, servicing or any other
reason well only be allowed with prior permission and supervision by Landlord or
its agents and Tenant shall reimburse Landlord and/or its agents at prevailing
rates (during normal business hours) for time spent by Landlord and/or its
agents.
(j) Landlord reserves the right to require the removal of the
Antenna at such time as the Landlord may have made provisions for acceptable
alternative arrangements, subject to Tenant's consent as to what constitutes an
acceptable alternative arrangement, which consent shall not be unreasonably
withheld. Landlord shall provide Tenant with prior notice of the amount of time,
if any, satellite services would be interrupted and coordinate work with Tenant
to avoid interruption of Tenant's business.
(k) Tenant shall remove the Antenna and restore the roof to its
original condition at the earlier of Tenant's cessation of use of the Antenna or
the expiration of the term of this Lease or any renewal term thereof, at
Tenant's sole cost and expense, notwithstanding any other provision of the
Lease. The Antenna shall, at all times, remain the property of Tenant and Tenant
shall have the right to remove it at any time, subject to the terms and
conditions herein.
(l) Tenant acknowledges that it has been advised by Landlord that
a new roof was installed at the Building which is still the subject of a
manufacturers/installers warranty/guarantee. Tenant must install, maintain and
remove the Antenna in such a manner as to be consistent with said
warranty/guarantee and not perform or fail to perform any act which would void,
or cause to be voidable, Landlord's warranty/guarantee.
(m) Tenant shall be responsible for implementing appropriate
screening as required by Landlord.
(n) Tenant agrees to indemnify, defend and hold Landlord harmless
from any claim resulting from property damage or personal injury arising in
connection with the
48
53
installation, maintenance, existence or removal of the Antenna and shall carry
insurance to cover such liability and property damages.
ARTICLE 46
WAIVER OF DISTRAINT
46.1 Landlord hereby expressly waives any and all rights granted by or
under any present or future laws to levy or distrain for rent, in arrears, in
advance or both, on any goods, merchandise, equipment, fixtures (which Landlord
and Tenant agree are Tenant's Property), furniture or other personal property of
the Tenant (collectively defined for this Article only as "Tenant's Property"),
or any subtenant or licensee of Tenant except after Landlord has instituted a
legal action which permits the Landlord to levy or distrain on Tenant's
Property.
46.2 Tenant shall have the right to encumber and grant a security
interest in Tenant's Property in the Premises to a commercial bank trust
company, mutual savings bank savings and loan association or life insurance
company ("Lender"). Any Lender to which the Tenant shall encumber its interest
shall have the right, but only after thirty (30) days from written notice to the
Landlord, to sell and remove from the Premises the Tenant's Property to satisfy
the amount of the outstanding lien; provided, however, that the Lender shall
restore the Premises to a condition satisfactory to the Landlord and repair any
damage to the Premises caused by such removal. Landlord hereby agrees to execute
such agreements of subordination and/or collateral assignment, in a form and
consent reasonably acceptable to Landlord, as Tenant's lenders may require from
time to time, within ten (10) business days of Landlord's receipt of said
agreement.
49
54
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the date and year first above written.
WITNESS: LANDLORD:
SHAV ASSOCIATES,
a New Jersey General Partnership
------------------------------ --------------------------------
By: Xxxxxxxx Xxxxxxx
Title: General Partner
WITNESS: TENANT:
PARADYNE CORPORATION
a Delaware Corporation
------------------------------ --------------------------------
By: XXXXX X. XXXXXXXX
Title: Senior Vice President
55
EXHIBIT A
DESCRIPTION OF LAND
000 XXXXXX XXXXX
ALL that certain tract or parcel of land and premises, situate, lying and being
in the Township of Middletown, in the County of Monmouth, State of New Jersey,
more particularly described herein.
BEING known and designated as Lot 2 in Block 296, on a map entitled "Final Map
for the SHAV Corporation consisting of Lots 16, 16-D, 17, 18 and 19 in Block
000, Xxxxxxxxxx Xxx, Xxxxxxxx Xx." dated June 2, 1980 and filed December 1, 1980
in the Monmouth County Clerk's Office as Case 170-6.
BEING more particularly described in accord with said filed map as follows:
BEGINNING at the point of intersection of the northerly line of the Garden State
Parkway and the westerly line of Xxxxxx Drive as marked by a monument and
running thence:
1. North 52 degrees 20' 10" West for a distance of 185.59 feet to Garden
State Parkway Monument #A-165; thence
2. North 47 degrees 42' 50" West for a distance of 374.45 to Garden State
Parkway Monument #A-167; thence
3. North 34 degrees 29' 19" West for a distance of 90.96 feet to a
monument; thence
4. Norm 2 degrees 51' 30" West for a distance of 258.85 feet; thence
5. South 87 degrees 26' 27" East for a distance of 313.90 feet; thence
6. South 7 degrees 42' 18" West for a divorce of 34.64 feet; thence
7. South 82 degrees 17' 42" East for a distance of 265.00 feet to the said
westerly line of Xxxxxx Drive; thence
8. South 7 degrees 42' 18" West for a distance of 620.57 feet along the
said westerly line of Xxxxxx Drive to the place find point of
Beginning.
Being Xxx 00.00, Xxxxx 000, Xxx Xxx xx Xxxxxxxx of Middletown.
Subject to easements, restrictions and covenants of record and such state of
facts as an accurate survey may reveal.
X-0
00
XXXXXXX X
XXXXX PLAN
SEE ATTACHED
E-2
57
EXHIBIT C
HVAC SPECIFICATIONS
Perimeter baseboard electric heat, central high velocity fan system with Xxxxxx
Xxxxxxx muting boxes, featuring return heat of light recaptured. System utilizes
a minimum of 10% to a maximum of 100% fresh air to maintain no less than 68
degrees interior at zero degrees exterior, with a 15-mile per hour wind. Air
cooling shall maintain no more than 76 degrees F dry bulb with approximately 50%
relapse humidity when the outdoor conditions are 91 degrees F dry bulb. Duel
system - building standard. The above standard is for normal office use only
which shall be deemed to be one person for every, 200 sq. ft. in any given or
confined area which shall not include areas with special HVAC requirements such
as computer rooms, conference rooms, cafeterias, high density or excessive heat
producing equipment. Perimeter baseboard electric heat is used during the winter
operations and an air cooling system is utilized during summer operations. One
(1) diffuser per 250 sq. ft. of usable area. The foregoing in Landlord's
Building Standard HVAC and shall not apply to any special HVAC requirements
above Landlord's Building Standard such as computer rooms, conference rooms,
cafeterias, high density or excessive heat used during winter operations and air
cooling system. Any supplemental HVAC placed in the Demised Premises shall be
repaired and maintained by Landlord or Landlord's contractor at Tenant's sole
expense.
X-0
00
XXXXXXX X
CLEANING AND MAINTENANCE SPECIFICATIONS
Landlord will provide building standard cleaning services to the tenant area and
the ground floor lobby area in accordance with the following specifications:
1. GENERAL CLEANING
NIGHTLY
a. Empty all waste receptacles, removing waste to designated
central location for disposal.
b. Empty and wipe clean all ashtrays. Screen and clean all sand
urns.
c. Wash and disinfect all water coolers and drinking fountains.
d. Wipe clean fingermarks, smudges, etc. from all doors and wall
surfaces.
e. Clean all tenants interior stairways.
f. Replace plastic liners in all waste-disposal cans.
WEEKLY
a Hand-dust all office equipment, furniture, fixtures, including
panelling, shelving, window xxxxx, telephones, door louvers,
and all flat surfaces with a treated cloth or yard duster.
2. GROUP A - Ceramic tile, marble, tempo.
GROUP B - Linotile, asphalt, koroseal, plastic vinyl, rubber, wood, cork, or
other types of floors and base.
NIGHTLY
a. All floors in Group A to be swept and wet-mopped.
b. All floors in Group B to be dry mopped, using a "dustdown"
preparation, and spots to be removed by wet process.
PERIODIC
a. A wet mopping, waxing, buffing, stripping, or machine
scrubbing of the floors in Group B will be accomplished
whenever required to maintain a hard lustrous finish and will
be governed by the amount of wear due to weather and other
conditions.
X-0
00
0. VACUUMING
NIGHTLY
a. Vacuum once per week. Carpet-sweep four times per week all
rugs and carpeted areas, moving light furniture and office
equipment other than desks and file cabinets. Spot clean to
remove soluble spots which safely respond to standard spotting
procedures without risk of injury to color or fabric.
4. HIGH DUSTING
PERIODIC
a. Dust all closet shelving and wash all closet floors when
accessible, monthly.
b. Damp dust all pictures, charts, graphs, etc., not reached in
nightly cleaning, quarterly.
c. Dust clean all vertical surfaces such as walls, partitions,
doors, door bucks, and other surfaces not reached in nightly
cleaning, quarterly.
d. Damp dust ceiling air conditioning diffusers, wall grills,
door louvers, registers, and venetian blinds, quarterly.
e. Dust exterior of light fixtures, annually.
5. WASHROOMS AND TOILETS
NIGHTLY
a. Sweep, mop, rinse, and dry floors. Polish mirrors and
bright-work. Clean enameled surfaces.
b. Wash and disinfect basins, urinals, and bowls using scouring
powder to remove stains, making certain to clean undersides of
rims of urinals and bowls.
c. Wash and disinfect both sides of all toilet seats.
d. Supply and service all toilet tissue, soap, towns, and
sanitary napkins. Sanitary napkins will be supplied in coin
operated dispensers.
e. All wash cans and all receptacles are to be emptied and new
plastic liners installed.
f. Hand dust and wash clean all partitions, tile walls,
dispenses, and receptacles in lavatories and vanity area.
g. Empty and clean sanitary disposal receptacles.
E-5
60
WEEKLY
a Wash down walls in washrooms and stalls, from trim to floor.
6. ELEVATORS
NIGHTLY
a. Clean the floor in accordance with specifications outlined
above based upon the type of flooring installed. The doors,
surfaces, and fixtures shall be dusted daily and damp wiped
weekly.
7. GLASS
PERIODIC
a. Clean both sides of all lobby glass including the building
entrance doors, nightly
b. Clean all perimeter windows quarterly.
c. Clean glass partitions, doors, and furniture once every six
months (limited to reasonable quantities).
8. MISCELLANEOUS
a. Check all stairwells and landings nightly throughout entire
demised area, and keep in clean condition. All stairways and
landings will be dry mopped nightly. Railings, ledges, and
equipment will be dusted nightly. These areas will be wet
mopped weekly, scrubbed when necessary, and shall be waxed and
buffed weekly where required.
b. Wipe down mail chute and mail depository nightly.
c. On completion of work, all slop sinks are to be thoroughly
cleaned, and cleaning equipment to be stored needy in
designated locations.
d. All cleaning services except those performed by day porters,
window cleaners, and matrons are to be performed nightly, five
nights per week No Saturday, Sunday or bank holiday service to
be provided. In no event shall performance of any cleaning
service interfere with Tenant's normal business operation.
e. The Contractor or Landlord is to furnish all necessary
approved cleaning materials, implements, and machinery for the
satisfactory completion of the work. This includes
scaffolding, vacuum machines, scrubbing machines, etc.
f. Contractor shall furnish proof of liability and property
damage insurance suitable to the bank and Xxxxxxx'x
Compensation Insurance in amounts required under the laws of
New Jersey.
E-6
61
g. Tenant will be charged for cleaning services in excess of the
specifications outlined above.
h. Tenant will be charged for the incremental cost to clean any
areas of the Demised Premises used for special purposes
requiring more difficult cleaning work than office areas
including, but not limited to, private toilets and showers,
dining areas, cafeteria, kitchen, etc.
E-7
62
EXHIBIT E
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators, and
escalators of the Building are limited to ingress to and egress from the
tenants' demised premises for the tenants and their employees, licensees, and
invitees, and no tenant shall use or permit the use of the entrances, corridors,
escalators, or elevators for any other purpose. No tenant shall invite to the
tenant's demised premises, or permit the visit of, persons in such numbers or
under such conditions as to interfere with the use and enjoyment of any of the
plazas, entrances, corridors, escalators, elevators, and other facilities of the
Building by other tenants. Fire exits and stairways are for emergency use only,
and they shall not be used for any other purpose by the tenants, their
employees, licensees, or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of any of the sidewalks, plazas,
entrances, corridors, escalators, elevators, fire exits, or stairways of the
Building. The Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building outside of
ordinary business hours to any person not having a pass issued by the Landlord
or the tenant whose demised premises are to be entered or not otherwise properly
identified, and may require all persons admitted to or leaving the Building
outside of ordinary business hours to register. Any person whose presence in the
Building at any time shall, in the judgment of the Landlord, be prejudicial to
the safety, character, reputation, and interests of the Building or of its
tenants may be denied access to the Building or may be ejected therefrom. In
case of invasion, riot, public excitement, or other commotion, the Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise, for the safety of the tenants and protection of
property of the Building. The Landlord may require any person leaving the
Building with any package or other object to exhibit a pass from the tenant from
whose premises the packaging or object is being removed, but the establishment
and enforcement of such requirement shall not impose any responsibilities on the
Landlord for the protection of any tenant against the removal of property from
the premises of the tenant. The Landlord shall in no way be liable to any tenant
for damages or loss arising from the admission, exclusion, or ejection of any
person to or from the tenant's premises or the Building under the provisions of
this rule. Canvassing, soliciting, or peddling in the Building is prohibited,
and every tenant shall cooperate to prevent the same.
3. No tenant shall obtain or accept for use in its demised premises
ice, food for on premises preparation other than warming, beverage towel,
barbering, boot blackening, floor polishing, lighting maintenance, cleaning, or
other similar services from any persons not authorized by the Landlord in
writing to furnish such services, provided that the charges for such services by
persons authorized by the Landlord are not excessive and where appropriate and
consonant with the security and proper operation of the Building sufficient
persons are so authorized for the same service to provide tenants with a
reasonably competitive selection. Such services shall be furnished only at such
hours, in such places within the Tenant's Demised
E-8
63
Premises and under such reasonable regulations as may be fixed by the Landlord.
Tenant may have a coffee service, subject to Landlord's approval, and a kitchen
for the use of its employees commensurate with normal office use.
4. The cost of repairing any damage to the public portions of the
Building or the public facilities or to any facilities in common with other
tenants, caused by a tenant or the employees, licensees, or invitees of the
tenant shall be paid by such tenant.
5. No lettering, sign, advertisement, notice or object shall be
displayed in or on the windows or doors, or on the outside of any tenant's
demised premises, or at any point inside any tenant's premises where the same
might be visible outside of such demised premises, except that the name of the
tenant may be displayed on the entrance door of the tenant's demised premises,
and in the elevator lobbies of the floors which are occupied entirely by any
tenant, subject to the approval of the Landlord as to the size, color, and style
of such display. The inscription of the name of the tenant on the door of the
tenant's demised premises shall be done by the Landlord at the expense of the
tenant.
6. No awnings or other projections over or around the windows shall be
installed by any tenant, and only such window blinds as are supplied or
permitted by the Landlord shall be used in a tenant's demised premises.
Linoleum, tile, or other floor covering shall be laid in a tenant's demised
premises only in a manner approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight and
position of safes and other objects of excessive weight, and no safe or other
object whose weight exceeds the lawful load for the area upon which it would
stand shall be brought into or kept upon a tenant's demised premises. If, in the
judgment of the Landlord, it is necessary to distribute the concentrated weight
of any heavy object, the work involved in such distribution shall be done at the
expense of the tenant and in such manner as the Landlord shall determine. The
moving of safes and other heavy objects shall take place only outside of
ordinary business hours upon the same upon previous notice to the Landlord, and
the persons employed to move the same in and out of the Building shall be
reasonably acceptable to the Landlord and if so required by law, shall hold a
Master Rigger's license. Freight, furniture, business equipment, merchandise,
and bulky matter of any description shall be delivered to and removed from the
demised premises only in the freight elevators and through the service entrances
and corridors, and only during hours and in a manner approved by the Landlord.
Arrangements will be made by the Landlord with any tenant for moving large
quantities of furniture and equipment into or out of the Building.
8. No machines or mechanical equipment of any kind other than
typewriters and other ordinary business machines, may be installed or operated
in any tenant's demised premises without Landlord's prior written consent, and
in no case (even where the same are of a type so accepted or as so consented to
by Landlord) shall any machines or mechanical equipment be so placed or operated
as to disturb other tenants; but machines and mechanical equipment which may be
permitted to be installed and used in a tenant's demised premises shall be so
equipped, installed and maintained by such tenant as to prevent any disturbing
noise, vibration, or electrical or other interference from being transmitted
from such premises to any other area of the Building.
X-0
00
0. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of the Landlord might disturb other tenants
in the building, shall be made or permitted by any tenant, and no cooking, other
than microwaving, shall be done in the tenant's demised premises, except as
expressly approved by the Landlord. Nothing shall be done or permitted in any
tenants' demised premises, and nothing shall he brought into or kept in any
tenants' demised premises, which would impair or interfere with any of the
Building services or the proper and economic heating, cleaning, or other
servicing of the Building or the demised premises, or the use of enjoyment by
any other tenant of any other demised premises, nor shall there be installed by
any tenant any ventilating, air conditioning, electrical or other equipment of
any kind which, in the judgment of the Landlord, might cause any such impairment
or interference. No dangerous, inflammable, combustible, or explosive object or
material shall be brought into the building by any tenant or with the permission
of any tenant. Any cuspidors or similar containers or receptacles used in any
tenants' demised premises shall be cared for and cleaned by and at the expense
of the tenant.
10. No acids, vapors, or other materials shall be discharged or
permitted to be discharged into the waste lines, vents or flues of the Building
which may damage them. The water and wash closets and other plumbing fixtures in
or serving any tenant's premises shall not be used for any purpose other than
the purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors or windows in any tenants' demised premises and no lock on any door
therein shall be changed or altered in any respect. Additional keys for a
tenant's demised premises and toilet rooms shall be procured only from the
Landlord, which may make a reasonable charge therefor. Upon the termination of a
tenant's lease, all keys of the tenant's demised premises and toilet rooms shall
be delivered to the Landlord.
12. All entrance doors in each tenants' demised premises shall be left
locked, and all windows shall be left closed by the tenant when the tenant's
demised premises are not in use. Entrance doors shall not be left open at any
time.
13. Hand trucks not equipped with rubber tires and side guards shall
not be used within the Building.
14. All windows in each tenant's demised premises shall be kept closed
and all blinds therein above the ground floor shall be lowered when and as
reasonably required because of the position of the sun, during the operation of
the Building air conditioning system to cool or ventilate the tenant's demised
premises.
15. The Landlord reserves the right to rescind, alter, or waive any
rule or regulation at any time prescribed for the Building when, in its
judgment, it deems it necessary, desirable, or proper for its best interest and
for the best interests of the tenants, and no alteration or waiver of any rule
or regulation in favor of one tenant shall operate as an alteration or waiver in
favor of any other tenant. The Landlord shall not be responsible to any tenant
for the non-observance or violation by any other tenant of any of the rules and
regulations at any time prescribed by the Building.
E-10
65
EXHIBIT F
DEFINITIONS
(a) The term "mortgage" shall mean an indenture of mortgage and deed of
trust to a trustee to secure an issue of bonds, and the term "mortgagee" shall
mean such a trustee.
(b) The terms "include," "including," and "such as" shall each be
construed as if followed by the phrase "without being limited to."
(c) References to Landlord as having no liability to Tenant or being
without liability to Tenant, shall mean the Tenant is not entitled to terminate
this Lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated.
(d) The term laws and/or requirements of public authorities and words
of like import shall mean laws and ordinances of any or all of the Federal,
state, city, county, and borough governments and rules, regulations, orders
and/or directives of any or all departments, subdivisions, bureaus, agencies, or
office thereof, or of any other governmental, public, or quasipublic
authorities, having jurisdiction in the premises, and/or the direction of any
public officer pursuant to law.
(e) The term requirements of insurance bodies and words of like import
shall mean rules, regulations, orders, and other requirements of the New Jersey
Board of Fire Underwriters and/or similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(f) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(g) Reference to termination of this Lease includes expiration or
earlier termination of the term of this Lease or cancellation of this Lease
pursuant to any of the provisions of this Lease or to law. Upon a termination of
this Lease, the term and estate granted by this Lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this Lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this Lease, or (ii) except for such obligation as by its nature or under the
circumstances can only be, or by the provisions of this Lease, may be performed
after such termination and, in any event, unless expressly otherwise provided in
this Lease, any liability for a payment which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this Lease.
E-11
66
EXHIBIT G
NON-DISTURBANCE AGREEMENT
SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT
This Agreement dated __________________________, between NEW YORK LIFE
INSURANCE COMPANY, a corporation duly organized and existing under the laws of
the State of New York, having its principal place of business at 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("New York Life"), and ________________________
the address of which is ______________________________ ("Tenant").
RECITALS
Tenant has entered into a lease dated ____________________ ("Lease"),
leasing part of a certain premises located in
____________________________________ ("Premises"). The Premises are more
particularly described in said Lease;
New York Life is the holder of a certain Note secured by a Mortgage or
a Deed of Trust, Security Agreement, Assignment of Rents and Leases and
Financing Statement ("Mortgage") upon the Premises, and as provided hereafter,
the Mortgage is prior to the Tenant's Lease. Tenant desires to be assured of the
continued use and occupancy of the Premises under the terms of the Lease;
New York Life agrees to such continued use and occupancy by Tenant
provided that Tenant agrees to recognize and attorn to New York Life or a
purchaser in the event of transfer of title to the Premises by foreclosure or
otherwise.
NOW, THEREFORE, for good and valuable consideration being the mutual
premises herein contained, it is agreed:
1. In the event it should become necessary to foreclose the Mortgage or
New York Life should otherwise come into possession or title to the Premises,
New York Life will not join Tenant in summary or foreclosure proceedings unless
required by law in order to obtain jurisdiction, but in such event no judgment
foreclosing the Lease will be sought, and New York Life will not disturb the use
and occupancy of Tenant under the Lease so long as Tenant is not in default
under any of the terms, covenants or conditions of the Lease and has not prepaid
the rent except monthly in advance as provided by the terms of the Lease.
2. Tenant agrees that in the event any proceedings are brought for
foreclosure of the Mortgage, it will attorn to the purchaser as the landlord
under the Lease. The purchaser by virtue of such foreclosure shall be deemed to
have assumed and agreed to be bound, as substitute landlord, by the terms and
conditions of the Lease until the resale or other disposition of its interest by
such purchaser, except that such assumption shall not be deemed of itself an
acknowledgment of such purchaser of the validity of any then existing claims of
Tenant against any prior landlord. All rights and obligations under the Lease
shall continue as though such foreclosure proceeding had not been brought,
except as aforesaid. Tenant waives the
E-12
67
provisions of any statute or rule of law now or hereafter in effect which may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease and the obligations of Tenant thereunder by reason of
any foreclosure proceeding.
3. Notwithstanding the foregoing, neither New York Life nor purchaser
shall in any event (a) be liable for any previous act or omission of any prior
landlord, (b) nor be subject to any offsets or defenses which Tenant may be
entitled to assert against any (including Landlord) prior landlord, (c) nor be
bound by any amendment to or modification of the Lease made without the prior
written consent of New York Life (d) or be bound by any payment by Tenant of any
rent in advance beyond one month's rent made subsequent to the date on which
Tenant shall have received notice that New York Life, or purchaser has succeeded
to the rights of the landlord under the Lease, it being expressly understood and
agreed that the liability of New York Life or such purchaser under the lease
covenants will be limited to such covenants as shall be applicable after such
attornment, (e) be obligated to cure any defaults of any prior landlord
(including Landlord) which occurred prior to the time that New York Life or such
other purchaser succeeded to the interest of such prior landlord under the
Lease, or (f) be liable or responsible for or with respect to the retention,
application and/or return to Tenant of any security deposit paid to any prior
landlord (including Landlord),whether or not still held by such prior landlord,
unless and until New York Life or such other purchaser has actually received for
its own account as landlord the full amount of such security deposit.
4. Tenant acknowledges that it has notice that the Lease and the rent
and all other sums due thereunder have been assigned or are to be assigned to
New York Life as security for the Loan secured by the Mortgage. In the event
that New York Life notifies Tenant of a default under the Mortgage and demands
that Tenant pay its rent and all other sums due under the Lease to New York
Life, Tenant agrees that it will honor such demand and pay its rent and all
other sums due under the Lease directly to New York Life or as otherwise
required pursuant to such notice.
5. In all events, the liability of New York Life or any purchaser to
Tenant shall be limited and restricted to their interest in the Premises and
shall in no event exceed such interest.
6. Tenant acknowledges and agrees that notwithstanding the date of the
Lease or New York Life's knowledge thereof, the Lease shall be and remain
subordinate in all respects to the Mortgage and any modification, reinstatement,
extension, supplement, consolidation or replacement thereof as well as any
advances or readvances with interest thereof and to any other mortgage on the
Premises which may hereafter be held by New York Life.
7. Tenant will give written notice to New York Life of any default by
landlord under the lease by mailing a copy of the same by certified mail,
postage prepaid, addressed as follows (or to such other address as may be
specified from time to time by New York Life to Tenant):
E-13
68
To New York Life: New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Real Estate
Upon such notice, New York Life shall be permitted and shall have the option, in
its sole and absolute discretion, to cure any such default during the period of
time during which the landlord would be permitted to cure such default, but in
any event New York Life shall have a reasonable period of time after the receipt
of such notification to cure such default.
8. The provisions of this Agreement are binding upon and shall inure to
the benefit of
E-14