Exhibit 10.33
New Jersey
LEASE
BT Piscataway LLC
Landlord
and
EasyLink Services Corporation
Tenant
for Suite 100
Table of Contents
Page
1. SUMMARY OF DEFINED TERMS.................................................1
2. PREMISES.................................................................2
3. TERM.....................................................................2
4. CONSTRUCTION BY LANDLORD.................................................3
5. FIXED RENT; SECURITY DEPOSIT.............................................4
6. ADDITIONAL RENT..........................................................5
7. ELECTRICITY CHARGES......................................................6
8. SIGNS; USE OF PREMISES AND COMMON AREAS..................................7
9. ENVIRONMENTAL MATTERS....................................................7
10. TENANT'S ALTERATIONS.....................................................8
11. CONSTRUCTION LIENS.......................................................9
12. ASSIGNMENT AND SUBLETTING................................................9
13. LANDLORD'S RIGHT OF ENTRY...............................................11
14. REPAIRS AND MAINTENANCE.................................................12
15. INSURANCE; SUBROGATION RIGHTS...........................................13
16. INDEMNIFICATION.........................................................13
17. QUIET ENJOYMENT.........................................................14
18. FIRE DAMAGE.............................................................14
19. SUBORDINATION; RIGHTS OF MORTGAGEE......................................15
20. CONDEMNATION............................................................15
21. ESTOPPEL CERTIFICATE....................................................16
22. DEFAULT.................................................................16
23. LANDLORD'S LIEN.........................................................20
24. LANDLORD'S REPRESENTATIONS AND WARRANTIES...............................20
25. SURRENDER...............................................................21
26. RULES AND REGULATIONS...................................................21
27. GOVERNMENTAL REGULATIONS................................................21
28. NOTICES.................................................................22
29. BROKERS.................................................................22
30. CHANGE OF BUILDING/PROJECT NAME.........................................22
31. LANDLORD'S LIABILITY....................................................22
32. AUTHORITY...............................................................22
33. NO OFFER................................................................22
34. RELOCATION..............................................................22
35. TENANT FINANCIAL INFORMATION............................................23
36. EXPANSION...............................................................23
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37. MISCELLANEOUS PROVISIONS................................................23
38. WAIVER OF TRIAL BY JURY.................................................25
39. CONSENT TO JURISDICTION.................................................25
EXHIBITS
EXHIBIT "A" - SPACE PLAN OF PREMISES
EXHIBIT "B" - CONFIRMATION OF LEASE TERM
EXHIBIT "C" - RULES AND REGULATIONS
EXHIBIT "D" - CLEANING SPECIFICATIONS
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LEASE
THIS LEASE ("Lease") entered into as of the 23rd day of July, 2002,
between BT Piscataway, LLC, a New Jersey limited liability corporation
("Landlord"), and EasyLink Services Corporation, a Delaware corporation
("Tenant").
WITNESSETH
In consideration of the mutual covenants herein set forth, and
intending to be legally bound, the parties hereto covenant and agree as follows:
1. SUMMARY OF DEFINED TERMS.
The following defined terms, as used in this Lease, shall have the
meanings and shall be construed as set forth below:
(a) "Building": The Building located 00 Xxxxxxxxxxxxx
Xxxx, Xxxxxxxxxx, Xxx Xxxxxx.
(b) "Project": The Building, the land and all other
improvements located at 00 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx.
(c) "Premises": Suite No. 100, which the parties
stipulate and agree is a 67,201 rentable square foot portion of the first and
second floors of the Building shown on the space plan attached hereto as Exhibit
"A" and made a part hereof.
(d) "Term": From the Commencement Date for a period of
one hundred twenty four (124) months, ending on the last calendar day of the
month.
(e) "Fixed Rent":
1st @ 2cnd Floor THIRD FLOOR ANNUAL
LEASE YEAR PER R.S.F. PER R.S.F. INSTALLMENTS FIXED RENT
---------- ---------- ----------- ------------ ----------
(55,201 sq. ft.) (11,964 sq.ft.)
Months 1--16 $11.61, plus utilities $12.61, plus utilities $791,749.65 $65,979.14
Months 17-28 $12.11, plus utilities $13.11, plus utilities $825,332.15 $68,777.68
Months 29-40 $12.11, plus utilities $13.11, plus utilities $825,332.15 $68,777.68
Months 41-52 $17.50, plus utilities $18.50, plus utilities $1,187,351.50 $98,945.96
Months 53-64 $17.50, plus utilities $18.50, plus utilities $1,187,351.50 $98,945.96
Months 65-124 $18.50, plus utilities $19.50, plus utilities $1,254,516.50 $104,543.04
(f) "Security Deposit": $151,250.00
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(g) "Estimated Occupancy Date": October 1, 2002.
(h) "Tenant's Allocated Share": 36.02%;
"Base Year": Calendar Year 2003
(i) "Rentable Area": Premises 67,201 sq. ft.
Building 153,239 sq. ft.
(j) "Permitted Uses": Tenant's use of the Premises shall
be limited to general office and administrative use, data center, computer
facilities and development programs, storage and uses incidental thereto.
Tenant's right to use the Premises shall be subject to all applicable laws and
governmental rules and regulations and to all reasonable requirements of the
insurers of the Building.
(k) "Broker": GVA Xxxxxxxx of New Jersey.
(l) "Notice Address/Contact"
Prior To Occupancy Date
Tenant: EasyLink Services
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx
Attn: Xxxxx Xxxxxxxx
Fax No: (000) 000-0000
E-Mail: xxxxxxxxx@xxxxxxxx.xxx
After Occupancy Date:
EasyLink Services Corporation
00 Xxxxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxx Xxxxxx
Attn: Xxxxx Xxxxxxxx
Fax No: (000) 000-0000
E-Mail: xxxxxxxxx@xxxxxxxx.xxx
Landlord: BT Piscataway, LLC
C/O BET Investments, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxxx, XX 00000
Attn: Xxxxx X. Toll
Fax No.: 000-000-0000
with a copy to:
BT Piscataway, LLC
C/O BET Investments, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Fax No.: 000-000-0000
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(m) "Tenant's North American Industry Classification
Number": _______
(n) "Additional Rent": All sums of money or charges
required to be paid by Tenant under this Lease other than Fixed Rent, whether or
not such sums or charges are designated as "Additional Rent".
(o) "Rent": All Annual Fixed Rent, monthly installments
of Annual Fixed Rent, Fixed Rent and Additional Rent payable by Tenant to
Landlord under this Lease.
2. PREMISES.
Landlord does hereby lease, demise and let unto Tenant and Tenant does
hereby hire and lease from Landlord the Premises for the Term, upon the
provisions, conditions and limitations set forth herein.
3. TERM.
The Term of this Lease shall commence (the "Commencement Date") the
date which is the earlier of (i) when Tenant, with Landlord's prior consent,
assumes possession of the Premises for its Permitted Uses, or (ii) sixty (60)
days after the date of substantial completion of the improvements required to be
made by Landlord, if any under Article 4. The Premises shall be deemed
"substantially completed" when the improvements called for by Article 4 have
been completed to the extent that the Premises may be occupied by Tenant for its
Permitted Uses, subject only to completion of minor finishing, adjustment of
equipment, and other minor construction aspects, and Landlord has procured a
temporary or permanent certificate of occupancy permitting the occupancy of the
Premises, if required by law (hereafter, "substantially completed"). The Term
shall expire on the last day of the month which is one hundred twenty four (124)
months from the Commencement Date. The Commencement Date shall be confirmed by
Landlord and Tenant by the execution of a Confirmation of Lease Term in the form
attached hereto as Exhibit "B". If Tenant fails to execute or object to the
Confirmation of Lease Term within ten (10) business days of its delivery,
Landlord's determination of such date shall be deemed accepted.
(a) Upon notification by Landlord, Landlord and Tenant
shall schedule a pre-occupancy inspection of the Premises at which time a
punchlist of outstanding items, if any, shall be compiled. Within a reasonable
time thereafter but no longer than one hundred and twenty (120) days after the
inspection, Landlord shall complete the punchlist items to Tenant's
satisfaction.
(b) In the event that the Premises are not ready for
Tenant's occupancy at the time herein fixed for the beginning of the Term of
this Lease, because of any alterations or construction now or hereafter being
carried on either to the Premises or the Building (unless such alterations are
being done by Tenant or Tenant's contractor, in which case there shall be no
suspension or proration of rental or other sums), or because of any
restrictions, limitations or delays caused by government regulations or
governmental agencies, this Lease and the Term hereof shall not be affected
thereby, nor shall Tenant be entitled to make any claim for or receive any
damages whatsoever from Landlord; provided, however, no rent or other sums
herein provided to be paid by Tenant shall become due until the Premises are
substantially completed, and until that time, the rent and other sums due
hereunder shall be suspended.
4. CONSTRUCTION BY LANDLORD AND TENANT.
(a) Landlord shall construct and do such other work
(collectively, the "Landlord's Work") in conformity with the plans and outline
specifications of the plan prepared by Xxxxxxx attached hereto, which have been
initialed by the parties, and which are herein incorporated by reference. If any
material revision or supplement to Landlord's Work is deemed necessary by
Landlord, those revisions and supplements shall be submitted to Tenant for
written approval, which approval shall not be unreasonably withheld or delayed.
If Landlord shall be delayed in such "substantial completion" as a result of (i)
Tenant's failure to furnish plans and specifications within the time frame
stated by Landlord in its reasonable discretion; (ii) Tenant's request for
materials, finishes or installations other than Landlord's standard; (iii)
Tenant's changes in said plans; (iv) the performance or completion of any work,
labor or services by a party employed by Tenant; or (v) Tenant's failure to
approve final plans, working drawings or reflective ceiling plans within the
time frame stated by Landlord in its reasonable discretion (each, a "Tenant's
Delay"); then the commencement of the Term of this Lease and the payment of
Fixed Rent hereunder shall be accelerated by the number of days of such delay .
If any change, revision or supplement to the scope of the Landlord's Work is
requested by Tenant or if Tenant fails to provide information or cooperation
required by Landlord in connection with Landlord's Work within the time periods
required then such occurrence shall not change the Commencement Date of the Term
and shall not alter Tenant's obligations under this Lease. Notwithstanding
anything to the contrary stated in Section 3(a) above, the Term shall commence
on the date the Premises would have been delivered to Tenant but for Tenant's
Delay. Tenant shall be solely responsible for all documented and invoiced
expenses which increase the costs incurred in connection with a Tenant requested
change in the scope of the Landlord Work (including the finishes set forth
therein).
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(i) Landlord hereby agrees to install a new
telephone room to service the Building which is currently located within the
Premises to a location mutually acceptable to the Landlord and the Tenant. After
relocation of the Building telephone room, Tenant will have access to the
telephone room located in its Premises and the new telephone room servicing the
Building for the lines and equipment of the Tenant. In consideration of the
Landlord relocating the telephone room for the Building, Tenant hereby agrees to
split the costs associated with the relocation, as follows: (i) the Landlord and
Tenant will each pay for fifty percent (50%) of all costs up to $30,000; and
(ii) the Tenant agrees to bear all costs over and above the initial $30,000 of
such costs associated with the relocation.
Landlord and Tenant hereby agree that prior to the inception of any
work or costs associated with the relocation of the telephone room, both the
Landlord and the Tenant shall mutually agree in writing on the plans,
specifications, costs associated with the relocation of the telephone room.
(b) Tenant shall construct and do such other work
(collectively, the " TENANT 's Work") in conformity with the plans and outline
specifications of the plan prepared by Aztec Associates dated July 16, 2002,
which have been initialed by the parties, and which are herein incorporated by
reference. If any material revision or supplement to Tenant's Work is deemed
necessary by TENANT, those revisions and supplements shall be submitted to
Landlord for written approval, which approval shall not be unreasonably withheld
or delayed.
(c) In addition to the foregoing, Landlord shall complete
the scheduled renovations to the lobby, as shown on Exhibit "A", during the
first year of the Term.
(d) Tenant and its authorized agents, employees and
contractors shall have the right, at Tenant's own risk, expense and
responsibility, at all reasonable times commencing two (2) weeks prior to the
Commencement Date (as hereinafter defined)to enter the Premises, such entry date
to be determined by Landlord in its reasonable discretion, for the purpose of
taking measurements and installing its furnishings, fixtures and equipment,
provided that Tenant, in so doing, shall comply with the following provisions:
(i) Tenant shall first obtain the approval of
Landlord, in writing, of the specific work it proposes to perform and shall
furnish Landlord with reasonably detailed plans and specifications therefor
(such approval not to be unreasonably withheld);
(ii) The work shall be performed by licensed
contractors and subcontractors who shall not prejudice Landlord's relationship
with Landlord's contractors or subcontractors or the relationship between such
contractors and their subcontractors or employees, or disturb harmonious labor
relations, and who shall furnish in advance and maintain in effect Workmen's
Compensation Insurance in accordance with statutory requirements and
comprehensive public liability insurance (naming Landlord and Landlord's
contractors and subcontractors as additional insureds) with limits satisfactory
to Landlord;
(iii) No such work shall be performed in such
manner or at such times as to cause any delay in connection with any work being
done by any of Landlord's contractors or subcontractors in the Premises or in
the Building generally (Landlord agrees to notify Tenant of any such delay
promptly after Landlord learns of the same);
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(iv) Tenant and its contractors and
subcontractors shall be solely responsible for the transportation, safekeeping
and storage of materials and equipment used in the performance of such work, for
the removal of waste and debris resulting therefrom, and for any damage caused
by them to any installations or work performed by Landlord's contractors and
subcontractors.
5. FIXED RENT; SECURITY DEPOSIT.
(a) Tenant shall pay to Landlord without notice or
demand, and without set-off, the annual Fixed Rent payable in the monthly
installments of Fixed Rent as set forth in Article 1(e), in advance on the first
day of each calendar month during the Term by good and sufficient funds.
Notwithstanding the immediately preceding sentence, the first full month's
installment and any initial partial month and the Security Deposit shall be paid
upon the execution of this Lease by Tenant.
(b) In the event any Fixed Rent or Additional Rent,
charge, fee or other amount due from Tenant under the terms of this Lease are
not paid to Landlord when due, Tenant shall also pay as Additional Rent a
service and handling charge equal to five (5%) percent of the total payment then
due. The aforesaid late fee shall begin to accrue on the tenth day of any
calendar month during the Term in which payment of the Rent has not been
received by the Landlord. This provision shall not prevent Landlord from
exercising any other remedy herein provided or otherwise available at law or in
equity in the event of any default by Tenant.
(c) Tenant shall be required to pay a Security Deposit of
$151,250.00 under this Lease (the "Collateral"), as security for the prompt,
full and faithful performance by Tenant of each and every provision of this
Lease and of all obligations of Tenant hereunder. No interest shall be paid to
Tenant on the Collateral, and Landlord shall have the right to commingle the
Collateral with other Security Deposits held by Landlord. If Tenant fails to
perform any of its obligations hereunder, Landlord may use, apply or retain the
whole or any part of the Collateral for the payment of (i) any rent or other
sums of money which Tenant may not have paid when due, (ii) any sum reasonably
expended by Landlord on Tenant's behalf in accordance with the provisions of
this Lease, and/or (iii) any sum which Landlord may expend or be required to
expend by reason of Tenant's default, including, without limitation, any damage
or deficiency in or from the reletting of the Premises as provided in this
Lease. The use, application or retention of the Collateral, or any portion
thereof, by Landlord shall not prevent Landlord from exercising any other right
or remedy provided by this Lease or by law (it being intended that Landlord
shall not first be required to proceed against the Collateral) and shall not
operate as either liquidated damages or as a limitation on any recovery to which
Landlord may otherwise be entitled. If any portion of the Collateral is used,
applied or retained by Landlord for the purposes set forth above, Tenant agrees,
within ten (10) days after the written demand therefor is made by Landlord, to
deposit cash with the Landlord in an amount sufficient to restore the Collateral
to its original amount. In addition to the foregoing, if Tenant defaults
(irrespective of the fact that Tenant cured such default) more than once in its
performance of a monetary obligation and such monetary defaults aggregate in
excess of $20,000 under this Lease, Landlord may require Tenant to increase the
Collateral to the greater of twice the (i) Fixed Rent paid monthly, or (ii) the
initial amount of the Collateral.
If Tenant shall fully and faithfully comply with all of the provisions
of this Lease, the Collateral, or any balance thereof, shall be returned to
Tenant without interest after the expiration of the Term or upon any later date
after which Tenant has vacated the Premises. In the absence of evidence
satisfactory to Landlord of any permitted assignment of the right to receive the
Collateral, Landlord may return the same to the original Tenant, regardless of
one or more assignments of Tenant's interest in this Lease or the Collateral.
Upon the return of the Collateral, or the remaining balance thereof, to the
original Tenant or any successor to the original Tenant, Landlord shall be
completely relieved of liability with respect to the Collateral.
In the event of a transfer of the Building and upon the written
assumption of the lease by the transferee, Landlord shall have the right to
transfer the Collateral to purchaser upon written notice to the Tenant and
Landlord shall thereupon be released by Tenant from all liability for the return
of such Collateral. Upon the assumption of such Collateral by the transferee,
Tenant agrees to look solely to the new Landlord for the return of said
Collateral, and the provisions hereof apply to every transfer or assignment made
of the Collateral to a new Landlord. The Collateral shall not be mortgaged,
assigned or encumbered in any manner whatsoever by Tenant without the prior
written consent of Landlord.
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6. ADDITIONAL RENT.
(a) Beginning on January 1, 2004, and in each calendar
year thereafter during the Term (as same may be extended), Tenant shall pay to
Landlord Tenant's Allocated Share of the increased cost, if any, for the
following charges ("Recognized Expenses"), without deduction or set off, to the
extent such Recognized Expenses exceed the actual cost as established in
calendar year 2003 ("Base Year").
Tenant shall pay to Landlord Tenant's Proportionate Share of the
Recognized Expenses of the Entire Premises in excess of the Base Year . For the
purposes of this Lease, the Recognized Expenses of Building and Project
(collectively referred to herein as the "Entire Premises") shall include,
without limitation, all expenses, costs and charges incurred in the cleaning,
operation and maintenance of the Entire Premises and all other reasonable costs,
expenses or charges which Landlord shall actually incur, pay or become obligated
to pay because of or in connection with the ownership and operation of Entire
Premises, including, but not limited to, the following:
(a) wages and salaries of all employees engaged in
maintenance of Entire Premises including all taxes
thereon, and all insurance and benefits relating
thereto;
(b) all utilities used in the operation of the Entire
Premises other than (i) those which are directly
attributable to premises of other tenants; (ii) those
which solely benefit other individual tenants; and
(iii)those which are separately billed to individual
tenants;
(c) the cost of all maintenance and service agreements;
(d) the cost of all insurance applicable to Entire
Premises, including, without limitation, all risk
coverage, rent insurance, and workmen's compensation;
(e) all taxes, levies, fees, or charges, general and
special, ordinary and extraordinary, unforeseen as
well as foreseen, of any kind which are assessed,
levied, charged, confirmed or imposed by any public
authority upon the Building and the Entire Premises
or its operation or the rent provided for in this
Lease and any legal expenses associated with tax
appeals for the Property, excluding however, any
taxes on Landlord's net income;
(f) cost of repairs, replacements and general maintenance
and building services including all supplies and
materials, other than administrative supplies, used
in the operation and maintenance of Entire Premises;
(g) a management fee of 4% of gross rents receivable by
Landlord based upon ninety five (95%) percent
occupancy of the Entire Premises at the inception of
the Lease;
(h) the cost of maintenance, repair and operation of all
equipment and systems installed or owned by Landlord
to provide such services; and
(i) The amortized cost of capital improvements (as
distinguished from replacement parts or components
installed in the ordinary course of business) made to
the Building and the Entire Premises which are: (a)
performed primarily to reduce operating expense costs
or otherwise improve the operating efficiency of the
Property; or (b) required to comply with any Laws
that are enacted, or first interpreted to apply to
the Property, after the date of this Lease. The cost
of capital improvements shall be amortized by
Landlord over the lesser of the Payback Period
(defined below) or 5 years. The amortized cost of
capital improvements may, at Landlord's option,
include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to
finance the cost of the capital improvement. "Payback
Period" means the reasonably estimated period of time
that it takes for the cost savings resulting from a
capital improvement to equal the total cost of the
capital improvement.
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Landlord shall provide Tenant with a good faith estimate of any
increase in Recognized Expenses for each calendar year over the Base Year during
the Term. On or before the first day of each month beginning in January 2004,
Tenant shall pay to Landlord a monthly installment equal to one-twelfth of
Tenant's Pro Rata Share of Landlord's estimate of the increase in the Recognized
Expenses. If Landlord determines that its good faith estimate of the Recognized
Expenses or of the Tax Excess was incorrect by a material amount, Landlord may
provide Tenant with a revised estimate. After its receipt of the revised
estimate, Tenant's monthly payments shall be based upon the revised estimate. If
Landlord does not provide Tenant with an estimate of the Recognized Expenses,
Tenant shall continue to pay monthly installments based on the previous year's
estimate(s) until Landlord provides Tenant with the new estimate. Upon delivery
of the new estimate, an adjustment shall be made for any month for which Tenant
paid monthly installments based on the previous year's estimate(s). Tenant shall
pay Landlord the amount of any underpayment within 30 days after receipt of the
new estimate. Any overpayment shall be refunded to Tenant within 30 days or
credited against the next due future installment(s) of Additional Rent.
Expenses shall not include: the cost of capital improvements (except as
set forth above); depreciation; interest (except as provided above for the
amortization of capital improvements); principal payments of mortgage and other
non-operating debts of Landlord; the cost of repairs or other work to the extent
Landlord is reimbursed by insurance or condemnation proceeds; costs in
connection with leasing space in the Building, including brokerage commissions;
lease concessions, including rental abatements and construction allowances,
granted to specific tenants; costs incurred in connection with the sale,
financing or refinancing of the Building; fines, interest and penalties incurred
due to the late payment of Taxes (defined in Section IV.D) or Expenses;
organizational expenses associated with the creation and operation of the entity
which constitutes Landlord; or any penalties or damages that Landlord pays to
Tenant under this Lease or to other tenants in the Building under their
respective leases.
7. UTILITY CHARGES.
Landlord shall not be liable for any interruption or delay in electric
or any other utility service for any reason unless caused by the gross
negligence or willful misconduct of Landlord or its agents. Landlord shall have
the right to change the electric and other utility provider to the Project or
Building at any time. Tenant shall pay to Landlord, as Additional Rent, within
thirty (30) business days of receipt of Landlord's billing statement therefor,
all charges incurred by Landlord, or its agent, for utilities, such charges to
be based upon Tenant's consumption, as measured by Landlord's submeter for the
Premises. The aforesaid electricity charges shall commence upon occupancy by the
Tenant of the Premises. As long as Tenant is not in default under any covenants
of this Lease, Landlord, during the hours of 8:00 A.M. to 6:00 P.M. on weekdays
and on Saturdays from 8:00 A.M. to 1:00 P.M. ("Working Hours"), excluding legal
holidays, shall furnish the Premises with heat and air-conditioning in the
respective seasons, and provide the Premises with electricity for lighting and
usual office equipment. At any hours other than the aforementioned, such
services will be provided at Tenant's expense at $65.00 per hour. Landlord and
Tenant agree to each pay 50% of the cost of the installation of a separate
electric meter to measure electrical usage in excess of normal office use and to
pay Landlord for all such excess electricity registered in such submeter.
8. SIGNS; USE OF PREMISES AND COMMON AREAS.
(a) As part of Tenant fit-out cost, Landlord shall
provide Tenant with standard identification signage on all Building directories
and at the entrance to the Premises. No other signs shall be placed, erected or
maintained by Tenant at any place upon the Premises, Building or Project.
However, Tenant shall be entitled to place its name on one-third of the monument
sign the Landlord is placing on the Premises.
(b) Tenant may use and occupy the Premises only for the
express and limited purposes stated in Article 1(j) above; and the Premises
shall not be used or occupied, in whole or in part, for any other purpose
without the prior written consent of Landlord; provided that Tenant's right to
so use and occupy the Premises shall remain expressly subject to the provisions
of "Governmental Regulations", Article 28 herein. No machinery or equipment
shall be permitted that shall cause vibration, noise or disturbance beyond the
Premises. Tenant, without Landlord's consent or direction, shall not "vacate"
the Premises at any time during the Term, nor permit the Premises to remain
unoccupied. "Vacate" shall be defined as Tenant's ceasing to use the Premises
for its Permitted Use or the removal of substantially all of its furniture and
equipment and personal property from the Premises.
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(c) Tenant shall not overload any floor or part thereof
in the Premises or the Building, including any public corridors or elevators
therein, bringing in, placing, storing, installing or removing any large or
heavy articles, and Landlord may prohibit, or may direct and control the
location and size of, safes and all other heavy articles, and may require, at
Tenant's sole cost and expense, supplementary supports of such material and
dimensions as Landlord may deem necessary to properly distribute the weight.
(d) Tenant shall not install in or for the Premises,
without Landlord's prior written approval, any equipment which requires more
electric current than Landlord is required to provide under this Lease, and
Tenant shall ascertain from Landlord the maximum amount of load or demand for or
use of electrical current which can safely be permitted in and for the Premises,
taking into account the capacity of electric wiring in the Building and the
Premises and the needs of Building common areas (interior and exterior) and the
requirements of other tenants of the Building, Tenant and shall not in any event
connect a greater load than such safe capacity.
Notwithstanding the foregoing, the Tenant is hereby given the right by
the Landlord to dedicate the existing 1200 amps servicing the entire computer
space for Tenant's data center. The cost associated with doing this work shall
be borne by the Tenant. Additionally, Tenant shall have the use of any
supplementary HVAC and power units that are not removed by Telcordia that are
located in the Premises.
(e) Tenant shall not commit or suffer any waste upon the
Premises, Building or Project or any nuisance, or do any other act or thing
which may disturb the quiet enjoyment of any other tenant in the Building or
Project.
(f) Tenant shall have the right, non-exclusive and in
common with others, to use the exterior paved driveways and walkways of the
Building for vehicular and pedestrian access to the Building. Tenant shall also
have the right, in common with other tenants of the Building and Landlord, to
use the designated parking areas of the Project for the parking of automobiles
of Tenant and its employees and business visitors, incident to Tenant's
permitted use of the Premises; provided that Landlord shall have the right to
restrict or limit Tenant's utilization of the parking areas in the event the
same become overburdened and in such case to equitably allocate on proportionate
basis or assign parking spaces among Tenant and the other tenants of the
Building. However, Tenant shall never be restricted to the use of less than 220
parking spaces.
9. ENVIRONMENTAL MATTER.
(a) Compliance with Law. Tenant shall conduct, and cause
to be conducted, all operations and activity at the Premises in compliance with,
and shall in all other respects applicable to the Premises comply with, all
applicable present and future federal, state, municipal and other governmental
statutes, ordinances, regulations, orders, directives, guidelines and other
requirements, and all present and future requirements of common law, concerning
the environment (hereinafter called "Environmental Statutes") including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 U.S.C. "9601 et seq., the Resource Conservation and Recovery Act, 42
U.S.C. "9601 et seq., the Clean Air Act, 42 U.S.C. "7401 et seq., and the Toxic
Substances Control Act, 15 U.S.C. "2601 et seq., and (i) those relating to the
generation, use, handling, treatment, storage, transportation, release,
emission, disposal, remediation or presence of any material, substance, liquid,
effluent or product, including, without limitation, hazardous substances,
hazardous waste or hazardous materials, (ii) those concerning conditions at,
above or below the surface of the ground and (iii) those concerning conditions
in, at or outside of buildings.
(b) Permits.Tenant, in a timely manner, shall obtain and
maintain in full force and effect all permits, licenses and approvals, and shall
make and file all notifications and registrations, as required by Environmental
Statutes. Tenant shall at all times comply with the terms and conditions of any
such permits, licenses, approvals, notifications and registrations.
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(c) Documents. Tenant shall provide to Landlord copies of
the following, forthwith after each shall have been submitted, prepared or
received by Tenant or any occupant of the Premises: (i) all applications and
associated materials submitted to any governmental agency relating to any
Environmental Statute; (ii) all notifications, registrations, reports and other
documents, and supporting information, prepared, submitted or maintained in
connection with any Environmental Statute; (iii) all permits, licenses,
approvals, and amendments or modifications thereof, obtained under any
Environmental Statute; and (v) any correspondence, notice of violation, summons,
order, complaint, or other document received by Tenant or any occupant of the
Premises pertaining to compliance with any Environmental Statute. (d) Tanks.
Tenant, without the prior written consent of Landlord, shall not install or
cause, suffer or permit the installation of, any above or underground storage
tank, at the Premises. If Tenant does install or cause, suffer or permit the
installation of any such tank, Tenant shall comply with all applicable laws as
to its installation, maintenance, operation and closure, including any
requirement for the maintenance of liability insurance with respect to risks
associated with any such tank. If such liability insurance is required to be
maintained, Landlord shall be named as an additional insured thereunder and the
provisions of Section 5(c) hereof shall apply thereto. Upon termination of this
Lease, Landlord shall have the option of requiring that Tenant, at Tenant's sole
cost and expense, remove any tank installed by Tenant and any associated
contaminated material and other contamination and perform all tests required by
Landlord and any required by Environmental Statutes and any other applicable
governmental requirements and provide Landlord and all required government
agencies with the results of such tests in such form as reasonably required by
Landlord or as required by law.
Tenant shall be entitled to install at its sole cost and expense one
above ground fuel storage tank, provided said installation is in compliance with
all federal, state and local environmental rules and regulations, which shall be
used to operate its supplementary and back-up generator. Tenant shall indemnify
and defend Landlord from any and all loss, cost or liability associated with the
installation and use of the generator and all provisions of this Section 9(d)
apply to said installation.
(e) Operations. Tenant shall not cause or suffer or
permit to occur at, in, on or under the Premises any generation, use,
manufacturing, refining, transportation, emission, release, treatment, storage,
disposal, presence or handling of hazardous substances, hazardous wastes or
hazardous materials (as such terms are now or hereafter defined under any
Environmental Statute) (herein called "Hazardous Substances") or any other
material, substance, liquid, effluent or product now or hereafter regulated by
any Environmental Statute (also called "Hazardous Substances"), except that
construction materials (other than asbestos or polychlorinated biphenyls),
office equipment, fuel and similar products (if contained in vehicles) and
cleaning solutions, and other maintenance materials that are or contain
Hazardous Substances may be used, generated, handled or stored on the Premises,
provided such is incident to and reasonably necessary for the operation and
maintenance of the Premises as provider of information exchange services and is
in compliance with all Environmental Statutes and all other applicable
governmental requirements. Tenant shall not cause or allow the generation, use,
manufacturing, refining, transportation, emission, release, treatment, storage,
disposal, presence or handling of Hazardous Substances at, in, on or under the
Premises. Should any release of any Hazardous Substance occur at the Premises
and be caused by or attributable to the Tenant, Tenant shall immediately
contain, remove and dispose of off the Premises, such Hazardous Substances, and
any material that was contaminated by the release and remedy and mitigate all
threats to human health or the environment relating to such release. When
conducting any such measures, Tenant shall comply with Environmental Statutes.
(f) Required Governmental Approval of Property Transfers.
If the use of the Premises by Tenant, or any operation or activity conducted at
the Premises during the term of this Lease, shall be such as requires, under any
present or future Environmental Statute, the obtaining of an approval (herein
called an "Environmental Approval of Transfer or Change") by any governmental
agency, or an acknowledgment by such agency that such approval is not required,
(i) in order to change or transfer ownership of the Premises or any interest in
Landlord or in any entity which directly or indirectly controls Landlord, (ii)
in order to change or transfer Tenant's interest in this Lease or any interest
in Tenant or in any entity which directly or indirectly controls Tenant or (iii)
in connection with: (A) cessation of all or any operations or activity at the
Premises for any reason or (B) a change in or transfer of any operations or
activity at the Premises or (C) the expiration or termination of this Lease
(each of the transactions and occurrences referred to in the foregoing clauses
(i), (ii) or (iii) being hereinafter called a "Change"), Tenant, at Tenant's
sole cost and expense, shall, in compliance with all Environmental Statutes,
apply for, and prior to the Change deliver to Landlord, a copy of the required
approval or acknowledgment and Tenant shall perform all remedial actions
required, by such governmental agency for the issuance of the approval, in whole
or in part by reason of Tenant's use of the Premises or operations or activities
at the Premises during the term of this Lease; provided that as to any Change
which is a change or transfer of ownership of the Premises or of an interest in
Landlord or in any entity which directly or indirectly controls Landlord, Tenant
shall instead (x) promptly comply with any request of Landlord to provide such
information, statements or affidavits as to operations and activities at the
Premises during the term of this Lease, and as to the use of the Premises by
Tenant, as may be determined by Landlord to be necessary, (y) either promptly
perform or, at the option of Landlord, reimburse Landlord within 15 days after
demand for Landlord's costs of, all remedial actions required by any
governmental agency for issuance of the Environmental Approval of Transfer or
Change and (z) pay, or reimburse Landlord for, all other costs and expenses
which are attributable to the existence of Tenant's tenancy or to Tenant's use
of the Premises or to any operation or activity at the Premises during the term
of this Lease and were incurred to obtain such required approval or
acknowledgment. Tenant covenants, represents and warrants that any application,
statement or information made or provided by or through Tenant pursuant to this
subsection shall be true and complete. If there should be an Environmental
Statute which requires an Environmental Approval of Transfer or Change, but such
requirement shall not have been made applicable by Tenant's use of the Premises
or operations or activities conducted at the Premises during the term of this
Lease, and if an official statement of such non-applicability shall be
obtainable from the applicable governmental agency, then, whether or not the
obtaining of such statement is required by law, Tenant, at Tenant's sole cost
and expense, shall obtain and deliver such statement to Landlord before the
change occurs (in the case of a change described in clause (ii) or clause (iii)
above) or promptly upon request of Landlord (in the case of a change described
in clause (i) above). Tenant agrees that during the term of this Lease the
business conducted at the Premises shall be limited to the business identified
as Standard Industrial Classification Number as defined in the most recent
edition of the manual for such classifications published by the United States
Office of Management and the Budget. "Environmental Approval of Transfer or
Change" shall include the Negative Declaration as described in the New Jersey
Environmental Cleanup Responsibility Act 13 N.J. Stat. Xxx 1K-6 et seq. (West
Supp. 1984) as amended from time to time or any successor statute.
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(g) Activities of Others. Tenant agrees that any
contracts or agreements of any kind entered into or renewed by Tenant, for the
occupancy of or the performance of activities on the Premises will contain the
same limitations on the activities of the other contracting party as are placed
on Tenant by subsections (a) through (e), above.
(h) Inspection. Tenant agrees to permit Landlord and its
authorized representatives to enter, inspect and assess the Premises at
reasonable times and after written notice, for the purpose of determining
Tenant's compliance with the provisions of this Section 15. Such inspections and
assessments may include obtaining samples and performing tests of soil, surface
water, groundwater or other media.
(i) Indemnification. Tenant hereby agrees to indemnify
and to hold harmless Landlord of, from and against any and all expense, loss or
liability suffered by Landlord by reason of Tenant's breach of any of the
provisions of this Section 15, including, but not limited to, (i) any and all
reasonable expenses that Landlord may incur in complying with any Environmental
Statutes, (ii) any and all reasonable costs that Landlord may incur in studying,
assessing, containing, removing, remedying, mitigating, or otherwise responding
to, the release of any Hazardous Substance or waste at or from the Premises,
(iii) any and all reasonable costs for which Landlord may be liable to any
governmental agency for studying, assessing, containing, removing, remedying,
mitigating, or otherwise responding to, the release of a Hazardous Substance or
waste at or from the Premises, (iv) any and all reasonable fines or penalties
assessed, or threatened to be assessed, upon Landlord by reason of a failure of
Tenant to comply with any obligations, covenants or conditions set forth in this
Section 15, and (v) any and all reasonable legal fees and costs incurred by
Landlord in connection with any of the foregoing.
Landlord hereby agrees to indemnify and to hold harmless Tenant of,
from and against any and all expense, loss or liability suffered by Tenant by
reason of Landlord's or other tenants of the Buildings breach of any of the
provisions of this Section 15, including, but not limited to, (i) any and all
reasonable expenses that Tenant may incur in complying with any Environmental
Statutes, (ii) any and all reasonable costs that Tenant may incur in studying,
assessing, containing, removing, remedying, mitigating, or otherwise responding
to, the release of any Hazardous Substance or waste at or from the Premises,
(iii) any and all reasonable costs for which Tenant may be liable to any
governmental agency for studying, assessing, containing, removing, remedying,
mitigating, or otherwise responding to, the release of a Hazardous Substance or
waste at or from the Premises, (iv) any and all reasonable fines or penalties
assessed, or threatened to be assessed, upon Tenant by reason of a failure of
Landlord to comply with any obligations, covenants or conditions set forth in
this Section 15, and (v) any and all reasonable legal fees and costs incurred by
Tenant in connection with any of the foregoing
(j) Modifications. No subsequent modification or
termination of this Lease by agreement of the parties, or otherwise shall be
construed to waive, or to modify, any provisions of this Section 15, unless the
termination or modification agreement or other document so states in writing and
makes specific reference to this Section 15.
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(k) General Compliance. The provisions of this Section 15
shall not be construed as limiting in any respect the covenants and obligations
of Tenant under Section 14 hereof.
10. TENANT'S ALTERATIONS.
Tenant will not cut or drill into or secure any fixture, apparatus or
equipment or make alterations, improvements or physical additions (collectively,
"Alterations") of any kind to any part of the Premises without first obtaining
the written consent of Landlord, such consent not to be unreasonably withheld.
Landlord's consent shall not be required for (i) the installation of any office
equipment or fixtures including internal partitions which do not require
disturbance of any structural elements or systems (other than attachment
thereto) within the Building or (ii) minor work, including decorations, which
does not require disturbance of any structural elements or systems (other than
attachment thereto) within the Building and which costs in the aggregate less
than $50,000. If no approval is required or if Landlord approves Tenant's
Alterations and agrees to permit Tenant's contractors to do the work, Tenant,
prior to the commencement of labor or supply of any materials, must furnish to
Landlord (i) a duplicate or original policy or certificates of insurance
evidencing (a) general public liability insurance for personal injury and
property damage in the minimum amount of $1,000,000.00 combined single limit,
(b) statutory xxxxxxx'x compensation insurance, and (c) employer's liability
insurance from each contractor to be employed (all such policies shall be
non-cancelable without thirty (30) days prior written notice to Landlord and
shall be in amounts and with companies satisfactory to Landlord); (ii)
construction documents prepared and sealed by a registered New Jersey architect
if such alteration causes the aggregate of all Alterations to be in excess of
$50,000; (iii) all applicable building permits required by law; and (iv) an
executed, effective Waiver of Construction Liens from such contractors and all
sub-contractors in states allowing for such waivers or the cost of such
alteration must be bonded by Tenant. Any approval by Landlord permitting Tenant
to do any or cause any work to be done in or about the Premises shall be and
hereby is conditioned upon Tenant's work being performed by workmen and
mechanics working in harmony and not interfering with labor employed by
Landlord, Landlord's mechanics or their contractors or by any other tenant or
their contractors. If at any time any of the workmen or mechanics performing any
of Tenant's work shall be unable to work in harmony or shall interfere with any
labor employed by Landlord, other tenants or their respective mechanics and
contractors, then the permission granted by Landlord to Tenant permitting Tenant
to do or cause any work to be done in or about the Premises, may be withdrawn by
Landlord upon forty-eight (48) hours written notice to Tenant.
All Alterations (whether temporary or permanent in character) made in
or upon the Premises, either by Landlord or Tenant, shall be Landlord's property
upon installation and shall remain on the Premises without compensation to
Tenant unless Landlord provides written notice to Tenant to remove same at the
expiration of the Lease, in which event Tenant shall promptly remove such
Alterations and restore the Premises to good order and condition. All furniture,
movable trade fixtures and equipment (including telephone, security and
communication equipment system wiring and cabling) installed at Tenant's
request, Tenant, its assignees and sublessees shall be removed by Tenant at the
termination of this Lease. All such installations, removals and restoration
shall be accomplished in a good and workmanlike manner so as not to unreasonably
damage the Premises or Building and in such manner so as not to disturb other
tenants in the Building. If Tenant fails to remove any items required to be
removed pursuant to this Article, Landlord may do so and the reasonable costs
and expenses thereof shall be deemed Additional Rent hereunder and shall be
reimbursed by Tenant to Landlord within fifteen (15) business days of Tenant's
receipt of an invoice therefor from Landlord.
11. CONSTRUCTION LIENS.
(a) No Liens. Tenant will not create or suffer or permit
to be created or remain, and will discharge, any lien, encumbrance or charge
(levied on account of any imposition or any mechanic's, laborer's or
materialman's lien) which might be or become a lien, encumbrance or charge upon
the Premises or any part thereof or the income therefrom, any mechanic's notice
of intention, or any notice of refusal naming Landlord as owner, and Tenant will
not suffer any other matter or thing whereby the estate, rights and interest of
Landlord in the Premises or any part thereof might be impaired; provided that
any mechanic's, laborer's or materialman's lien, notice of intention, or notice
of refusal, may be discharged in accordance with subsection (b) of this Section.
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(b) Discharge of Liens. If any mechanic's, laborer's or
materialman's lien, or notice of intention, or notice of refusal, shall at any
time be filed against the Premises or any part thereof, or against Landlord,
Tenant, within 15 days after notice of the filing thereof, will cause it to be
discharged of record by payment, deposit, bond, order of a court of competent
jurisdiction or otherwise. If Tenant shall fail to cause such lien or notice to
be discharged within the period aforesaid, then, in addition to any other right
or remedy, Landlord may, but shall not be obligated to, discharge it either by
paying the amount claimed to be due or by procuring the discharge of such lien
or notice by deposit or by bonding proceedings, and in any such event, Landlord
shall be entitled, if Landlord so elects, to compel the prosecution of any
action for the foreclosure of any lien by the lienor and to pay the amount of
the judgment in favor of the lienor with interest, costs and allowances. Any
amount so paid by Landlord and all costs and expenses incurred by Landlord in
connection therewith, together with interest thereon at the Default Rate from
the respective dates of Landlord's making of the payments and incurring of the
costs and expenses, shall constitute additional rent payable by Tenant under
this Lease and shall be paid by Tenant to Landlord on demand.
(c) No Consent of Landlord Intended. Nothing in this
Lease contained shall be deemed or construed in any way as constituting the
consent or request of Landlord, express or implied, by inference or otherwise,
to any contractor, subcontractor, laborer or materialman for the performance of
any labor or the furnishing of any materials for any specific alteration,
addition, improvement or repair to the Premises or any part thereof, nor as
giving Tenant any right, power or authority to contract for or permit the
rendering of any services or the furnishing of any materials that would give
rise to the filing of any lien against the Premises or any part thereof, nor as
evidencing Landlord's consent that the Premises may be subject to any
mechanic's, laborer's or materialman's lien.
(d) Written Contracts. Prior to the performance of any
alterations, additions or improvements to the Premises, (i) Tenant shall enter
into a written contract with each contractor performing such work and with each
supplier providing material and supplies in connection with such work, which
contract shall provide (A) that the contractor and supplier agree that neither
they nor any subcontractors nor materialmen shall file any mechanic's or
materialman's liens, or notices of intention therefor, against the Premises or
any part thereof or any notice of refusal relating to any work upon, or material
supplied to or for, the Premises, (B) that all subcontracts and purchase orders
executed in connection with any such work shall contain agreements similar to
those referred to in (A) above, by the subcontractors and suppliers, (C) that
Tenant is entering into the contract as tenant and not on behalf of Landlord and
that all stop notices thereafter filed by any subcontractor or supplier will be
filed only against Tenant and will be binding only upon Tenant in connection
with Tenant's obligation to make payments under the construction contract; and
(ii) Tenant shall, pursuant to Title 2A N.J.S.A. ss.44-75, cause to be filed a
copy of the written contract with each such contractor and supplier and all
specifications accompanying the contract.
12. ASSIGNMENT AND SUBLETTING.
(a) Subject to the remaining subsections of Article 12,
except as expressly permitted pursuant to this section, Tenant shall not,
without the prior written consent of Landlord, such consent not to be
unreasonably withheld, assign, transfer or hypothecate this Lease or any
interest herein or sublet the Premises or any part thereof. Any of the foregoing
acts without such consent shall be void and shall, at the option of Landlord,
terminate this Lease. Subject to subparagraph 12(h) below, this Lease shall not,
nor shall any interest herein, be assignable as to the interest of Tenant by
operation of law or by merger, consolidation or asset sale, without the written
consent of Landlord.
(b) If at any time or from time to time during the term
of this Lease Tenant desires to assign this Lease or sublet all or any part of
the Premises, Tenant shall give notice to Landlord of such desire, including the
name, address and contact party for the proposed assignee or subtenant, a
description of such party's business history, the effective date of the proposed
assignment or sublease (including the proposed occupancy date by the proposed
assignee or sublessee), and in the instance of a proposed sublease, the square
footage to be subleased, a floor plan professionally drawn to scale depicting
the proposed sublease area, and a statement of the duration of the proposed
sublease (which shall in any and all events expire by its terms prior to the
scheduled expiration of this Lease, and immediately upon the sooner termination
hereof). Landlord may, at its option, and in its sole and absolute discretion,
exercisable by notice given to Tenant within forty (45) days next following
Landlord's receipt of Tenant's notice (which notice from Tenant shall, as a
condition of its effectiveness, include all of the above-enumerated
information), elect to recapture the Premises if Tenant is proposing to sublet
or assign the Premises or such portion as is proposed by Tenant to be sublet
(and in each case, the designated and non-designated parking spaces included in
this demise, or a pro-rata portion thereof in the instance of the recapture of
less than all of the Premises), and terminate this Lease with respect to the
space being recaptured.
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(c) If Landlord elects to recapture the Premises or a
portion thereof as aforesaid, then from and after the effective date thereof as
approved by Landlord, after Tenant shall have fully performed such obligations
as are enumerated herein to be performed by Tenant in connection with such
recapture, and except as to obligations and liabilities accrued and unperformed
(and any other obligations expressly stated in this Lease to survive the
expiration or sooner termination of this Lease), Tenant shall be released of and
from all lease obligations thereafter otherwise accruing with respect to the
Premises (or such lesser portion as shall have been recaptured by Landlord). The
Premises, or such portion thereof as Landlord shall have elected to recapture,
shall be delivered by Tenant to Landlord free and clear of all furniture,
furnishings, personal property and removable fixtures, with Tenant repairing and
restoring any and all damage to the Premises resulting from the installation,
handling or removal thereof, and otherwise in the same condition as Tenant is,
by the terms of this Lease, required to redeliver the Premises to Landlord upon
the expiration or sooner termination of this Lease. In the event of a sublease
of less than all of the Premises, the cost of erecting any required demising
walls, entrances and entrance corridors, and any other or further improvements
required in connection therewith, including without limitation, modifications to
HVAC, electrical, plumbing, fire, life safety and security systems (if any),
painting, wallpapering and other finish items as may be acceptable to or
specified by Landlord, all of which improvements shall be made in accordance
with applicable legal requirements and Landlord's then-standard base building
specifications, shall be performed by Landlord's contractors, and shall be
shared 50% by Tenant and 50% by Landlord. Upon the completion of any recapture
and termination as provided herein, Tenant's Fixed Rent, Recognized Expenses and
other monetary obligations hereunder shall be adjusted pro-rated based upon the
reduced rentable square footage then comprising the Premises.
If Landlord provides written notification to Tenant electing
not to recapture the Premises (or so much thereof as Tenant had
proposed to sublease), then Tenant may proceed to market the designated
space and may complete such transaction and execute an assignment of
this Lease or a sublease agreement (in each case in form acceptable to
Landlord) within a period of twelve (12) months next following
Landlord's notice to Tenant that it declines to recapture such space,
provided that Tenant shall have first obtained in any such case the
prior written consent of Landlord to such transaction, which consent
shall not be unreasonably withheld. If, however, Tenant shall not have
assigned this Lease or sublet the Premises with Landlord's prior
written consent as aforesaid within twelve (12) months next following
Landlord's notice to Tenant that Landlord declines to recapture the
Premises (or such portion thereof as Tenant initially sought to
sublease), then in such event, Tenant shall again be required to
request Landlord's consent to the proposed transaction, whereupon
Landlord's right to recapture the Premises (or such portion as Tenant
shall desire to sublease) shall be renewed upon the same terms and as
otherwise provided in subsection (b) above.
(d) For purposes of this Section 12(d), and without
limiting the basis upon which Landlord may withhold its consent to any proposed
assignment or sublease, the parties agree that it shall not be unreasonable for
Landlord to withhold its consent to such assignment or sublease if: (i) the
proposed assignee or sublessee shall have a net worth which is not acceptable to
Landlord in Landlord's reasonable discretion; (ii) the proposed assignee or
sublessee shall have no reliable credit history or an unfavorable credit
history, or other reasonable evidence exists that the proposed assignee or
sublessee will experience difficulty in satisfying its financial or other
obligations under this Lease; (iii) the proposed assignee of sublessee, in
Landlord's reasonable opinion, is not reputable and of good character; (iv) the
portion of the Premises requested to be subleased renders the balance of the
Premises unleasable as a separate area; (v) Tenant is proposing a sublease at a
rental or subrental rate which is less than the then fair market rental rate for
the portion of the Premises being subleased or assigned, or Tenant is proposing
to assign or sublease to an existing tenant of the Building or another property
owned by Landlord or by its partners, or to another prospect with whom Landlord
or its partners, or their affiliates are then negotiating; (vi) the proposed
assignee or sublessee will cause Landlord's existing parking facilities to be
reasonably inadequate, or in violation of code requirements, or require Landlord
to increase the parking area or the number of parking spaces to meet code
requirements, or the nature of such party's business shall reasonably require
more than four (4) parking spaces per 1,000 rentable square feet of floor space,
or (vii) the nature of such party's proposed business operation would or might
reasonably permit or require the use of the Premises in a manner inconsistent
with the "Permitted Use" specified herein, would or might reasonably otherwise
be in conflict with express provisions of this Lease, would or might reasonably
violate the terms of any other lease for the Building, or would, in Landlord's
reasonable judgement, otherwise be incompatible with other tenancies in the
Building.
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(e) Any sums or other economic consideration received by
Tenant as a result of any subletting, assignment or license (except rental or
other payments received which are attributable to the amortization of the cost
of leasehold improvements made to the sublet or assigned portion of the premises
by Tenant for subtenant or assignee, and other reasonable expenses incident to
the subletting or assignment, including standard leasing commissions) whether
denominated rentals under the sublease or otherwise, which exceed, in the
aggregate, the total sums which Tenant is obligated to pay Landlord under this
Lease (prorated to reflect obligations allocable to that portion of the premises
subject to such sublease or assignment) shall be divided evenly between Landlord
and Tenant, with Landlord's portion being payable to Landlord as Additional
Rental under this Lease without affecting or reducing any other obligation of
Tenant hereunder.
(f) Regardless of Landlord's consent, no subletting or
assignment shall release Tenant of Tenant's obligation or alter the primary
liability of Tenant to pay the Rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rental by Landlord from any
other person shall not be deemed to be a waiver by Landlord of any provision
hereof. Consent to one assignment or subletting shall not be deemed consent to
any subsequent assignment or subletting. In the event of default by any assignee
of Tenant or any successor of Tenant in the performance of any of the terms
hereof, Landlord may proceed directly against Tenant without the necessity of
exhausting remedies against such assignee or successor.
(g) In the event that (i) the Premises or any part
thereof are sublet and Tenant is in default under this Lease, or (ii) this Lease
is assigned by Tenant, then, Landlord may collect Rent from the assignee or
subtenant and apply the net amount collected to the rent herein reserved; but no
such collection shall be deemed a waiver of the provisions of this Article 12
with respect to assignment and subletting, or the acceptance of such assignee or
subtenant as Tenant hereunder, or a release of Tenant from further performance
of the covenants herein contained.
Tenant may, after notice to, but without the consent of Landlord,
assign this Lease to an affiliate (i.e., a corporation 50% or more of whose
capital stock is owned by the same stockholders owning 50% or more of Tenant's
capital stock), parent, subsidiary corporation of Tenant or a corporation
acquiring the Tenant t or to a corporation to which it sells or assigns all of
substantially all of its assets or stock or with which it may be consolidated or
merged ("Affiliate"), provided such purchasing, consolidated, merged, affiliated
or subsidiary corporation shall, in writing, assume and agree to perform all of
the obligations of Tenant under this Lease, shall have either (i) a net worth of
at least $5,000,000 or (ii) aggregate market value of its outstanding capital
stock of at least $5,000,000 based on the average of the closing prices of its
capital stock on the principal stock market on which shares of such corporation
are traded over the ten trading days prior to the execution and delivery of a
definitive purchase, merger or similar agreement , and it shall deliver such
assumption with a copy of such assignment to Landlord within ten (10) days
thereafter, and provided further that Tenant shall not be released or discharged
from any liability under this Lease by reason of such assignment.
(h) Anything in this Article 12 to the contrary
notwithstanding, no assignment or sublease shall be permitted under this Lease
if Tenant is in default at the time of such assignment. .
13. LANDLORD'S RIGHT OF ENTRY.
Landlord and persons authorized by Landlord may enter the Premises at
all reasonable times upon reasonable advance notice (except in the case of an
emergency in which case no prior notice is necessary) for the purpose of
inspections, repairs, alterations to adjoining space, appraisals, or other
reasonable purposes; including enforcement of Landlord's rights under this
Lease. Landlord shall not be liable for inconvenience to or disturbance of
Tenant by reason of any such entry; provided, however, that in the case of
repairs or work, such shall be done, so far as practicable, so as to not
unreasonably interfere with Tenant's use of the Premises. Provided, however,
that such efforts shall not require Landlord to use overtime labor unless Tenant
shall pay for the increased costs to be incurred by Landlord for such overtime
labor. Landlord also shall have the right to enter the Premises at all
reasonable times after giving prior written notice to Tenant, to exhibit the
Premises to any prospective purchaser and/or mortgagee. Landlord also shall have
the right to enter the Premises at all reasonable times after giving prior oral
notice to Tenant, to exhibit the Premises to any prospective tenants, within one
hundred and eighty days of the end of the Tenants Lease.
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14. REPAIRS AND MAINTENANCE.
(a) Except as specifically otherwise provided in
subparagraphs (b) and (c) of this Article, Tenant, at its sole cost and expense
and throughout the Term of this Lease, shall keep and maintain the Premises in
good order and condition, free of accumulation of dirt and rubbish, and shall
promptly make all non-structural repairs necessary to keep and maintain such
good order and condition. Tenant shall have the option of replacing lights,
ballasts, tubes, ceiling tiles, outlets and similar equipment itself or it shall
have the ability to advise Landlord of Tenant's desire to have Landlord make
such repairs. If requested by Tenant, Landlord shall make such repairs to the
Premises within a reasonable time of notice to Landlord and shall charge Tenant
for such services at Landlord's standard rate (such rate to be competitive with
the market rate for such services). When used in this Article 14, the term
"repairs" shall include replacements and renewals when necessary. All repairs
made by Tenant shall utilize materials and equipment which are at least equal in
quality and usefulness to those originally used in constructing the Building and
the Premises.
(b) Landlord, throughout the Term of this Lease and at
Landlord's sole cost and expenses, shall make all necessary repairs to the
footings and foundations and the structural steel columns and girders forming a
part of the Premises.
(c) Landlord shall maintain all HVAC systems, plumbing
and electric systems serving the Building and the Premises. Tenant's Allocated
Share of Landlord's cost for HVAC, electric and plumbing service, maintenance
and repairs, as limited under Article 6 with respect to capital expenditures,
shall be included as a portion of Recognized Expenses as provided in Article 6
hereof.
(d) Landlord, throughout the Term of this Lease, shall
make all necessary repairs to the Building outside of the Premises and the
common areas, including the roof, walls, exterior portions of the Premises and
the Building, utility lines, equipment and other utility facilities in the
Building, which serve more than one tenant of the Building, and to any
driveways, sidewalks, curbs, loading, parking and landscaped areas, and other
exterior improvements for the Building; provided, however, that Landlord shall
have no responsibility to make any repairs unless and until Landlord receives
written notice of the need for such repair or Landlord has actual knowledge of
the need to make such repair. Tenant shall pay its Allocated Share of the cost
of all repairs, as limited under Article 6 with respect to capital repairs, to
be performed by Landlord pursuant to this Paragraph 14(d) as Additional Rent as
provided in Article 6 hereof.
(e) Landlord shall keep and maintain all common areas
appurtenant to the Building and any sidewalks, parking areas, curbs and access
ways adjoining the Property in a clean and orderly condition, free of
accumulation of dirt, rubbish, snow and ice, and shall keep and maintain all
landscaped areas in a neat and orderly condition. Tenant shall pay its Allocated
Share of the cost of all work to be performed by Landlord pursuant to this
Paragraph (e) as Additional Rent as provided in Article 6 hereof. Landlord's
obligation to provide snow removal services shall be limited to the parking
areas and the sidewalk entrances to the Building.
(f) Notwithstanding anything herein to the contrary,
repairs to the Premises, Building or Project and its appurtenant common areas
made necessary by a negligent or willful act or omission of Tenant or any
employee, agent, contractor, or invitee of Tenant shall be made at the sole cost
and expense of Tenant, except to the extent of insurance proceeds received by
Landlord.
(g) Landlord shall provide Tenant with janitorial
services for the Premises Monday through Friday of each week in accordance with
the guidelines set forth in Exhibit "D" attached hereto and the Tenant shall pay
its Allocated Share of the cost thereof as Additional Rent as provided in
Article 6 hereof.
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15. INSURANCE; SUBROGATION RIGHTS.
(a) Tenant shall obtain and keep in force at all times
during the term hereof, at its own expense, commercial general liability
insurance including contractual liability and personal injury liability and all
similar coverage, with combined single limits of $1,000,000 on account of bodily
injury to or death of one or more persons as the result of any one accident or
disaster and on account of damage to property, or in such other amounts as
Landlord may from time to time require. Tenant shall also require its movers to
procure and deliver to Landlord a certificate of insurance naming Landlord as an
additional insured.
(b) Tenant shall, at its sole cost and expense, maintain
in full force and effect on all Tenant's trade fixtures, equipment and personal
property on the Premises, a policy of "special form" property insurance covering
the full replacement value of such property.
(c) All liability insurance required hereunder shall not
be subject to cancellation without at least thirty (30) days prior notice to all
insureds, and shall name Landlord, , Landlord's Agent and Tenant as insureds, as
their interests may appear, and, if requested by Landlord, shall also name as an
additional insured any mortgagee or holder of any mortgage which may be or
become a lien upon any part of the Premises. Prior to the commencement of the
Term, Tenant shall provide Landlord with certificates which evidence that the
coverages required have been obtained for the policy periods. Tenant shall also
furnish to Landlord throughout the term hereof replacement certificates at least
thirty (30) days prior to the expiration dates of the then current policy or
policies. All the insurance required under this Lease shall be issued by
insurance companies authorized to do business in the Commonwealth of New Jersey
with a financial rating of at least an A-X as rated in the most recent edition
of Best's Insurance Reports and in business for the past five years. The limit
of any such insurance shall not limit the liability of Tenant hereunder. If
Tenant fails to procure and maintain such insurance, Landlord may, but shall not
be required to, procure and maintain the same, at Tenant's expense to be
reimbursed by Tenant as Additional Rent within ten (10) days of written demand.
Any deductible under such insurance policy or self-insured retention under such
insurance policy in excess of Twenty Five Thousand ($25,000) must be approved by
Landlord in writing prior to issuance of such policy. Tenant shall not
self-insure without Landlord's prior written consent. The policy limits set
forth herein shall be subject to periodic review, and Landlord reserves the
right to require that Tenant increase the liability coverage limits if, in the
reasonable opinion of Landlord, the coverage becomes inadequate or is less than
commonly maintained by tenants of similar buildings in the area making similar
uses.
(d) Landlord shall obtain and maintain the following
insurance during the Term of this Lease: (i) replacement cost insurance
including "special form" property insurance on the Building and on the Project,
(ii) builder's risk insurance for the Landlord Work to be constructed by
Landlord in the Project, and (iii) commercial general liability insurance
(including bodily injury and property damage) covering Landlord's operations at
the Project in amounts reasonably required by the Landlord's lender or Landlord.
(e) Each party hereto, and anyone claiming through or
under them by way of subrogation, waives and releases any cause of action it
might have against the other party and their respective employees, officers,
members, partners, trustees and agents, on account of any loss or damage that is
insured against under any insurance policy required to be obtained hereunder (to
the extent that such loss or damage is recoverable under such insurance policy)
that covers the Project, Building or Premises, Landlord's or Tenant's fixtures,
personal property, leasehold improvements or business and which names Landlord
and or Tenant, as the case may be, as a party insured. Each party hereto agrees
that it will cause its insurance carrier to endorse all applicable policies
waiving the carrier's right of recovery under subrogation or otherwise against
the other party. During any period while such waiver of right of recovery is in
effect, each party shall look solely to the proceeds of such policies for
compensation for loss, to the extent such proceeds are paid under such policies.
16. INDEMNIFICATION.
Tenant shall defend, indemnify and hold harmless Landlord, BET
Investments, Inc. and its respective employees and agents from and against any
and all third-party claims, actions, damages, liability and expense (including
all reasonable attorney's fees, expenses and liabilities incurred in defense of
any such claim or any action or proceeding brought thereon) arising from (i)
Tenant's improper use of the Premises, (ii) the improper conduct of Tenant's
business, (iii) any activity, work or things done, permitted or suffered by
Tenant or its agents, licensees or invitees in or about the Premises or
elsewhere contrary to the requirements of the Lease, (iv) any breach or default
in the performance of any obligation of Tenant's part to be performed under the
terms of this Lease, and (v) any negligence or willful act of Tenant or any of
Tenant's agents, contractors, employees or invitees. Without limiting the
generality of the foregoing, Tenant's obligations shall include any case in
which Landlord or shall be made a party to any litigation commenced by or
against Tenant, its agents, subtenants, licensees, concessionaires, contractors,
customers or employees, then Tenant shall defend, indemnify and hold harmless
Landlord and shall pay all costs, expenses and reasonable attorney's fees
incurred or paid by Landlord and in connection with such litigation, after
notice to Tenant and Tenant's refusal to defend such litigation, and upon notice
from Landlord shall defend the same at Tenant's expense by counsel satisfactory
to Landlord.
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Landlord shall defend, indemnify and hold harmless Tenant, EasyLink
Services Corporation, Inc. and its respective employees and agents from and
against any and all third-party claims, actions, damages, liability and expense
(including all reasonable attorney's fees, expenses and liabilities incurred in
defense of any such claim or any action or proceeding brought thereon) arising
from (i)Landlord's improper use of the Premises, (ii) the improper conduct of
Landlord 's business, (iii) any activity, work or things done, permitted or
suffered by Landlord or its agents, licensees or invitees in or about the
Premises or elsewhere contrary to the requirements of the Lease, (iv) any breach
or default in the performance of any obligation of Landlord 's part to be
performed under the terms of this Lease, and (v) any negligence or willful act
of Landlord or any of Landlord 's agents, contractors, employees or invitees.
Without limiting the generality of the foregoing, Landlord 's obligations shall
include any case in which Tenant shall be made a party to any litigation
commenced by or against Landlord, its agents, subtenants, licensees,
concessionaires, contractors, customers or employees, then Landlord shall
defend, indemnify and hold harmless Tenant and shall pay all costs, expenses and
reasonable attorney's fees incurred or paid by Tenant and in connection with
such litigation, after notice to Landlord and Landlord's refusal to defend such
litigation, and upon notice from Tenant shall defend the same at Landlord's
expense by counsel satisfactory to Tenant.
17. QUIET ENJOYMENT.
Provided Tenant has performed all of the terms and conditions of this
Lease, including the payment of Fixed Rent and Additional Rent, to be performed
by Tenant, Tenant shall peaceably and quietly hold and enjoy the Premises for
the Term, without hindrance from Landlord, or anyone claiming by through or
under Landlord under and subject to the terms and conditions of this Lease and
of any mortgages now or hereafter affecting all of or any portion of the
Premises.
18. FIRE DAMAGE.
(a) Except as provided below, in case of damage to the
Premises by fire or other insured casualty, Landlord shall repair the damage.
Such repair work shall be commenced promptly following notice of the damage and
completed with due diligence, taking into account the time required for Landlord
to effect a settlement with and procure insurance proceeds from the insurer,
except for delays due to governmental regulation, scarcity of or inability to
obtain labor or materials, intervening acts of God or other causes beyond
Landlord's reasonable control.
(b) Notwithstanding the foregoing, if (i) the damage is
of a nature or extent that, in Landlord's reasonable judgment (to be
communicated to Tenant within sixty (60) days from the date of the casualty),
the repair and restoration work would require more than two hundred ten (210)
consecutive days to complete after the casualty (assuming normal work crews not
engaged in overtime), or (ii) if more than thirty (30%) percent of the total
area of the Premises is extensively damaged, or (iii) the casualty occurs in the
last Lease Year of the Term and Tenant has not exercised a renewal right, either
party shall have the right to terminate this Lease and all the unaccrued
obligations of the parties hereto, by sending written notice of such termination
to the other within ten (10) days of Tenant's receipt of the notice from
Landlord described above. Such notice is to specify a termination date no less
than fifteen (15) days after its transmission.
(c) If the insurance proceeds received by Landlord as
dictated by the terms and conditions of any financing then existing on the
Building, (excluding any rent insurance proceeds) would not be sufficient to pay
for repairing the damage or are required to be applied on account of any
mortgage which encumbers any part of the Premises or Building, or if the nature
of loss is not covered by Landlord's fire insurance coverage, Landlord may elect
either to (i) repair the damage as above provided notwithstanding such fact or
(ii) terminate this Lease by giving Tenant notice of Landlord's election as
aforesaid.
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(d) In the event Landlord has not completed restoration
of the Premises within two hundred ten (210) days from the date of casualty
(subject to delay due to weather conditions, shortages of labor or materials or
other reasons beyond Landlord's control, Tenant may terminate this Lease by
written notice to Landlord within thirty (30) business days following the
expiration of such 210 day period (as extended for reasons beyond Landlord's
control as provided above) unless, within thirty (30) business days following
receipt of such notice, Landlord has substantially completed such restoration
and delivered the Premises to Tenant for occupancy. Notwithstanding the
foregoing, in the event Tenant is responsible for the aforesaid casualty, Tenant
shall not have the right to terminate this Lease if Landlord is willing to
rebuild and restore the Premises.
(e) In the event of damage or destruction to the Premises
or any part thereof, Tenant's obligation to pay Fixed Rent and Additional Rent
shall be equitably adjusted or abated.
19. SUBORDINATION; RIGHTS OF MORTGAGEE.
(a) This Lease shall be subject and subordinate at all
times to the lien of any mortgages now or hereafter placed upon the Premises,
Building and/or Project and land of which they are a part without the necessity
of any further instrument or act on the part of Tenant to effectuate such
subordination. Tenant further agrees to execute and deliver upon demand such
further instrument or instruments evidencing such subordination of this Lease to
the lien of any such mortgage and such further instrument or instruments of
attornment as shall be desired by any mortgagee or proposed mortgagee or by any
other person. Notwithstanding the foregoing, any mortgagee may at any time
subordinate its mortgage to this Lease, without Tenant's consent, by notice in
writing to Tenant, and thereupon this Lease shall be deemed prior to such
mortgage without regard to their respective dates of execution and delivery and
in that event such mortgagee shall have the same rights with respect to this
Lease as though it had been executed prior to the execution and delivery of the
mortgage. Upon written request of Tenant, Landlord shall use its reasonable
efforts to deliver a subordination, attornment and nondisturbance agreement
("Nondisturbance Agreement") from Landlord's Mortgagee, on each such mortgagee's
standard form, which shall provide, inter alia, that the leasehold estate
granted to Tenant under this Lease will not be terminated or disturbed by reason
of the foreclosure of the mortgage held by Landlord's Mortgagee, so long as
Tenant shall not be in default under this Lease and shall pay all sums due under
this Lease without offsets or defenses thereto and shall fully perform and
comply with all of the terms, covenants and conditions of this Lease on the part
of Tenant to be performed and/or complied with, and in the event a mortgagee or
its respective successor or assigns shall enter into and lawfully become
possessed of the Premises covered by this Lease and shall succeed to the rights
of Landlord hereunder, Tenant will attorn to the successor as its landlord under
this Lease and, upon the request of such successor landlord, Tenant will execute
and deliver an attornment agreement in favor of the successor landlord.
(b) In the event Landlord shall be or is alleged to be in
default of any of its obligations owing to Tenant under this Lease, Tenant
agrees to give to the holder of any mortgage (collectively the "Mortgagee") now
or hereafter placed upon the Premises, Building and/or Project, notice by
overnight mail of any such default which Tenant shall have served upon Landlord,
provided that prior thereto Tenant has been notified in writing (by way of
Notice of Assignment of Rents and/or Leases or otherwise in writing to Tenant)
of the name and addresses of any such Mortgagee. Tenant shall not be entitled to
exercise any right or remedy as there may be because of any default by Landlord
without having given such notice to the Mortgagee; and Tenant further agrees
that if Landlord shall fail to cure such default the Mortgagee shall have
forty-five (45) additional days (measured from the later of the date on which
the default should have been cured by Landlord or the Mortgagee's receipt of
such notice from Tenant), within which to cure such default, provided that if
such default be such that the same could not be cured within such period and
Mortgagee is diligently pursuing the remedies necessary to effectuate the cure
(including but not limited to foreclosure proceedings if necessary to effectuate
the cure); then Tenant shall not exercise any right or remedy as there may be
arising because of Landlord's default, including but not limited to, termination
of this Lease as may be expressly provided for herein or available to Tenant as
a matter of law, if the Mortgagee either has cured the default within such time
periods, or as the case may be, has initiated the cure of same within such
period and is diligently pursuing the cure of same as aforesaid.
20. CONDEMNATION.
(a) If more than twenty (20%) percent of the floor area
of the Premises is taken or condemned for a public or quasi-public use (a sale
in lieu of condemnation to be deemed a taking or condemnation for purposes of
this Lease), this Lease shall, at either party's option, terminate as of the
date title to the condemned real estate vests in the condemnor, and the Fixed
Rent and Additional Rent herein reserved shall be apportioned and paid in full
by Tenant to Landlord to that date and all rent prepaid for period beyond that
date shall forthwith be repaid by Landlord to Tenant and neither party shall
thereafter have any liability hereunder.
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(b) If less than twenty (20%) percent of the floor area
of the Premises is taken or if neither Landlord nor Tenant have elected to
terminate this Lease pursuant to the preceding sentence, Landlord shall do such
work as may be reasonably necessary to restore the portion of the Premises not
taken to tenantable condition for Tenant's uses, but shall not be required to
expend more than the net award Landlord reasonably expects to be available for
restoration of the Premises. If Landlord determines that the damages available
for restoration of the Building and/or Project will not be sufficient to pay the
cost of restoration, or if the condemnation damage award is required to be
applied on account of any mortgage which encumbers any part of the Premises,
Building and/or Project, Landlord may terminate this Lease by giving Tenant
thirty (30) days prior notice specifying the termination date.
(c) If this Lease is not terminated after any such taking
or condemnation, the Fixed Rent and the Additional Rent shall be equitably
reduced in proportion to the area of the Premises which has been taken for the
balance of the Term.
(d) If a part or all of the Premises shall be taken or
condemned, all compensation awarded upon such condemnation or taking shall go to
Landlord and Tenant shall have no claim thereto other than Tenant's damages
associated with moving, storage and relocation; and Tenant hereby expressly
waives, relinquishes and releases to Landlord any claim for damages or other
compensation to which Tenant might otherwise be entitled because of any such
taking or limitation of the leasehold estate hereby created, and irrevocably
assigns and transfers to Landlord any right to compensation of all or a part of
the Premises or the leasehold estate.
21. ESTOPPEL CERTIFICATE.
(a) Each party agrees at any time and from time to time,
within ten (10) days after the other party's written request, to execute,
acknowledge and deliver to the other party a written instrument in recordable
form certifying all information reasonably requested, including but not limited
to, the following: that this Lease is unmodified and in full force and effect
(or if there have been modifications, that it is in full force and effect as
modified and stating the modifications), the Commencement Date, the expiration
date of this Lease, the square footage of the Premises, the rental rates
applicable to the Premises, the dates to which Rent, Additional Rent, and other
charges have been paid in advance, if any, and stating whether or not to the
best knowledge of the party signing such certificate, the requesting party is in
default in the performance of any covenant, agreement or condition contained in
this Lease and, if so, specifying each such default of which the signer may have
knowledge. It is intended that any such certification and statement delivered
pursuant to this Article may be relied upon by any prospective purchaser of the
Project or any mortgagee thereof or any assignee of Landlord's interest in this
Lease or of any mortgage upon the fee of the Premises or any part thereof.
22. DEFAULT.
If:
(a) Tenant fails to pay any installment of Fixed Rent or
any amount of Additional Rent when due; provided, however, Landlord shall
provide written notice of the failure to pay such Rent and Tenant shall have a
Five (5) business day grace period from its receipt of such Landlord's notice
(facsimile receipt being deeded to be notice hereunder) within which to pay such
Rent without creating a default hereunder. The late fee set forth in Article 5
hereof shall be due on the fifth day after such payment is due irrespective of
the foregoing notice and grace period. No additional notice shall be required
thereafter and Landlord shall be entitled to immediately exercise its remedies
hereunder if payment is not received during the grace period;
(b) Tenant "vacates" the Premises (other than in the case
of a permitted subletting or assignment) or permits the same to be unoccupied.
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(c) Tenant fails to bond over a construction or mechanics
lien within the time period set forth in Article 11,
(d) Tenant fails to observe or perform any of Tenant's
other non-monetary agreements or obligations herein contained within thirty (30)
days after written notice specifying the default, or the expiration of such
additional time period as is reasonably necessary to cure such default, provided
Tenant immediately commences and thereafter proceeds with all due diligence and
in good faith to cure such default,
(e) Tenant makes any assignment for the benefit of
creditors,
(f) a petition is filed or any proceeding is commenced
against Tenant or by Tenant under any federal or state bankruptcy or insolvency
law and such petition or proceeding is not dismissed within thirty (30) days,
a receiver or other official is appointed for Tenant or for a substantial part
of Tenant's assets or for Tenant's interests in this Lease,
If an Event of Default shall occur, the following provisions shall
apply and Landlord shall have, in addition to all other rights and remedies
available at law or in equity, the rights and remedies set forth therein, which
rights and remedies may be exercised upon or at any time following the
occurrence of an Event of Default unless, prior to such exercise, Landlord shall
agree in writing with Tenant that the Event(s) of Default has been cured by
Tenant in all respects.
(g) Acceleration of Rent. By notice to Tenant, Landlord
shall have the right to accelerate all Fixed Rent and all expense installments
due hereunder and otherwise payable in installments over the remainder of the
Term, and, at Landlord's option, any other Additional Rent to the extent that
such Additional Rent can be determined and calculated to a fixed sum; and the
amount of accelerated rent to the termination date, without further notice or
demand for payment, shall be due and payable by Tenant within twenty (20) days
after Landlord has so notified Tenant, such amount collected from Tenant shall
be discounted to present value using an interest rate of six percent (6%) per
annum. Additional Rent which has not been included, in whole or in part, in
accelerated rent, shall be due and payable by Tenant during the remainder of the
Term, in the amounts and at the times otherwise provided for in this Lease.
Notwithstanding the foregoing or the application of any rule of law
based on election of remedies or otherwise, if Tenant fails to pay the
accelerated rent in full when due, Landlord thereafter shall have the right by
notice to Tenant, (i) to terminate Tenant's further right to possession of the
Premises and (ii) to terminate this Lease under subparagraph (b) below; and if
Tenant shall have paid part but not all of the accelerated rent, the portion
thereof attributable to the period equivalent to the part of the Term remaining
after Landlord's termination of possession or termination of this Lease shall be
applied by Landlord against Tenant's obligations owing to Landlord, as
determined by the applicable provisions of subparagraphs (c) and (d) below.
(h) Termination of Lease. By notice to Tenant, Landlord
shall have the right to terminate this Lease as of a date specified in the
notice of termination and in such case, Tenant's rights, including any based on
any option to renew, to the possession and use of the Premises shall end
absolutely as of the termination date; and this Lease shall also terminate in
all respects except for the provisions hereof regarding Landlord's damages and
Tenant's liabilities arising prior to, out of and following the Event of Default
and the ensuing termination.
Following such termination and the notice of same provided above (as
well as upon any other termination of this Lease by expiration of the Term or
otherwise) Landlord immediately shall have the right to recover possession of
the Premises; and to that end, Landlord may enter the Premises and take
possession, without the necessity of giving Tenant any notice to quit or any
other further notice, with or without legal process or proceedings, and in so
doing Landlord may remove Tenant's property (including any improvements or
additions to the Premises which Tenant made, unless made with Landlord's consent
which expressly permitted Tenant to not remove the same upon expiration of the
Term), as well as the property of others as may be in the Premises, and make
disposition thereof in such manner as Landlord may deem to be commercially
reasonable and necessary under the circumstances.
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(i) Tenant's Continuing Obligations/Landlord's Reletting
Rights.
(i) Unless and until Landlord shall have
terminated this Lease under subparagraph (b) above, Tenant shall remain fully
liable and responsible to perform all of the covenants and to observe all the
conditions of this Lease throughout the remainder of the Term to the early
termination date; and, in addition, Tenant shall pay to Landlord, upon demand
and as Additional Rent, the total sum of all costs, losses, damages and
expenses, including reasonable attorneys' fees, as Landlord incurs, directly or
indirectly, because of any Event of Default having occurred.
(ii) If Landlord either terminates Tenant's right
to possession without terminating this Lease or terminates this Lease and
Tenant's leasehold estate as above provided, then, subject to the provisions
below, Landlord shall have the unrestricted right to relet the Premises or any
part(s) thereof to such tenant(s) on such provisions and for such period(s) as
Landlord may deem appropriate. If Landlord relets the Premises after such a
default, the costs recovered from Tenant shall be reallocated to take into
consideration any additional rent which Landlord receives from the new tenant
which is in excess to that which was owed by Tenant.
(j) Landlord's Damages.
(i) The damages which Landlord shall be entitled
to recover from Tenant shall be the sum of:
(A) all Fixed Rent and Additional Rent
accrued and unpaid as of the termination date; and
(B) (i) all costs and expenses incurred
by Landlord in recovering possession of the Premises, including removal and
storage of Tenant's property, (ii) the costs and expenses of restoring the
Premises to the condition in which the same were to have been surrendered by
Tenant as of the expiration of the Term, and (iii) the costs of reletting
commissions; and
(C) all Fixed Rent and Additional Rent
(to the extent that the amount(s) of Additional Rent has been then determined)
otherwise payable by Tenant over the remainder of the Term as reduced to present
value.
Less deducting from the total determined under subparagraphs (A), (B) and (C)
all Rent and all other Additional Rent to the extent determinable as aforesaid,
(to the extent that like charges would have been payable by Tenant) which
Landlord receives from other tenant(s) by reason of the leasing of the Premises
or part during or attributable to any period falling within the otherwise
remainder of the Term.
(ii) The damage sums payable by Tenant under the
preceding provisions of this paragraph (d) shall be payable on demand from time
to time as the amounts are determined; and if from Landlord's subsequent receipt
of rent as aforesaid from reletting, there be any excess payment(s) by Tenant by
reason of the crediting of such rent thereafter received, the excess payment(s)
shall be refunded by Landlord to Tenant, without interest.
(iii) Landlord may enforce and protect the rights
of Landlord hereunder by a suit or suits in equity or at law for the specific
performance of any covenant or agreement contained herein, and for the
enforcement of any other appropriate legal or equitable remedy, including,
without limitation, injunctive relief, and for recovery of consequential damages
and all moneys due or to become due from Tenant under any of the provisions of
this Lease.
(k) Landlord's Right to Cure. Without limiting the
generality of the foregoing, if Tenant shall be in default in the performance of
any of its obligations hereunder, Landlord, without being required to give
Tenant any notice or opportunity to cure, may (but shall not be obligated to do
so), in addition to any other rights it may have in law or in equity, cure such
default on behalf of Tenant, and Tenant shall reimburse Landlord upon demand for
any sums paid or costs incurred by Landlord in curing such default, including
reasonable attorneys' fees and other legal expenses, together with interest at
10% per annum Rate from the dates of Landlord's incurring of costs or expenses.
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(l) Additional Remedies. In addition to, and not in lieu
of any of the foregoing rights granted to Landlord:
(m) Interest on Damage Amounts. Any sums payable by
Tenant hereunder, which are not paid after the same shall be due, shall bear
interest from that day until paid at the rate of two (2%) percent, less any late
payment charges paid by the Tenant, over the then Prime Rate as published daily
under the heading "Money Rates" in The Wall Street Journal, unless such rate be
usurious as applied to Tenant, in which case the highest permitted legal rate
shall apply (the "Default Rate").
(n) Landlord's Statutory Rights. Landlord shall have all
rights and remedies now or hereafter existing at law or in equity with respect
to the enforcement of Tenant's obligations hereunder and the recovery of the
Premises. No right or remedy herein conferred upon or reserved to Landlord shall
be exclusive of any other right or remedy, but shall be cumulative and in
addition to all other rights and remedies given hereunder or now or hereafter
existing at law. Landlord shall be entitled to injunctive relief in case of the
violation, or attempted or threatened violation, of any covenant, agreement,
condition or provision of this Lease, or to a decree compelling performance of
any covenant, agreement, condition or provision of this Lease.
(o) Remedies Not Limited. Nothing herein contained shall
limit or prejudice the right of Landlord to exercise any or all rights and
remedies available to Landlord by reason of default or to prove for and obtain
in proceedings under any bankruptcy or insolvency laws, an amount equal to the
maximum allowed by any law in effect at the time when, and governing the
proceedings in which, the damages are to be proved, whether or not the amount be
greater, equal to, or less than the amount of the loss or damage referred to
above.
No Waiver by Landlord. No delay or forbearance by Landlord in
exercising any right or remedy hereunder, or Landlord's undertaking or
performing any act or matter which is not expressly required to be undertaken by
Landlord shall be construed, respectively, to be a waiver of Landlord's rights
or to represent any agreement by Landlord to undertake or perform such act or
matter thereafter. Waiver by Landlord of any breach by Tenant of any covenant or
condition herein contained (which waiver shall be effective only if so expressed
in writing by Landlord) or failure by Landlord to exercise any right or remedy
in respect of any such breach shall not constitute a waiver or relinquishment
for the future of Landlord's right to have any such covenant or condition duly
performed or observed by Tenant, or of Landlord's rights arising because of any
subsequent breach of any such covenant or condition nor bar any right or remedy
of Landlord in respect of such breach or any subsequent breach. Landlord's
receipt and acceptance of any payment from Tenant which is tendered not in
conformity with the provisions of this Lease or following an Event of Default
(regardless of any endorsement or notation on any check or any statement in any
letter accompanying any payment) shall not operate as an accord and satisfaction
or a waiver of the right of Landlord to recover any payments then owing by
Tenant which are not paid in full, or act as a bar to the termination of this
Lease and the recovery of the Premises because of Tenant's previous default.
23. LANDLORD'S LIEN.
Landlord shall be entitled to any applicable common law or statutory
liens that it may have at law
24. LANDLORD'S REPRESENTATIONS AND WARRANTIES.
Landlord represents and warrants to Tenant that: (a) Landlord is the
owner of the Building and the Project; (b) Landlord has the authority to enter
into this Lease and (c) the person executing this Lease is duly authorized to
execute and deliver this Lease on behalf of Landlord.
-22-
25. SURRENDER.
Tenant shall, at the expiration of the Term, promptly quit and
surrender the Premises in good order and condition and in conformity with the
applicable provisions of this Lease, excepting only reasonable wear and tear and
damage by fire or other insured casualty. Tenant shall have no right to hold
over beyond the expiration of the Term and in the event Tenant shall fail to
deliver possession of the Premises as herein provided, such occupancy shall not
be construed to effect or constitute other than a tenancy at sufferance. During
any period of occupancy beyond the expiration of the Term the amount of rent
owed to Landlord by Tenant shall automatically become one hundred fifty percent
(150%) the sum of the Rent as those sums are at that time calculated under the
provisions of the Lease. If Tenant fails to surrender the space within thirty
(30) days of the termination date, Landlord may elect to automatically extend
the Term for an additional month, at Landlord's option, with a Rent of one
hundred fifty percent (150%) the sum of the Rent as those sums are at that time
calculated under the provisions of the Lease. The acceptance of rent by Landlord
or the failure or delay of Landlord in notifying or evicting Tenant following
the expiration or sooner termination of the Term shall not create any tenancy
rights in Tenant and any such payments by Tenant may be applied by Landlord
against its costs and expenses, including attorney's fees, incurred by Landlord
as a result of such holdover.
26. RULES AND REGULATIONS.
Tenant agrees that at all times during the terms of this Lease (as same
may be extended) it, its employees, agents, invitees and licenses shall comply
with all rules and regulations specified on Exhibit "C" attached hereto and made
a part hereof, together with all reasonable Rules and Regulations as Landlord
may from time to time promulgate provided they do not increase the financial
burdens of Tenant or unreasonably restrict Tenant's rights under this Lease.
Tenant's right to dispute the reasonableness of any changes in or additions to
the Rules and Regulations shall be deemed waived unless asserted to Landlord
within ten (10) business days after Landlord shall have given Tenant written
notice of any such adoption or change. In case of any conflict or inconsistency
between the provisions of this Lease and any Rules and Regulations, the
provisions of this Lease shall control. Landlord shall have no duty or
obligation to enforce any Rule and Regulation, or any term, covenant or
condition of any other lease, against any other tenant, and Landlord's failure
or refusal to enforce any Rule or Regulation or any term, covenant of condition
of any other lease against any other tenant shall be without liability of
Landlord to Tenant. However, if Landlord does enforce Rules or Regulations,
Landlord shall endeavor to enforce same equally in a non-discriminatory manner.
27. GOVERNMENTAL REGULATIONS.
(p) Tenant shall, in the use and occupancy of the
Premises and the conduct of Tenant's business or profession therein, at all
times comply with all applicable laws, ordinances, orders, notices, rules and
regulations of the federal, state and municipal governments, or any of their
departments and the regulations of the insurers of the Premises, Building and/or
Project.
(q) Without limiting the generality of the foregoing,
Tenant shall (i) obtain, at Tenant's expense, before engaging in Tenant's
business or profession within the Premises, all necessary licenses and permits
including (but not limited to) state and local business licenses or permits, and
(ii) remain in compliance with and keep in full force and effect at all times
all licenses, consents and permits necessary for the lawful conduct of Tenant's
business or profession at the Premises. Tenant shall pay all personal property
taxes, income taxes and other taxes, assessments, duties, impositions and
similar charges which are or may be assessed, levied or imposed upon Tenant and
which, if not paid, could be liened against the Premises or against Tenant's
property therein or against Tenant's leasehold estate.
(r) Landlord shall be responsible for compliance with
Title III of the Americans with Disabilities Act of l990, 42 U.S.C. '12181 et
seq. and its regulations, (collectively, the "ADA") (i) as to the design and
construction of exterior common areas (e.g. sidewalks and parking areas) and
(ii) with respect to the initial design and construction by Landlord of
Landlord's Work (as defined in Article 4 hereof). Except as set forth above in
the initial sentence hereto, Tenant shall be responsible for compliance with the
ADA in all other respects concerning the use and occupancy of the Premises,
which compliance shall include, without limitation (i) provision for full and
equal enjoyment of the goods, services, facilities, privileges, advantages or
accommodations of the Premises as contemplated by and to the extent required by
the ADA, (ii) compliance relating to requirements under the ADA or amendments
thereto arising after the date of this Lease and (iii) compliance relating to
the design, layout, renovation, redecorating, refurbishment, alteration, or
improvement to the Premises made or requested by Tenant at any time following
completion of the Landlord's Work.
-23-
28. NOTICES.
Wherever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other
party, such notice or demand shall be deemed to have been duly given or served
if in writing and either: (i) personally served; (ii) delivered by pre-paid
nationally recognized overnight courier service (e.g. Federal Express) with
evidence of receipt required for delivery; (iii) forwarded by Registered or
Certified mail, return receipt requested, postage prepaid; (iv) facsimile with a
copy mailed by first class United States mail or (v) e-mailed with evidence of
receipt and delivery of a copy of the notice by first class mail; in all such
cases addressed to the parties at the addresses set forth in Article 1(l)
hereof. Each such notice shall be deemed to have been given to or served upon
the party to which addressed on the date the same is delivered or delivery is
refused. Either party hereto may change its address to which said notice shall
be delivered or mailed by giving written notice of such change to the other
party hereto, as herein provided.
29. BROKERS.
Landlord and Tenant each represents and warrants to the other that such
party has had no dealings, negotiations or consultations with respect to the
Premises or this transaction with any broker or finder other than the Broker
identified in Article 1(k); and that otherwise no broker or finder called the
Premises to Tenant's attention for lease or took any part in any dealings,
negotiations or consultations with respect to the Premises or this Lease. Each
party agrees to indemnify and hold the other harmless from and against all
liability, cost and expense, including attorney's fees and court costs, arising
out of any misrepresentation or breach of warranty under this Article. [Is this
true? There is a defined Broker, the Xxxxxxxx Company, in the beginning of the
Lease]
30. CHANGE OF BUILDING/PROJECT NAME.
Landlord reserves the right at any time and from time to time to change
the name by which the Building and/or Project is designated. Landlord agrees to
pay for the reasonably documented costs of stationery charges (including
letterhead and cards) necessitated by any such name change, such cost not to
exceed five thousand ($5,000.00) dollars.
31. LANDLORD'S LIABILITY.
Landlord's obligations hereunder shall be binding upon Landlord only
for the period of time that Landlord is in ownership of the Building; and, upon
termination of that ownership, Tenant, except as to any obligations which are
then due and owing, shall look solely to Landlord's successor in interest in the
Building for the satisfaction of each and every obligation of Landlord
hereunder. Landlord shall have no personal liability under any of the terms,
conditions or covenants of this Lease and Tenant shall look solely to the equity
of Landlord in the Building of which the Premises form a part for the
satisfaction of any claim, remedy or cause of action accruing to Tenant as a
result of the breach of any section of this Lease by Landlord. In addition to
the foregoing, no recourse shall be had for an obligation of Landlord hereunder,
or for any claim based thereon or otherwise in respect thereof, against any
past, present or future trustee, member, partner, shareholder, officer,
director, partner, agent or employee of Landlord, whether by virtue of any
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such other liability being expressly waived and released by
Tenant with respect to the above-named individuals and entities.
32. AUTHORITY.
Tenant represents and warrants that (a) Tenant is duly organized,
validly existing and legally authorized to do business in the Commonwealth of
New Jersey, and (b) the persons executing this Lease are duly authorized to
execute and deliver this Lease on behalf of Tenant.
33. NO OFFER.
The submission of the Lease by Landlord to Tenant for examination does
not constitute a reservation of or option for the Premises or of any other space
within the Building or in other buildings owned or managed by Landlord or its
affiliates. This Lease shall become effective as a Lease only upon the execution
and legal delivery thereof by both parties hereto.
34. TENANT FINANCIAL INFORMATION.
If at any time and from time to time during the Term if the Tenant is
no longer listed on a public stock exchange (but not more than once during any
twelve month period unless a default has occurred under this Lease or Landlord
has a reasonable basis to suspect that Tenant has suffered a material adverse
change in its financial position) upon not less than thirty (30) days prior
written request from Landlord, Tenant shall deliver to Landlord: (i) a copy of
its currently available audited financials and any balance sheet or income
statements available for the fiscal quarter in which the Landlord makes its
request. Landlord shall keep all information provided hereunder strictly
confidential.
35. EXPANSION.
Tenant may notify Landlord at any time during the initial Term that
Tenant desires to lease additional space within the portfolio of properties
owned or controlled by Landlord BET Investments, Inc. or any affiliate thereof
("BET Portfolio"), which additional space must represent an expansion of at
least 50% from the Premises on a square foot basis. Subject to Tenant not being
in default, nor Tenant ever having been in default under this Lease, Landlord
shall notify Tenant with regard to space that is available for lease within the
BET Portfolio that meets the requirements set forth above, if any such space is
available and Landlord shall propose to Tenant the basic economic terms upon
which Landlord would be prepared to entertain the negotiation of a new lease for
such space. Provided Landlord and Tenant negotiate, execute and deliver a lease
for such space containing terms and conditions mutually acceptable to Landlord
and Tenant in their sole discretion, Landlord and tenant shall terminate this
Lease.
-24-
36. MISCELLANEOUS PROVISIONS.
(s) Successors. The respective rights and obligations
provided in this Lease shall bind and inure to the benefit of the parties
hereto, their successors and assigns; provided, however, that no rights shall
inure to the benefit of any successors or assigns of Tenant unless Landlord's
written consent for the transfer to such successor and/or assignee has first
been obtained as provided in Article 12 hereof.
(t) Governing Law. This Lease shall be construed,
governed and enforced in accordance with the laws of the State of New Jersey,
without regard to principles relating to conflicts of law.
(u) Severability. If any provisions of this Lease shall
be held to be invalid, void or unenforceable, the remaining provisions hereof
shall in no way be affected or impaired and such remaining provisions shall
remain in full force and effect.
(v) Captions. Marginal captions, titles or exhibits and
riders and the table of contents in this Lease are for convenience and reference
only, and are in no way to be construed as defining, limiting or modifying the
scope or intent of the various provisions of this Lease.
(w) Gender. As used in this Lease, the word "person"
shall mean and include, where appropriate, an individual, corporation,
partnership or other entity; the plural shall be substituted for the singular,
and the singular for the plural, where appropriate; and the words of any gender
shall mean to include any other gender.
(x) Entire Agreement. This Lease, including the Exhibits,
the Side Letter dated June , 2002 between the parties and any Riders hereto
(which are hereby incorporated by this reference, except that in the event of
any conflict between the printed portions of this Lease and any Exhibits or
Riders, the term of such Exhibits or Riders shall control), supersedes any prior
discussions, proposals, negotiations and discussions between the parties and the
Lease contains all the agreements, conditions, understandings, representations
and warranties made between the parties hereto with respect to the subject
matter hereof, and may not be modified orally or in any manner other than by an
agreement in writing signed by both parties hereto or their respective
successors in interest. Without in any way limiting the generality of the
foregoing, this Lease can only be extended pursuant to the terms hereof, and in
Tenant's case, with the terms hereof, with the due exercise of an option (if
any) contained herein pursuant to a written agreement signed by both Landlord
and Tenant specifically extending the term. No negotiations, correspondence by
Landlord or offers to extend the term shall be deemed an extension of the
termination date for any period whatsoever.
(y) Counterparts. This Lease may be executed in any
number of counterparts, each of which when taken together shall be deemed to be
one and the same instrument.
(z) Telefax Signatures. The parties acknowledge and agree
that notwithstanding any law or presumption to the contrary a telefaxed
signature of either party whether upon this Lease or any related document shall
be deemed valid and binding and admissible by either party against the other as
if same were an original ink signature.
(aa) Calculation of Time. In computing any period of time
prescribed or allowed by any provision of this Lease, the day of the act, event
or default from which the designated period of time begins to run shall not be
included. The last day of the period so computed shall be included, unless it is
a Saturday, Sunday or a legal holiday, in which event the period runs until the
end of the next day which is not a Saturday, Sunday, or legal holiday. Unless
otherwise provided herein, all Notices and other periods expire as of 5:00 p.m.
(local time in New York, New York) on the last day of the Notice or other
period.
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(bb) No Merger. There shall be no merger of this Lease or
of the leasehold estate hereby created with the fee estate in the Premises or
any part thereof by reason of the fact that the same person, firm, corporation,
or other legal entity may acquire or hold, directly or indirectly, this Lease of
the leasehold estate and the fee estate in the Premises or any interest in such
fee estate, without the prior written consent of Landlord's mortgagee.
(cc) Time of the Essence. TIME IS OF THE ESSENCE IN ALL
PROVISIONS OF THIS LEASE, INCLUDING ALL NOTICE PROVISIONS TO BE PERFORMED BY OR
ON BEHALF OF TENANT.
Recordation of Lease. Tenant shall not record this Lease without the written
consent of Landlord, which consent shall not be unreasonably withheld.
(dd) Accord and Satisfaction. No payment by Tenant or
receipt by Landlord of a lesser amount than any payment of Fixed Rent or
Additional Rent herein stipulated shall be deemed to be other than on account of
the earliest stipulated Fixed Rent or Additional Rent due and payable hereunder,
nor shall any endorsement or statement or any check or any letter accompanying
any check or payment as Rent be deemed an accord and satisfaction. Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance of such Rent or pursue any other right or remedy provided for in
this Lease, at law or in equity.
(ee) No Partnership. Landlord does not, in any way or for
any purpose, become a partner of Tenant in the conduct of its business, or
otherwise, or joint venturer or a member of a joint enterprise with Tenant. This
Lease establishes a relationship solely of that of a landlord and tenant.
(ff) No Presumption Against Drafter. Landlord and Tenant
understand, agree, and acknowledge that: (i) this Lease has been freely
negotiated by both parties; and (ii) that, in the event of any controversy,
dispute, or contest over the meaning, interpretation, validity, or
enforceability of this Lease, or any of its terms or conditions, there shall be
no inference, presumption, or conclusion drawn whatsoever against either party
by virtue of that party having drafted this Lease or any portion thereof.
(gg) Force Majeure. If by reason of strikes or other labor
disputes, fire or other casualty (or reasonable delays in adjustment of
insurance), accidents, orders or regulations of any Federal, State, County or
Municipal authority, or any other cause beyond Landlord's reasonable control,
Landlord is unable to furnish or is delayed in furnishing any utility or service
required to be furnished by Landlord under the provisions of this Lease or is
unable to perform or make or is delayed in performing or making any
installations, decorations, repairs, alterations, additions or improvements, or
is unable to fulfill or is delayed in fulfilling any of Landlord's other
obligations under this Lease, no such inability or delay shall constitute an
actual or constructive eviction, in whole or in part, or entitle Tenant to any
abatement or diminution of Fixed Rent, or relieve Tenant from any of its
obligations under this Lease, or impose any liability upon Landlord or its
agents, by reason of inconvenience or annoyance to Tenant, or injury to or
interruption of Tenant's business, or otherwise.
37. Intentionally Deleted.
38. WAIVER OF TRIAL BY JURY.
LANDLORD AND TENANT WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER OF THIS LEASE. THIS
WAIVER IS KNOWINGLY, INTENTIONALLY, AND VOLUNTARILY MADE BY TENANT AND TENANT
ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON ACTING ON BEHALF OF LANDLORD
HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR
IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. TENANT FURTHER ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE
SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL. TENANT FURTHER ACKNOWLEDGES THAT IT HAS READ
AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER PROVISION AND AS
EVIDENCE OF SAME HAS EXECUTED THIS LEASE.
-26-
39. RIGHT OF FIRST OFFER.
Provided that (i) Tenant is not in default under this Lease on the date
of the availability of the Additional Space (hereinafter defined) and (ii) this
Lease is otherwise in full force and effect, Tenant shall have a right of first
offer to lease any space as it may become available for lease within the third
floor of the Building ("Additional Space"). If the Landlord has "Additional
Space" available, then Landlord shall send written notice to Tenant identifying
the Additional Space and setting its proposed financial terms for renting such
"Additional Space". Within Ten (10) business days after receipt of Landlord's
notice of availability of the "Additional Space", Tenant shall reply by written
notice either (i) accepting the "Additional Space" under the terms of this
Lease, as amended to reflect an adjustment to the Minimum Annual Rent and
Tenant's Proportionate Share of additional rent, ii) rejecting the offer to rent
the Additional Space on the offered terms, or (iii) offering to lease the
"additional Space" on terms and conditions as proposed in written proposal
submitted to the Landlord. If the Tenant does not (i) affirmatively accept the
Additional Space in writing within ten (10) business days of receipt of
Landlord's notice; or (ii) sign the lease amendment within twenty (20) days of
receipt of Landlord's notice, the Landlord shall be permitted to treat the
foregoing as rejection of the Additional Space. Notwithstanding the foregoing,
if Tenant fails to respond to any writing as detailed in this Paragraph 36
Tenant then acknowledges that it has been offered the Additional Space and
rejected it and Landlord shall not be required to offer it to Tenant again
unless Landlord leases the space to a tenant and it is subsequently vacated.
40. FOOD SERVICE.
Landlord hereby agrees that by the Commencement Date it shall have a
person in the Building serving cooked food available to the Tenant's employees
located within the Building. Said food service operation shall be open and
operating from the hours of 8am - 2pm Monday - Friday.
41. TELECOMMUNICATIONS WIRING AND EQUIPMENT.
Tenant shall have, at no additional cost, the right to operate
telecommunications equipment and bring fiber optic cabling (or other means) into
the Premises and Project and have required access to the roof, conduit(s),
risers and vertical shafts, based upon reasonable availability, provided that
the foregoing does not create a third party ownership rights or permanent
easements in the Premises. Notwithstanding, any contrary provisions contained in
this Lease or the Building Rules and Regulations attached as "Exhibit C", the
right to install and operate said equipment shall be deemed to convey to Tenant
and or its vendors temporary ingress and egress to the Premises, which right
shall not survive this Lease.
42. GENERATOR.
The tenant shall have the right at its sole cost and expense to place a
generator in the Premises or upon the Project grounds, subject to the consent of
the Landlord to the area of placement, which shall not be unreasonably withheld.
Said placement of the generator shall be further subject to any and all
governmental approvals and reasonable landlord rules that may be required.
43. CONSENT TO JURISDICTION.
TENANT HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE STATE
COURTS LOCATED IN MIDDLESEX COUNTY NEW JERSEY AND TO THE FEDERAL COURTS LOCATED
IN THE DISTRICT OF NEW JERSEY.
-27-
IN WITNESS WHEREOF, the parties hereto have executed this Lease the day
and year first above written.
LANDLORD:
BT Piscataway LLC
By Its General Partner
BT Piscataway Member LLC
By: s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
Manager
TENANT:
EasyLink Services Corporation
By: s/Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President Finance
-28-
EXHIBIT "A"
SPACE PLAN
-29-
EXHIBIT "B"
CONFIRMATION OF LEASE TERM
THIS MEMORANDUM is made as of the ___ day of _________, 2001, between
BT Piscataway, LLC, a New Jersey limited liability corporation, with an office
at 0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx xxxxxx, XX 00000 ("Landlord") and
_________________________, with its principal place of business at
______________________________ ______________________ ("Tenant"), who entered
into a lease dated for reference purposes as of ___________ __, 200_, covering
certain premises located at ________________________________________________.
All capitalized terms, if not defined herein, shall be defined as they are
defined in the Lease.
1. The Parties to this Memorandum hereby agree that the date of
______________, 200_ is the "Commencement Date" of the Term, that the date
___________, 200_ is the Rent Commencement Date and the date _________ is the
expiration date of the Lease.
2. Tenant hereby confirms the following:
(a) That it has accepted possession of the Premises
pursuant to the terms of the Lease;
(b) That the improvements, including the Landlord Work,
required to be furnished according to the Lease by Landlord have been
Substantially Completed;
(c) That Landlord has fulfilled all of its duties of an
inducement nature or are otherwise set forth in the Lease;
(d) That there are no offsets or credits against rentals,
and the $__________ Security Deposit has been paid as provided in the Lease;
(e) That there is no default by Landlord or Tenant under
the Lease and the Lease is in full force and effect.
3. This Memorandum, each and all of the provisions hereof, shall
inure to the benefit, or bind, as the case may require, the parties hereto, and
their respective successors and assigns, subject to the restrictions upon
assignment and subletting contained in the Lease.
WITNESS: LANDLORD:
, L.P.
-----------------------------
By: , its general
------------------
partner
By:
-------------------------------- --------------------------------
[SEAL]
WITNESS: TENANT:
By:
-------------------------------- --------------------------------
[SEAL]
-00-
XXXXXXX "X"
XXXXXXXX RULES AND REGULATIONS
LAST REVISION: JANUARY, 2001
Landlord reserves the right to rescind any of these rules and make such
other and further rules and regulations as in the judgment of Landlord shall
from time to time be needed for the safety, protection, care and cleanliness of
the Project, the operations thereof, the preservation of good order therein and
the protection and comfort of its tenants, their agents, employees and invitees,
which rules when made and notice thereof given to Tenant shall be binding upon
him in a like manner as if originally prescribed. Landlord will notify Tenant in
writing of any changes to the Building Rules and Regulations.
1. Sidewalks, entrances, passages, elevators, vestibules, stairways,
corridors, halls, lobby and any other part of the Building shall not be
obstructed or encumbered by any Tenant or used for any purpose other
than ingress or egress to and from each tenant's premises. Landlord
shall have the right to control and operate the common portions of the
Building and exterior facilities furnished for common use of the
tenants (such as the eating, smoking, and parking areas) in such a
manner as Landlord deems appropriate.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of Landlord. All
drapes, or window blinds, must be of a quality, type and design, color
and attached in a manner approved by Landlord.
3. No showcases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, or placed in hallways or
vestibules without prior written consent of Landlord.
4. Rest rooms and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed and no
debris, rubbish, rags or other substances shall be thrown therein. Only
standard toilet tissue may be flushed in commodes. All damage resulting
from any misuse of these fixtures shall be the responsibility of the
Tenant who, or whose employees, agents, visitors, clients, or licensees
shall have caused same.
5. No tenant, without the prior consent of Landlord, shall xxxx, paint,
drill into, bore, or cut or in any way deface any part of the Premises
or the Building of which they form a part except for the reasonable
hanging of decorative or instructional materials on the walls of the
Premises.
6. Tenants shall not construct or maintain, use or operate in any part of
the project any electrical device, wiring or other apparatus in
connection with a loud speaker system or other sound/communication
system which may be heard outside the Premises. Any such communication
system to be installed within the Premises shall require prior written
approval of Landlord.
7. No mopeds, skateboards, scooters or other vehicles and no animals,
birds or other pets of any kind shall be brought into or kept in or
about the Building.
8. No tenant shall cause or permit any unusual or objectionable odors to
be produced upon or permeate from its premises.
9. No space in the Building shall be used for the manufacture of goods for
sale in the ordinary course of business, or for sale at auction of
merchandise, goods or property of any kind.
10. No tenant, or employees of Tenant, shall make any unseemly or
disturbing noises or disturb or interfere with the occupants of this or
neighboring buildings or residences by voice, musical instrument,
radio, talking machines, whistling, singing, or in any way. All passage
through the Building's hallways, elevators, and main lobby shall be
conducted in a quiet, business-like manner. Rollerblading shall not be
permitted in the Building nor in the common areas of the Project.
11. No tenant shall throw anything out of the doors, windows, or down
corridors or stairs of the Building.
-31-
12. Tenant shall not place, install or operate on the Premises or in any
part of the Project, any engine, stove or machinery or conduct
mechanical operations or xxxx thereon or therein (except for coffee
machine, microwave oven, and/or vending machine), or place or use in or
about the Premises or Project any explosives, gasoline, kerosene oil,
acids, caustics or any other flammable, explosive, or hazardous
material without prior written consent of Landlord.
13. No smoking is permitted in the rest rooms, hallways, elevators, stairs,
lobby, exit and entrances vestibules, sidewalks, parking lot area
except for the designated exterior smoking area. All cigarette ashes
and butts are to be deposited in the containers provided for same, and
not disposed of on sidewalks, parking lot areas, or toilets within the
Building rest rooms.
14. Tenants are not to install any additional locks or bolts of any kind
upon any door or window of the Building without prior written consent
of Landlord. Each tenant must, upon the termination of tenancy, return
to the Landlord all keys for the Premises, either furnished to or
otherwise procured by such tenant, and all security access cards to the
Building.
15. All doors to hallways and corridors shall be kept closed during
business hours except as they may be used for ingress or egress.
16. Tenant shall not use the name of the Building, Landlord or Landlord's
Agent in any way in connection with his business except as the address
thereof. Landlord shall also have the right to prohibit any advertising
by Tenant, which, in its sole opinion, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon
written notice from Landlord, Tenant shall refrain from or discontinue
such advertising.
17. Tenants must be responsible for all Security Access cards issued to
them, and to secure the return of same from any employee terminating
employment with them. Lost cards shall cost $35.00 per card to replace.
No person/company other than Building Tenants and/or their employees
may have Security Access cards unless Landlord grants prior written
approval.
18. All deliveries by vendors, couriers, clients, employees or visitors to
the Building which involve the use of a hand cart, hand truck, or other
heavy equipment or device must be made via the Freight Elevator. Tenant
shall be responsible to Landlord for any loss or damage resulting from
any deliveries made by or for Tenant to the Building. Tenant shall
procure and deliver a certificate of insurance from Tenant's movers
which certificate shall name Landlord as an additional insured.
19. Landlord reserves the right to inspect all freight to be brought into
the Building, and to exclude from the Building all freight or other
material which violates any of these rules and regulations.
20. Tenant will refer all contractors, contractor's representatives and
installation technicians, rendering any service on or to the premises
for Tenant, to Landlord for Landlord's approval and supervision, which
approval or supervision shall not be unreasonably withheld, before
performance of any contractual service or access to Building. This
provision shall apply to all work performed in the Building including
installation of telephones, telegraph equipment, electrical devices and
attachments and installations of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment or any other physical
portion of the Building. Landlord reserves right to require that all
agents of contractors/vendors sign in and out of the Building.
21. Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to
Landlord's management or security personnel.
22. Landlord may require, at its sole option, all persons entering the
Building after 6 PM or before 7 AM, Monday through Friday and at any
time on Holidays, Saturdays and Sundays, to register at the time they
enter and at the time they leave the Building.
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23. No space within the Building, or in the common areas such as the
parking lot, may be used at any time for the purpose of lodging,
sleeping, or for any immoral or illegal purposes.
24. No employees or invitees of Tenant shall use the hallways, stairs,
lobby, or other common areas of the Building as lounging areas during
"breaks" or during lunch periods.
25. No canvassing, soliciting or peddling is permitted in the Building or
its common areas by tenants, their employees, or other persons.
26. No mats, trash, or other objects shall be placed in the public
corridors, hallways, stairs, or other common areas of the Building.
27. Tenant must place all recyclable items of cans, bottles, plastic and
office recyclable paper in appropriate containers provided by Landlord
in each tenant's space. Removal of these recyclable items will be by
Landlord's janitorial personnel.
28. Landlord does not maintain suite finishes which are non-standard, such
as kitchens, bathrooms, wallpaper, special lights, etc. However, should
the need arise for repair of items not maintained by Landlord, Landlord
at its sole option, may arrange for the work to be done at Tenant's
expense.
29. Drapes installed by Tenant, which are visible from the exterior of the
Building, must be cleaned by Tenant, at its own expense, at least once
a year.
30. No pictures, signage, advertising, decals, banners, etc. are permitted
to be placed in or on windows in such a manner as they are visible from
the exterior, without the prior written consent of Landlord.
31. Tenant or Tenant's employees are prohibited at any time from eating or
drinking in hallways, elevators, rest rooms, lobby or lobby vestibules.
32. Tenant shall be responsible to Landlord for any acts of vandalism
performed in the Building by its employees, agents, invitees or
visitors.
33. No tenant shall permit the visit to its Premises of persons in such
numbers or under such conditions as to interfere with the use and
enjoyment of the entrances, hallways, elevators, lobby or other public
portions or facilities of the Building and exterior common areas by
other tenants.
34. Landlord's employees shall not perform any work or do anything outside
of their regular duties unless under special instructions from
Landlord. Requests for such requirements must be submitted in writing
to Landlord.
35. Tenant agrees that neither Tenant nor its agents, employees, licensees
or invitees will interfere in any manner with the installation and/or
maintenance of the heating, air conditioning and ventilation facilities
and equipment.
36. Landlord will not be responsible for lost or stolen personal property,
equipment, money or jewelry from Tenant's area or common areas of the
Project regardless of whether such loss occurs when area is locked
against entry or not.
37. Landlord will not permit entrance to Tenant's Premises by use of pass
key controlled by Landlord, to any person at any time without written
permission of Tenant, except employees, contractors or service
personnel supervised or employed by Landlord.
38. Tenant and its agents, employees and invitees shall observe and comply
with the driving and parking signs and markers on the Building grounds
and surrounding areas.
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39. Tenant and its employees, invitees, agents, etc. shall not enter other
separate tenants' hallways, restrooms or premises unless they have
received prior approval from Landlord's management.
40. Tenant shall not use or permit the use of any portion of the Premises
for outdoor storage.
***********
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EXHIBIT "D"
CLEANING SCHEDULE
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I. Private and general office areas, lobby/reception areas,
entrances, stairs, elevators, etc.
DAILY CLEANING
1. Empty wastebaskets and trash receptacles.
Wash them, if necessary, and replace liners
as needed.
2. Empty ash trays. Wet-wipe and dry.
3. Dust desk tops and wipe them clean-WITHOUT
disturbing papers.
4. Dust telephones.
5. Dust all horizontal surfaces (up to 7 ft.)
including xxxxx, ledges, molding, shelves,
picture frames, ducts, radiators, tops of
petitions, chairs, furniture, etc.
6. Give special attention to entrance ways and
lobby areas, including door frames and
ledges.
7. Hand dust and wipe clean all furniture.
8. Spot clean doors, door handles, frames,
light switches, kick and push plates,
handles, and walls.
9. Clean and polish water fountains.
10. Vacuum elevators, polish bright work, and
clean tracks.
11. Straighten magazine tables.
WEEKLY CLEANING
1. Dust horizontal surfaces above 7 ft,
including shelves, moldings, ledges, light
fixtures, and ceiling vents.
2. Dust such vertical surfaces as sides of
desks, furniture, baseboards, etc.
3. Dust venetian blinds, mini blinds, levelers.
4. Remove cobwebs from ceilings and corners (up
to 10 ft.)
MONTHLY CLEANING
1. Stiff brush and vacuum all upholstered
furniture and place in an organized manner.
2. Dust wipe all diffusers and ceiling
ventilators.
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II. Washrooms/Bathrooms/Lavatories
DAILY CLEANING
1. Clean, sanitize, and polish all fixtures,
including toilet seats, bowls, urinals,
sinks and bright work.
2. Clean and polish mirrors.
3. Clean horizontal surfaces to include heating
vents, frames, counter tops, etc.
4. Empty and clean containers and sanitary
disposals. Insert liners as needed.
5. Clean walls, doors, partitions, and ceiling
vents.
6. Clean, check, and refill soap dispensers.
7. Remove all trash from floors
8. Sweep, damp mop, and sanitize floors.
9. Replenish towels, tissues, and sanitary
napkins, as needed. Clean dispensers.
10. Clean and polish all stainless steel.
11. Remove water stains from porcelain as needed
with a pumice bar.
III. Kitchen/Eating Areas/Vending Areas
DAILY CLEANING
1. Clean and sanitize all surfaces, including
counters, sinks and tables.
2. Empty and wash trash containers. Reline them
as necessary.
3. Spot clean doors, frames, light switches,
kick & push plates, handles, walls and
interior surfaces.
4. Sweep and damp mop floors.
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WEEKLY CLEANING
1. Dust all surfaces above 7 ft., including
picture frames, molding, door frames, etc.
MONTHLY CLEANING
1. Dust wipe all diffusers and ceiling
ventilators.
IV. Floors
DAILY CLEANING
1. Vacuum or mop traffic areas, lobby, steps,
landing, and stair xxxxx.
2. Sweep or vacuum entrance mats and spot clean
as necessary.
3. Dust and damp mop all hard floors, including
corners and under furniture.
4. Spot mop all hard floors for spillage as
necessary.
5. Vacuum carpeted floors entirely, including
edges and corners.
6. Spot clean spills on carpeted floors.
V. General Procedures
1. Cleaners will notify building management of
any obvious irregularities (i.e. defective
plumbing unlocked doors, etc.)
All utility closets will be straightened and locked prior to
leaving.
Cleaning personnel will wear uniforms and carry ID badges.
Turn off all lights except those designated to be left on.
Close all windows and lock doors, re-check them before leaving.
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Provide all cleaning supplies and equipment necessary for
performing the above duties.
Trash and recycling will be removed to designated areas.
Maintain a logbook at the suite for special requests or
problems.
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