ICon International Inc.
000 Xxxxxxxxx xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
November 15, 1995
Xx. Xxxxxx X. Xxxxxxxxx
Xxxxx-PW Tower B Limited Partnership
000 Xxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000-0000
Re: Lease Agreement between Xxxxx-PW Tower B Limited Partnership ("Landlord")
And ICon International Inc. ("Tenant")
Premises: 0000 Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx
Dear Xxxxx:
This will confirm that notwithstanding anything contained in Article 8 of the
Lease to the contrary, you will accept as complying with such Article 8 the
Security Deposit in the form of an irrevocable letter of credit which has a term
of at least one year expiring no earlier than on November 2, 1996, although it
does not automatically renew on an annual basis, provided that at least thirty
(30) days prior to November 2, 1996 and each anniversary thereof during the Term
we deliver to you a substitute irrevocable letter of credit with a term of at
least one year expiring no earlier than the next such anniversary or a term
which expires no earlier than thirty (30) days after the Expiration Date of the
Lease, whichever is sooner, in the amount provided in such Article 8 and
otherwise conforming to the requirements of such Article 8.
Sincerely,
ICon International Inc.
By: /s/ Xxxxx Xxxxxx
----------------------------------
Xxxxx Xxxxxx, President
Accepted and Agreed:
Xxxxx-PW Tower B Limited Partnership
By: Xxxxx Mountain Industries, Inc.
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
TABLE OF CONTENTS
ARTICLES PAGE
-------- ----
1 - DEFINITIONS.............................................1
2 - DEMISE AND TERM.........................................7
3 - RENT....................................................7
4 - USE OF DEMISED PREMISES ................................8
5 - PREPARATION OF DEMISED PREMISES.........................9
6 - TAX AND OPERATING EXPENSE PAYMENTS.....................10
7 - COMMON AREAS...........................................12
8 - SECURITY...............................................13
9 - SUBORDINATION..........................................15
10 - QUIET ENJOYMENT........................................18
11 - ASSIGNMENT, SUBLETTING AND MORTGAGING..................18
12 - COMPLIANCE WITH LAWS...................................21
13 - INSURANCE AND INDEMNITY................................23
14 - RULES AND REGULATIONS..................................26
15 - ALTERATIONS............................................26
16 - LANDLORD'S AND TENANT'S PROPERTY.......................27
17 - REPAIRS AND MAINTENANCE................................28
18 - ELECTRIC ENERGY........................................29
19 - HEAT, VENTILATION AND AIR-CONDITIONING.................30
20 - OTHER SERVICES; SERVICE INTERRUPTION...................31
21 - ACCESS, CHANGES AND NAME...............................32
22 - MECHANICS' LIENS AND OTHER LIENS.......................33
23 - NON-LIABILITY .........................................33
24 - DAMAGE OR DESTRUCTION..................................34
25 - EMINENT DOMAIN.........................................36
ARTICLES PAGE
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26 - SURRENDER..............................................38
27 - CONDITIONS OF LIMITATION...............................38
28 - RE-ENTRY BY LANDLORD...................................39
29 - DAMAGES................................................40
30 - AFFIRMATIVE WAIVERS....................................43
31 - NO WAIVERS.............................................43
32 - CURING A PARTY'S DEFAULTS..............................43
33 - BROKER.................................................44
34 - NOTICES................................................44
35 - ESTOPPEL CERTIFICATES..................................45
36 - ARBITRATION............................................45
37 - MEMORANDUM OF LEASE....................................46
38 - RELOCATION OF DEMISED PREMISES.........................46
39 - MISCELLANEOUS..........................................46
EXHIBITS
EXHIBIT A - DEMISED PREMISES
EXHIBIT A1 - DEVELOPMENT
EXHIBIT B - DESCRIPTION OF LAND
EXHIBIT C - WORKLETTER
EXHIBIT D - RULES AND REGULATIONS
EXHIBIT E - CLEANING SPECIFICATIONS
EXHIBIT X - PSE&G LETTER
LEASE, dated November 3, 1995, by and between XXXXX-PW TOWER B LIMITED
PARTNERSHIP, a New Jersey Limited Partnership having an office at 000 Xxxxx
Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000-0000 ("Landlord"), and ICON INTERNATIONAL
INC., a Delaware corporation having an office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Tenant").
ARTICLE 1 - DEFINITIONS
1.01. As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Advance Rent: $48,400.67
B. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
C. Architect: Xxxxxxx Xxxx Xxxxx, or as Landlord may designate.
D. Base Year: The calendar year 1996.
E. Broker: Pyramid Real Estate & Management Co.
F. Building: The building or buildings now or hereafter located on the
Land (excluding any portion of the Retail Mall on the Land) and known or to
be known as 0000 Xxxxxx Xxxxxxxxx xx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx.
G. Building Fraction: a fraction the numerator of which is the Floor
Space of the Building (approximately 367,825 square feet) and the denominator
of which is the aggregate Floor Space of the buildings in the Development.
If the aggregate Floor Space of the buildings in the Development
shall be changed due to any construction or alteration, the denominator of the
Building Fraction shall be increased or decreased to reflect such change.
H. Business Days: All days except Saturdays, Sundays, days observed
by the federal or state government as legal holidays and such other holidays
as shall be designated as holidays by the applicable building service union
employees' service contract or by the applicable operating engineers'
contract.
I. Business Hours: Generally customary daytime business hours, but not
before 9:00 A.M. or after 6:00 P.M.
J. Calendar Year: Any twelve-month period commencing on a January 1.
K. Commencement Date: The earlier of (a) the date on which both: (i)
the Demised Premises shall be Ready for Occupancy, and (ii) actual possession
of the Demised Premises shall have been delivered to Tenant by notice to
Tenant, or (b) the date Tenant, or anyone claiming under or through Tenant,
first occupies the Demised Premises for normal business operations.
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L. Common Areas: All areas, spaces and improvements in the Building and
on the Land which Landlord makes available from time to time for the common use
and benefit of the tenants and occupants of the Building and which are not
exclusively available for use by a single tenant or occupant, including, without
limitation, parking areas, roads, walkways, sidewalks, landscaped and planted
areas, community rooms, if any, the managing agent's office, if any, and public
rest rooms, if any.
M. Demised Premises: The space that is or will be located on the
eighth (8th) floor of the Building and that is indicated on the floor plan
attached hereto as Exhibit A. The Demised Premises contains or will contain
approximately 31,600 square feet of Floor Space subject to adjustment upon
verification by the Architect.
N. Development: All lands and improvements now existing or
hereafter constructed located in the area outlined on Exhibit A-1.
O. Development Common Areas: All areas in the Development excluding
Common Areas that are not exclusively available for use by a single tenant
including, but not limited to: walkways, landscaped areas, open spaces, roads,
ramps, buildings and riverbank bulkheads.
P. Expiration Date: The date that is the day before the tenth (10th)
anniversary of the Commencement Date if the Commencement Date is the first day
of a month, or the tenth (10th) anniversary of the last day of the month in
which the Commencement Date occurs if the Commencement Date is not the first day
of a month. However, if the Term is extended by Tenant's effective exercise of
Tenant's right, if any, to extend the Term, the "Expiration Date" shall be
changed to the last day of the last extended period as to which Tenant shall
have effectively exercised its right to extend the Term. For the purposes of
this definition, the earlier termination of this Lease shall not affect the
"Expiration Date."
Q. Fixed Rent: An amount at the annual rate of Eighteen and 34/100
Dollars ($18.34) multiplied by the Floor Space of the Demised Premises for years
one (1) through five (5) of the Lease Term and an amount at the annual rate of
Twenty and 00/100 Dollars ($20.00) multiplied by the Floor Space of the Demised
Premises for years six (6) through ten (10) of the Lease Term.
R. Floor Space: As to the Demised Premises, the sum of the floor area
stated in square feet bounded by the exterior faces of the exterior walls, or by
the exterior or Common Area face of any wall between the Demised Premises and
any portion of the Common Areas, or by the center line of any wall between the
Demised Premises and space leased or available to be leased to a tenant or
occupant plus eighteen percent (18%). Any reference to Floor Space of a building
shall mean the floor area of all levels or stories of such building, excluding
any roof, except such portion thereof (other than cooling towers, elevator
penthouses, mechanical rooms, chimneys and staircases, entrances and exits) as
is permanently enclosed, and including any interior basement level or mezzanine
area not occupied or used by a tenant on a continuing or repetitive basis, and
any mechanical room, enclosed or interior truck dock, interior Common Areas, and
areas used by Landlord for storage, for housing
2
meters and/or other equipment or for other purposes. Any reference to the Floor
Space is intended to refer to the Floor Space of the entire area in question
irrespective of the Person(s) who may be the owner(s) of all or any part
thereof.
S. Guarantor: None.
T. INTENTIONALLY DELETED.
U. Land: The Land upon which the Building and Common Areas are
located. The Land is described on Exhibit B.
V. Landlord's Work: The materials and work to be furnished, installed
and performed by Landlord at its expense in accordance with the provisions of
Exhibit C.
W. Legal Requirements: Laws and ordinances of all federal, state, city,
town, county, borough and village governments, and rules, regulations, orders
and directives of all departments, subdivisions, bureaus, agencies or offices
thereof, and of any other governmental, public or quasi-public authorities
having jurisdiction over the Land and Building, whether now or hereafter in
force, including, but not limited to, those pertaining to environmental matters.
X. Mortgage: A mortgage and/or a deed of trust.
Y. Mortgagee: A holder of a mortgage or a beneficiary of a deed of
trust.
Z. Operating Expenses: The sum of the following: (1) the cost and
expense (whether or not within the contemplation of the parties) for the repair,
replacement, maintenance, policing, insurance and operation of the Building and
Land, and (2) the Building Fraction of the sum of (a) the cost and expense for
the repair, replacement, maintenance, policing, insurance and operation of the
Development Common Areas; (b) the Real Estate Taxes, if any, attributable to the
Development Common Areas; and (3) the Parking Charges attributable to the
Building as defined in 1.01 (AA) and (4) fifty percent (50%) of the cost and
expense for repair, replacement, maintenance, policing insurance and operation
of the lobbies that service the Building and the Retail Mall in common. The
"Operating Expenses" shall, include, without limitation, the following: (i) the
cost for rent, casualty, liability, boiler and fidelity insurance, (ii) if an
independent managing agent is employed by Landlord, the fees payable to such
agent (provided the same are competitive with the fees payable to independent
managing agents of comparable facilities in Xxxxxx County), and (iii) reasonable
legal, accounting and other professional fees. In all years including the Base
Year, if Landlord is itself managing the Building and has not employed a
independent third party for such management, Landlord shall be entitled to 25%
of the resulting total of all of the foregoing items making up "Operating
Expenses" for Landlord's home office administration and overhead cost and
expense. All items included in Operating Expenses shall be determined in
accordance with generally accepted accounting principles consistently applied.
In no event shall
3
Landlord's home office administration and overhead costs and expenses exceed the
normal customary industry third party management fees.
"Operating Expenses" shall not include the following:
(i) Costs for which Landlord is reimbursed by its insurer, any tenant's
insurer or any tenant (other than through operating expense provisions);
(ii) Interest, principal or other payments on mortgages or other debt
costs, if any;
(iii) Rent concessions or expenditures for any alteration, renovation,
redecoration or finish of any other tenant space in the Building whether
performed in connection with the occupancy of such space by a new tenant or in
connection with a renewal of a lease for such space by the existing tenant
thereof or the relocation of a tenant or otherwise;
(iv) Leasing commissions, marketing and advertising costs related to
leasing space in the Building;
(v) Rent under any ground lease;
(vi) interest, late charges and late penalties on any charges payable by
Landlord which are included in Operating Expenses, except as the result of a
default by Tenant;
(vii) Legal, accounting and other professional fees and disbursements
incurred in connection with any negotiation of, or disputes arising out of, any
lease in the Building, with respect to new leases, enforcing Landlord's rights
under existing leases, financing, refinancing, litigation with tenants or
third-parties (all exclusive, however, of any legal, accounting or other
professional fees and disbursements incurred in connection with an appeal of
Real Estate Taxes);
(viii) services provided for the exclusive use of another tenant in the
Building;
(ix) capital improvements, except as follows: in the event any of the
items which would constitute Operating Expenses are classified as capital
improvements pursuant to generally accepted accounting principles, the monthly
amount included in Operating Expenses during the Term with respect thereto will
be limited to the monthly amount necessary to amortize the cost of such item,
with interest thereon (at the floating Prime Rate of Chemical Bank [or its
successor in interest] plus 1%), over the useful life of such item, in
accordance with generally accepted accounting principles consistently applied.
AA. Parking Charges: The Building's pro-rata share of the cost and
expense for the repair, replacement, striping, lighting maintenance, policing,
insurance, Real Estate Taxes, utilities, and landscaping of the parking
facility or facilities serving to the Building. The Building's pro-rata share
shall be a fraction the numerator of which is the Floor Space of the Building
and the denominator of which is the Floor Space of the Building and any other
4
building or buildings that use such parking facility in common with the
Building.
BB. Permitted Uses: General offices, including offices for executive,
administrative, marketing, sales, accounting, credit departments and any other
lawful use consistent with that of a first class office building; such use may
include, in addition to Tenant's primary use of the Demised Premises for general
offices as above described, the utilization by Tenant of those portions of the
Demised Premises identified on Exhibit A as "Lab", Shipping and Receiving" and
"Computer Room", for purposes of shipping and receiving, and the installation,
storage, maintenance, and operation of computers, printers, scanners, routers,
telecommunications equipment and machines, photocopying and facsimile equipment
and machines, and other office mechanical, electronic, optical and other
equipment; Landlord shall not unreasonably withhold or delay its consent to the
utilization by Tenant of up to an additional five (5%) percent of the Demised
Premises for such uses. It is understood and agreed that Tenant may employ use,
maintain and operate desk top computers, printers, scanners, routers,
telecommunications equipment and machines, photocopying and facsimile equipment
and machines, and other office mechanical, electronic, optical and other
equipment as part of its general office use. For the purposes hereof "first
class office building" shall mean: In keeping with the present operation and
management of the Building and in keeping with the character and tenants of the
Building. Under no circumstances shall Tenant be permitted to use or store,
except in de minimis amounts consistent with general office use, any flammables,
explosives, radioactive materials, polychlorinated biphenyls (PCBs), hazardous
wastes, toxic substances or related materials, petroleum and petroleum products,
and substances declared to be hazardous or toxic under any Legal Requirements
now or hereafter enacted or promulgated by any governmental authority. Any and
all Permitted Uses hereunder shall be conducted by Tenant in a manner complying
with all applicable Legal Requirements.
CC. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
DD. Ready for Occupancy: The condition of the Demised Premises when for
the first time the Landlord's Work shall have been completed other than for
minor or insubstantial details of construction, mechanical adjustment or
decoration, the noncompletion of which does not materially interfere with
Tenant's use of the Demised Premises, and Landlord has obtained a temporary,
permanent, or continuing Certificate of Occupancy permitting use of the Demised
Premises for the Permitted Uses.
EE. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Building and Land by any federal, state, municipal
or other governments or governmental bodies or authorities, and any expenses
incurred by Landlord in contesting such taxes or assessments and/or the assessed
value of the Building and Land, which expenses shall be allocated to the period
of time to which such expenses relate. If at any time during the Term the
methods of taxation prevailing on the date hereof shall be altered so that in
lieu of, or as an addition to or as a substitute for, the whole or any part of
such real estate taxes, assessments and special
5
assessments now imposed on real estate there shall be levied, assessed or
imposed (a) a tax, assessment, levy, imposition, license fee or charge wholly or
partially as a capital levy or otherwise on the rents received therefrom, or (b)
any other such additional or substitute tax, assessment, levy, imposition or
charge, then all such taxes, assessments, levies, impositions, fees or charges
or the part thereof so measured or based shall be deemed to be included within
the term "Real Estate Taxes" for the purposes hereof. The term "Real Estate
Taxes" shall not include: (i) interest and penalties for late payment, unless
Tenant shall fail to make timely payment of its taxes; (ii) gross receipts,
excess profits, income, payroll, and stamp taxes; (iii) inheritance, gift,
estate, succession, sales, transfer, corporate, franchise, excise, capital
levies, capital stock and personal property taxes; and (iv) any assessment for
improvements levied against other tenants of the Building to the extent the same
are designated by the taxing authority.
FF. Rent: The Fixed Rent and the Additional Charges.
GG. Retail Mall: The grade level areas, spaces and improvements now
or hereafter used or constructed for retail shops, services and restaurants.
HH. Rules and Regulations: The reasonable rules and regulations that
may be promulgated by Landlord from time to time, which may be reasonably
changed by Landlord from time to time. The Rules and Regulations now in
effect are attached hereto as Exhibit D.
II. Security Deposit: $500,000.00 Letter of Credit, subject to
reduction as more particularly set forth in Article 8 below.
JJ. INTENTIONALLY DELETED.
KK. Successor Landlord: As defined in Section 9.03.
LL. Superior Lease: Any lease to which this Lease is, at the time
referred to, subject and subordinate.
MM. Superior Lessor: The lessor of a Superior Lease or its successor
in interest, at the time referred to.
NN. Superior Mortgage: Any Mortgage to which this Lease is, at the time
referred to, subject and subordinate.
OO. Superior Mortgagee: The Mortgagee of a Superior Mortgage at the
time referred to.
PP. Tenant's Fraction: 8.6%. If the size of the Demised Premises or
the Building shall be changed from the initial size thereof, due to any
taking, any construction or alteration work or otherwise, the Tenant's
Fraction shall be changed to the fraction the numerator of which shall be the
Floor Space of the Demised Premises and the denominator of which shall be the
Floor Space of the Building.
QQ. Tenant's Property: As defined in Section 16.02.
6
RR. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work)
to equip, decorate and furnish the Demised Premises for Tenant's occupancy in
accordance with the provisions of Exhibit C.
SS. Term: The period commencing on the Commencement Date and ending
at 11:59 p.m. of the Expiration Date, but in any event the Term shall end on
the date, if any when this Lease is earlier terminated.
TT. Unavoidable Delays: A delay arising from or as a result of a strike,
lockout, or labor difficulty, explosion, sabotage, accident, riot or civil
commotion, act of war, fire or other catastrophe, Legal Requirement or an act of
the other party and any cause beyond the reasonable control of that party,
provided that the party asserting such Unavoidable Delay has exercised its best
efforts to minimize such delay.
ARTICLE 2 - DEMISE AND TERM
2.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. Promptly following the
Commencement Date, the parties hereto shall enter into an agreement in form and
substance satisfactory to Landlord and Tenant setting forth the Commencement
Date.
ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month during the Term
(except that Tenant shall pay, upon the execution and delivery of this Lease by
Tenant, the Advance Rent, to be applied against the first installment or
installments of Fixed Rent becoming due under this Lease). If the Commencement
Date occurs on a day other than the first day of a calendar month, the Fixed
Rent for the partial calendar month at the commencement of the Term shall be
prorated.
3.02. The Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
without notice or demand therefor and without any abatement, deduction or setoff
for any reason whatsoever, except as may be expressly provided in this Lease. If
Tenant makes any payment to Landlord by check, same shall be by check of Tenant
and Landlord shall not be required to accept the check of any other Person, and
any check received by Landlord shall be deemed received subject to collection.
If any check is mailed by Tenant, Tenant shall post such check in sufficient
time prior to the date when payment is due so that such check will be received
by Landlord on or before the date when payment is due. Tenant shall assume the
risk of lateness or failure of delivery of the mails, and no lateness or failure
of the mails will excuse Tenant from its obligation to have made the payment in
question when required under this Lease.
7
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment of Rent, Tenant waives Tenant's
right, if any, to designate the items to which any payments made by Tenant are
to be credited, and Landlord may apply any payments made by Tenant to such items
as Landlord sees fit, irrespective of and notwithstanding any designation or
request by Tenant as to the items to which any such payments shall be credited.
3.05. In the event that any installment of Rent due hereunder shall be
overdue for five (5) Business Days or more on more than one occasion in any
Calendar Year, a "Late Charge" equal to four percent (4%) or the maximum rate
permitted by law, whichever is less ("Late Payment Rate") for Rent so overdue
may be charged by Landlord for each month or part thereof that the same remains
overdue (so that, for example, in the case of a payment of Fixed Rent which has
not been paid within the applicable grace period), the Late Charge shall
commence to accrue retroactive to the first day of the month to which such
payment relates). Any such Late Charges if not previously paid shall, at the
option of the Landlord, be added to and become part of the next succeeding Rent
payment to be made hereunder.
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises for the Permitted
Uses, and Tenant shall not use or permit or suffer the use of the Demised
Premises or any part thereof for any other purpose.
4.02. If any governmental license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises or any part thereof, Tenant shall duly procure
and thereafter maintain such license or permit and submit the same to Landlord
for inspection. Landlord shall secure a Certificate of Occupancy for the Demised
Premises pursuant to which the Demised Premises may be used and occupied for the
Permitted Uses. Tenant shall at all times comply with the terms and conditions
of each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Demised Premises, or do or permit
anything to be done in the Demised Premises, in any manner which (a) violates
the Certificate of Occupancy for the Demised Premises or for the Building; (b)
causes or is liable to cause injury to the Building or any equipment, facilities
or systems therein; (c) constitutes a violation of the Legal Requirements; (d)
impairs the appearance of the Building as a first-class office building; (e)
adversely impairs the proper and economic maintenance, operation and repair of
the Building and/or its equipment, facilities or systems; or (f) unreasonably
interferes with other tenants or occupants of the Building.
8
ARTICLE 5 - PREPARATION OF DEMISED PREMISES
5.01.(a) Upon satisfaction of the contingencies set forth in Section
9.01 below, Landlord shall with reasonable diligence commence and prosecute to
completion the preparation of the Demised Premises for Tenant's occupancy in the
manner described in, and subject to the provisions of, Exhibit C. Tenant shall
occupy the Demised Premises promptly after the same are Ready for Occupancy and
possession thereof is delivered to Tenant by Landlord giving to Tenant a notice
of such effect.
(b) Tenant shall, within ten (10) days of the date hereof, provide
Landlord with all information Landlord needs to prepare working drawings for the
construction of Landlord's Work. Such information shall include, but not be
limited to layout of the Demised Premises, electrical, mechanical, plumbing &
structural requirements, materials & finishes. Within fifteen (15) days of
Landlord's receipt of all necessary information, Landlord shall deliver working
drawings to Tenant. Tenant shall, within five (5) days of its receipt of working
drawings, review and approve the working drawings by giving Landlord written
notice thereof. If Tenant does not respond within said five (5) day period, the
working drawings shall be deemed approved. If Tenant disapproves of the working
drawings, it shall specify in detail the reasons for its disapproval. If Tenant
makes changes in the working drawings which causes any delay, then the
provisions of Section 5.02 shall apply. Within ten (10) days after the working
drawings are approved or deemed approved, Landlord shall submit to Tenant prices
for the construction of any items in excess of Landlords' Work. Tenant shall,
within five (5) days of its receipt of prices, review and approve the prices by
giving Landlord written notice thereof. If Tenant does not respond within said
five (5) day period, the prices shall be deemed approved. If Tenant disapproves
of any prices, the provisions of Section 5.02 shall apply. In responding to any
Tenant requests for change orders Landlord shall advise Tenant of the additional
cost (or savings) and delay in completion (or savings of time) anticipated as a
result of such change order.
5.02. If the substantial completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors (including, without limitation, [i] any delays due to changes in
or additions to the Landlord's Work, or [ii] any delays by Tenant in the
submission of plans, drawings, specifications or other information or in
approving any working drawings or estimates or in giving any authorizations or
approvals), or (b) any additional time needed for the completion of the
Landlord's Work by the inclusion in the Landlord's Work of any items specified
by Tenant that require long lead time for delivery or installation, then the
Demised Premises shall be deemed Ready for Occupancy on the date when they would
have been ready but for such delay(s). Tenant shall take occupancy of the
Demised Premises once the same shall be Ready for Occupancy, notwithstanding
that there may be minor or insubstantial "punchlist" items in need of repair or
correction. Not later than thirty (30) days from the Commencement Date, Tenant
shall have the right to submit to Landlord a "punchlist" noting any incomplete
or incorrect Landlord's Work in detail sufficient for Landlord to act thereon.
Landlord shall use its reasonable efforts to promptly perform and complete such
punchlist items and to minimize
9
any inconvenience, annoyance, interruption or injury to Tenant's use and
occupancy; provided, however, that the foregoing reasonable efforts shall not,
in any event, require Landlord to perform or cause work to be performed other
than on Business Days during Business Hours.
5.03. Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, elevation, nature
and use of any of the Common Areas and the Building (other than the Demised
Premises) and any other buildings and other improvements on the Land, including,
without limitation, the right to move and/or remove same, provided same shall be
done in such a manner so as to minimize the interference with Tenant's use of
the Demised Premises as contemplated by this Lease and not unreasonably
interfere with Tenant's means of ingress or egress to and from the Demised
Premises.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. Tenant shall pay to Landlord, as hereinafter provided, Tenant's
Fraction of the Real Estate Taxes. Tenant's Fraction of the Real Estate Taxes
shall be the Real Estate Taxes in respect of the Building for the period in
question, less the Real Estate Taxes attributable to the Base Year, multiplied
by the Tenant's Fraction, plus the Real Estate Taxes in respect of the Land for
the period in question, less the Real Estate Taxes attributable to the Base
Year, multiplied by the Tenant's Fraction. In the event any part of the Retail
Mall is located on the Land, there shall be deducted from Real Estate Taxes the
proportionate share of Real Estate Taxes attributable to the Retail Mall based
upon the Floor Space of the portion of the Retail Mall located on the Land. If
any portion of the Building shall be exempt from all or any part of the Real
Estate Taxes, then for the period of time when such exemption is in effect, the
Floor Space on such exempt portion shall be excluded when making the above
computations in respect of the part of the Real Estate Taxes for which such
portion shall be exempt. Landlord shall in good faith estimate the annual amount
of Tenant's Fraction of the Real Estate Taxes (which estimate may be changed by
Landlord in good faith at any time and from time to time), and Tenant shall pay
to Landlord 1/12th of the amount so estimated on the first day of each month in
advance. Tenant shall also pay to Landlord within fifteen (15) days after
invoice or notice, from time to time, the amount which, together with said
monthly installments, will be sufficient in Landlord's good faith estimation to
pay Tenant's Fraction of any Real Estate Taxes thirty (30) days prior to the
date when such Real Estate Taxes shall first become due. When the amount of any
item comprising Real Estate Taxes is finally determined, including, without
limitation, after the end of the Term, for a real estate fiscal tax year,
Landlord shall submit to Tenant a statement in reasonable detail of the same,
and the figures usedfor computing Tenant's Fraction of the same, and if Tenant's
Fraction so stated is more or less than the amount theretofore paid by Tenant
for such item based on Landlord's estimate, Tenant shall pay to Landlord the
deficiency within fifteen (15) days after submission of such statement, or
Landlord, at its election, shall either within such fifteen (15) day period
refund to Tenant the excess, if any, or apply the same to the next installment
of Real Estate Taxes due hereunder. Any Real Estate Taxes for a real estate
fiscal tax year,
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a part of which is included within the Term and a part of which is not so
included, shall be apportioned on the basis of the number of days in the real
estate fiscal tax year included in the Term, and the real estate fiscal tax year
for any improvement assessment will be deemed to be the one-year period
commencing on the date when such assessment is due, except that if any
improvement assessment is payable in installments, the real estate fiscal tax
year for each installment will be deemed to be the one-year period commencing on
the date when such installment is due. The above computations shall be made by
Landlord in accordance with generally accepted accounting principles
consistently applied, and the Floor Space referred to will be based upon the
average of the Floor Space in existence on the first day of each month during
the period in question. In addition to the foregoing, Tenant shall be
responsible for any increase in Real Estate Taxes attributable to assessments
for improvements installed by or for the account of Tenant in the Demised
Premises. If the Demised Premises are not separately assessed, the amount of any
such increase shall be determined by reference to the records of the tax
assessor.
6.02. Tenant shall pay to Landlord, as hereinafter provided, Tenant's
Fraction of the Operating Expenses. Tenant's Fraction of the Operating Expenses
shall be the Operating Expenses for the period in question, less the Operating
Expenses for the Base Year, multiplied by Tenant's Fraction. Landlord shall in
good faith estimate Tenant's annual Fraction of the Operating Expenses (which
estimate may be reasonably changed by Landlord in good faith from time to time),
and Tenant shall pay to Landlord 1/12th of the amount so estimated on the first
day of each month in advance. If at any time Landlord changes its estimate of
Tenant's Fraction of the Operating Expenses for the then current Calendar Year
or partial Calendar Year, Landlord shall give notice to Tenant of such change
and within fifteen (15) days after such notice Landlord and Tenant shall adjust
for any overpayment or underpayment during the prior months of the then current
Calendar Year or partial Calendar Year. After the end of each Calendar Year,
including any partial Calendar Year at the beginning of the Term, and after the
end of the Term, Landlord shall submit to Tenant a statement in reasonable
detail stating Tenant's Fraction of the Operating Expenses for such Calendar
Year, or partial Calendar Year in the event the Term shall begin on a date other
than a January 1st and/or end on a date other than a December 31st, as the case
may be, and stating the Operating Expenses for the period in question and the
figures used for computing Tenant's Fraction of Operating Expenses, and if
Tenant's Fraction of Operating Expenses so stated for such period is more or
less than the amount paid for such period, Tenant shall pay to Landlord the
deficiency within fifteen (15) days after submission of such statement of
Tenant's Fraction, or Landlord, at its election, either shall within such
fifteen (15) day period refund to Tenant the excess, if any, or apply same to
the next installment(s) of Operating Expenses coming due hereunder. All
computations shall be madein accordance with generally accepted accounting
principles consistently applied.
6.03. Each such annual statement given by Landlord pursuant to Section
6.01 or Section 6.02 shall be conclusive and binding upon Tenant unless within
ninety (90) days after the receipt of such statement Tenant shall notify
Landlord that it disputes the correctness of the statement, specifying the
11
particular respects in which the statement is claimed to be incorrect. If such
dispute is not settled by agreement, either party may submit the dispute to
arbitration as provided in Article 36. Pending the determination of such dispute
by agreement or arbitration as aforesaid, Tenant shall, within fifteen (15) days
after receipt of such statement, pay the Additional Charges in accordance with
Landlord's statement, without prejudice to Tenant's position. If the dispute
shall be determined in Tenant's favor, Landlord shall forthwith pay to Tenant
the amount of Tenant's overpayment resulting from compliance with Landlord's
statement.
6.04. Provided Tenant is not in default beyond any applicable cure
period under this Lease, Tenant shall have the right, at its sole cost and
expense, upon at least thirty (30) days' prior written notice to Landlord, to
examine Landlord's records relating to Operating Expenses of the Demised
Premises and Real Estate Taxes for no more than five (5) days per Calendar Year.
Landlord shall make records available for examination at Landlord's principal
office during Landlord's normal business days and normal business hours. If any
such review discloses that Operating Expenses or Real Estate Taxes were
overstated by Landlord, Landlord, at its election, either shall within fifteen
(15) days refund or credit to Tenant any such excess or apply same to the next
installment(s) of Operating Expenses or Real Estate Taxes coming due hereunder,
together with an interest equivalent thereon from the applicable date(s) of such
overpayment at the floating prime rate of Chemical Bank, New York (or successor
thereto). In addition, in the event that any such review discloses that
Operating Expenses or Real Estate Taxes were overstated by Landlord by more than
five (5%) percent, Landlord shall pay to Tenant within fifteen days after demand
therefor, Tenant's reasonable accountants' fees in connection with the review of
Landlord's records under this Section 6.04. This provision shall not be deemed
to give Tenant the right to offset or deduct or withhold payment of Rent. No
subtenant shall have the right to conduct an examination and no assignee shall
conduct an inspection for any period during which such assignee was not in
possession of the Demised Premises. In the event Tenant elects to exercise an
inspection of Landlord's records relating to Operating Expenses or Real Estate
Taxes of the Demised Premises in accordance with this Section 6.04, such
inspection must be conducted by an independent nationally recognized accounting
firm that is not being compensated by Tenant on a contingency fee basis.
ARTICLE 7 - COMMON AREAS
7.01. Subject to the provisions of Section 5.03, Landlord will operate,
manage, equip, light, repair and maintain, or cause to be operated, managed,
equipped, lighted, repaired and maintained, the Common Areas for their intended
purposes. Landlord reserves the right, at any time and from time to time, to
construct within the Common Areas kiosks, fountains, aquariums, planters, pools
and sculptures, and to install vending machines, telephone booths, benches and
the like, provided same shall not unreasonably block or interfere with Tenant's
means of ingress or egress to and from the Demised Premises and shall be
constructed and/or installed in such a manner as to minimize interference with
Tenant's use of the Demised Premises as contemplated by this Lease.
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7.02. Tenant and its subtenants and concessionaires, and their
respective officers, employees, agents, customers and invitees, shall have the
non-exclusive right, in common with Landlord and all others to whom Landlord has
granted or may hereafter grant such right, but subject to the Rules and
Regulations, to use the Common Areas. Landlord reserves the right, at any time
and from time to time, to close temporarily all or any portions of the Common
Areas when in Landlord's reasonable judgment any such closing is necessary or
desirable (a) to make repairs or changes or to effect construction, (b) to
prevent the acquisition of public rights in such areas, (c) to discourage
unauthorized parking, or (d) to protect or preserve natural persons or property.
Landlord may do such other acts in and to the Common Areas as in its judgment
may be desirable to improve or maintain same. Landlord shall use reasonable
efforts to minimize interference with Tenant's use of the Demised Premises or
means of ingress or egress to and from the Demised Premises. Furthermore,
Landlord shall use reasonable efforts to promptly pursue and complete such
improvements and maintenance; provided, however, that the foregoing reasonable
efforts shall not, in any event, require Landlord to perform or cause work to be
performed other than on Business Days during Business Hours.
7.03. Except as otherwise provided for in Rider R4, Tenant agrees that
it, any subtenant or licensee and their respective officers, employees,
contractors and agents will park their automobiles and other vehicles only where
and as permitted by Landlord. Tenant will, if and when so requested by Landlord,
furnish Landlord with the license numbers of any vehicles of Tenant, any
subtenant or licensee and their respective officers, employees and agents.
ARTICLE 8 - SECURITY
8.01. (a) Tenant has deposited with Landlord the Security Deposit as
security for the full and faithful payment and performance by Tenant of Tenant's
obligations under this Lease. If Tenant defaults in the full and prompt payment
and performance of any of its obligations under this Lease beyond any applicable
cure period, including, without limitation, the payment of Rent, Landlord may
use, apply or retain the whole or any part of the Security Deposit to the extent
required for the payment of any Rent or any other sums as to which Tenant is in
default beyond any applicable cure period or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default beyond any
applicable cure period in respect of any of Tenant's obligations under this
Lease, including, without limitation, any damages or deficiency in the reletting
of the Demised Premises, whether such damages or deficiency accrue before or
after summary proceedings or other re-entry by Landlord. If Landlord shall so
use, apply or retain the whole or any part of the security, Tenant shall upon
demand immediately deposit with Landlord a sum equal to the amount so used,
applied and retained, as security as aforesaid. If Tenant shall fully and
faithfully pay and perform all of Tenant's obligations under this Lease, the
Security Deposit or any balance thereof to which Tenant is entitled shall be
returned or paid over to Tenant after the date on which this Lease shall expire
or sooner end or terminate, and after delivery to Landlord of entire possession
of the Demised Premises. In the event of any sale or leasing of the Land and the
Building, Landlord shall have the right to transfer the security to which Tenant
is entitled to
13
the vendee or lessee and Landlord shall thereupon be released by Tenant from all
liability for the return or payment thereof upon the acknowledgement to Tenant
by the vendee or lessee of its receipt of the Security Deposit from Landlord and
its agreement to be bound by Landlord's obligations and liabilities with regard
to the Security Deposit; and Tenant shall look solely to the new landlord for
the return or payment of the same; and the provisions hereof shall apply to
every transfer or assignment made of the same to a new landlord. Tenant shall
not assign or encumber or attempt to assign or encumber the monies deposited
herein as security, and neither Landlord nor its successors or assigns shall be
bound by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
(b) Tenant shall provide to Landlord an irrevocable Letter of Credit in
the amount of Five Hundred Thousand and 00/100 Dollars ($500,000.00) in form and
substance reasonably satisfactory to Landlord and issued by a financial
institution approved by Landlord. Landlord shall have the right, upon at least
ten (10) days written notice specifying the nature of the default to Tenant
(except for Tenant's non-payment of Rent [beyond any applicable cure period] or
for Tenant's failure to comply with Article 8.03 for which not less than five
(5) days written notice specifying the nature of the default shall be required),
and regardless of the exercise of any other remedy the Landlord may have by
reason of a default beyond any applicable cure period, to draw upon said Letter
of Credit to cure any default of Tenant beyond any applicable cure period or for
any purpose authorized by section 8.01(a) of this Lease and if Landlord does so,
Tenant shall, upon demand, additionally fund the Letter of Credit with the
amount so drawn so that Landlord shall have the full deposit on hand at all
times during the Term of the Lease and for a period of thirty (30) days'
thereafter. In the event of a sale of the Building or a lease of the Building
subject to this Lease, Landlord shall have the right to transfer the security to
the vendee or lessee in accordance with Section 8.01(a) above, and Landlord
shall thereupon be released by Tenant from all liability for the return or
payment thereof upon the acknowledgement to Tenant by the vendee or lessee of
its receipt of the Security Deposit from Landlord and its agreement to be bound
by Landlord's obligations and liabilities with regard to the Security Deposit;
and Tenant shall look solely to the new landlord for the return or payment of
the same; and the provisions hereof shall apply to every transfer or assignment
made of the same to a new landlord. The Letter of Credit may contain the
condition that any sight draft to be drawn thereunder in accordance with this
Lease be signed by an officer (President, Executive Vice President, Vice
President or Treasurer) of the corporate general partner of Landlord and state
that Landlord is entitled to draw on the Letter of Credit and that Landlord has
provided to Tenant all requisite notices regarding the same as provided in this
Section 8.01(b) and 8.03 below.
8.02. The Letter of Credit shall expire not earlier than thirty (30)
days after the Expiration Date of this Lease. The Letter of Credit may be of the
type which is automatically renewed on an annual basis (Annual Renewal Date),
provided however, in such event Tenant shall maintain the Letter of Credit and
its renewals in full force and effect during the entire Term of this Lease
(including any renewals or extensions) and for a period of thirty (30) days
thereafter. The Letter of Credit will contain a provision requiring
14
the issuer thereof to give the beneficiary (Landlord) sixty (60) days' advance
written notice of its intention not to renew the Letter of Credit on the next
Annual Renewal Date.
8.03. In the event Tenant shall fail to deliver to Landlord a substitute
irrevocable Letter of Credit, in the amount stated above or subject to the
provisions of 8.04 below, on or before thirty (30) days prior to the next Annual
Renewal Date, said failure shall be deemed a default under this Lease. Landlord
may, in its discretion treat this the same as a default in the payment of Rent
or any other default and pursue the appropriate remedy. In addition, and not in
limitation, Landlord shall be permitted to draw upon the Letter of Credit as in
the case of any other default by Tenant under the Lease, except that Landlord
need only provide Tenant with five (5) days prior written notice specifying the
nature of the default to draw upon the Letter of Credit.
8.04. Provided Tenant is not then in default of its obligations under
this Lease beyond any applicable cure period, (i) Landlord shall consent to a
reduction of the Security Deposit in the amount of Three Hundred Fifty Seven
Thousand Eight Hundred and 00/100 Dollars ($357,800.00) on the second
anniversary of the Commencement Date resulting in a total Security Deposit of
One Hundred Forty Two Thousand Two Hundred and 00/100 Dollars ($142,200.00); and
(ii) Landlord shall consent to a further reduction of the Security Deposit in
the amount of Thirty Six Thousand Eight Hundred Sixty Six and 67/100 Dollars
($36,866.67) on the fifth (5th) anniversary of the Commencement Date resulting
in a total Security Deposit of One Hundred Five Thousand Three Hundred Thirty
Three and 33/100 Dollars ($105,333.33) which shall be held for the balance of
the Term. In each case, the applicable reduction shall be reflected by a
reduction in the amount of the Letter of Credit as so indicated. In no event
however shall the Letter of Credit contain a provision for its automatic
reduction.
ARTICLE 9 - SUBORDINATION
9.01. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all ground leases and underlying leases of the Land
and/or the Building now or hereafter existing and to all Mortgages which may now
or hereafter affect the Land and/or Building and/or any of such leases, whether
or not such Mortgages or leases shall also cover other lands and/or buildings,
to each and every advance made or hereafter to be made under such Mortgages, and
to all renewals, modifications, replacements and extensions of such leases and
such Mortgages and spreaders and consolidations of such Mortgages. The
provisions of this Section 9.01 shall be self-operative and no further
instrument of subordination shall be required. In confirmation of such
subordination, Tenant shall promptly execute, acknowledge and deliver any
instrument that Landlord, the lessor under any such lease or the Mortgagee of
any such Mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination. Notwithstanding any of the
foregoing to the contrary, this Lease shall be contingent upon Landlord
obtaining for Tenant a Non-Disturbance, Subordination, and Attornment Agreement
with the holder of the first mortgage on the Demised Premises on such
mortgagee's standard form (the "SNDA") providing, in effect, that so long
15
as no default exists which would entitle Landlord to terminate this Lease, (i)
Mortgagee shall not join Tenant in summary or foreclosure proceedings in
connection with the foreclosure of the Mortgage or other similar action in
connection with any Superior Lease, and (ii) Mortgagee will recognize Tenant and
will not disturb Tenant in its possession of the Demised Premises, which Tenant
shall promptly execute, acknowledge and deliver to evidence such subordination,
non-disturbance and attornment; Landlord represents that such Mortgagee is the
only Mortgagee of the Land and Building. Landlord and Tenant shall cooperate in
all respects with each other and such mortgagee, and shall provide any
information reasonably required by such mortgagee. Landlord shall not be
required to use anything other than reasonable efforts nor shall Landlord be
required to institute any legal action or proceeding, in order to obtain said
agreement. If Landlord is unable to deliver such SNDA by the date which is ten
(10) Business Days from the date hereof, then, in such event, either party
hereto shall have the right to terminate this Lease upon written notice to the
other given no later than five (5) days after Landlord shall have provided to
Tenant notice from Landlord that it is unable to deliver such SNDA; it being
understood and agreed, however, that Landlord may only terminate this Lease in
the event that such Mortgagee has refused or declined to grant its consent to
this Lease. In such event, Landlord shall promptly return to Tenant the Advance
Rent and Security Deposit and the rights and obligations of each party hereunder
and this Lease shall be deemed null and void and without force and effect.
Further notwithstanding anything to the contrary set forth herein, this Lease
shall be subordinate to future mortgages or leases only on the condition that
Landlord shall obtain from any such future mortgagee or lessor a subordination,
non-disturbance and attornment agreement with respect to this Lease on such
mortgagee's or lessor's standard form, providing, in effect, that so long as no
default exists which would entitle Landlord to terminate this Lease, (i) such
mortgagee and/or lessor, as the case may be, shall not join Tenant in summary or
foreclosure proceedings in connection with the foreclosure of the Mortgage or
other similar action in connection with any Superior Lease, and (ii) such
mortgagee and/or lessor, as the case may be, will recognize Tenant and will not
disturb Tenant in its possession of the Demised Premises, which Tenant shall
promptly execute, acknowledge and deliver to evidence such subordination,
non-disturbance and attornment. Landlord represents that the Land and Building
is the subject of a Superior Lease with Xxxxx Mountain Industries, Inc., as
lessor, and Landlord, as lessee. Landlord agrees that it shall provide to Tenant
on substantially the same form of SNDA used by the Superior Mortgagee an SNDA
from Xxxxx Mountain Industries, Inc., as Superior Lessor, in favor of Tenant,
subject and subordinate, however, to the Superior Mortgage to which the Superior
Lease is subject, which is the same Mortgage to which the Demised Premises and
this Lease is subject. The SNDA from the holder of the first mortgage on the
Demised Premises shall be effective notwithstanding the existence or
non-existence of any Superior Lease. Landlord agrees that it shall pay all
reasonable legal fees and/or other reasonable charges imposed by any Mortgagee
with respect to the agreements requested under this Section 9.01 with respect to
any standard form SNDA executed and delivered by Tenant and any such Mortgagee;
provided, however, that Tenant agrees to pay not later than fifteen days after
demand therefor any and all legal fees and/or other
16
expenses charged by such Mortgagee as a result of any negotiation or
modification of such Mortgagee's standard form SNDA after the execution and
delivery of this Lease.
9.02. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right (a) until it has given written notice of such act or omission to Landlord
and each Superior Mortgagee and each Superior Lessor whose name and address
shall at least fifteen (15) days previously have been furnished to Tenant, and
(b) until a reasonable period for remedying such act or omission shall have
elapsed following the giving of such notice and following the time when such
Superior Mortgagee or Superior Lessor shall have become entitled under such
Superior Mortgage or Superior Lease, as the case may be, to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this Lease or otherwise, after similar notice,
to effect such remedy), provided such Superior Mortgagee or Superior Lessor
shall with due diligence give Tenant notice of intention to, and commence and
continue to, remedy such act or omission.
9.03. If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that, as may otherwise be
specifically set forth in any applicable SNDA, the Successor Landlord shall not
(a) be liable for any previous act or omission of Landlord under this Lease; (b)
be subject to any offset, not expressly provided for in this Lease, which
theretofore shall have accrued to Tenant against Landlord; (c) be liable for the
return of any Security Deposit, in whole or in part, to the extent that same is
not paid over to the Successor Landlord; or (d) be bound by any previous
modification of this Lease or by any previous prepayment of more than one
month's Fixed Rent or Additional Charges, except for any adjustments, refunds,
or credits due to Tenant on account of any overpayments of Additional Charges,
unless such modification or prepayment shall have been expressly approved in
writing by the Superior Lessor of the Superior Lease or the Mortgagee of the
Superior Mortgage through or by reason of which the Successor Landlord shall
have succeeded to the rights of Landlord under this Lease.
9.04. If any then present or prospective Superior Mortgagee shall
require any reasonable modification(s) of this Lease, Tenant shall promptly
execute and deliver to Landlord such instruments effecting such reasonable
modification(s) as Landlord shall request, provided that such modification(s) do
not adversely affect any of Tenant's rights under this Lease.
17
ARTICLE 10 - QUIET ENJOYMENT
10.01. So long as Tenant pays all of the Rent and performs all of
Tenant's other obligations hereunder, Tenant shall peaceably and quietly have,
hold and enjoy the Demised Premises without hindrance, ejection or molestation
by Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions of this Lease and to Superior Leases and
Superior Mortgages.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01. Tenant shall not, whether voluntarily, involuntarily, or by
operation of law or otherwise, (a) assign or otherwise transfer this Lease, or
offer or advertise to do so, (b) sublet the Demised Premises or any part
thereof, or offer or advertise to do so, or allow the same to be used, occupied
or utilized by anyone other than Tenant or its Affiliates, or (c) mortgage,
pledge, encumber or otherwise hypothecate this Lease in any manner whatsoever,
without in each instance obtaining the prior written consent of Landlord;
provided, however, that Landlord agrees not to unreasonably withhold or delay
its consent to a subletting or assignment under subsections (a) and (b) of this
Section 11.01. In determining reasonableness, Landlord may take into
consideration all relevant factors surrounding the proposed sublease and
assignment, including, without limitation, the following: (i) The business
reputation of the proposed assignee or subtenant and its officers or directors
in relation to the other tenants or occupants of the Building; (ii) The nature
of the business and the proposed use of the Demised Premises by the proposed
assignee or subtenant in relation to the other tenants or occupants of the
Building; (iii) the proposed assignee or subtenant shall not be a tenant (or
subsidiary, affiliate or parent of a tenant) of other space in the Building;
(iv) The financial condition of the proposed assignee or subtenant; (v)
Restrictions, if any, contained in leases or other agreements affecting the
Building; (vi) The effect that the proposed assignee's or subtenant's occupancy
or use of the Demised Premises would have upon the operation and maintenance of
the Building and Landlord's investment therein; (vii) The extent to which the
proposed assignee or subtenant and Tenant provide Landlord with assurances
reasonably satisfactory to Landlord as to the satisfaction of Tenant's
obligations hereunder. In any event, at no time shall there be more than three
(3) subtenants (in addition to Tenant) of the Demised Premises permited. For
purposes of this Article, "Affiliates" shall mean any Person owning or
controlling Tenant or controlled by Tenant, or under common ownership or control
with or by Tenant. For purposes hereof, "ownership or control" shall mean the
legal or beneficial ownership of fifty-one percent (51%) or more of the voting
stock of any corporation, or, if not a corporation, fifty-one percent (51%) of
the partnership interest or other form of ownership.
11.02. If at any time (a) the original Tenant named herein, (b) the then
Tenant, (c) any Guarantor, or (d) any Person owning a majority of the voting
stock of, or directly or indirectly controlling, the then Tenant shall be a
corporation or partnership, any transfer of voting stock or partnership interest
resulting in the person(s) who shall have owned a majority of such corporation's
shares of voting stock or the general partners' interest in such
18
partnership, as the case may be, immediately before such transfer, ceasing to
own a majority of such shares of voting stock or general partner's interest, as
the case may be, except as the result of transfers by inheritance, shall be
deemed to be an assignment of this Lease as to which Landlord's consent shall
have been required, and in any such event Tenant shall notify Landlord. The
provisions of this Section 11.02 shall not be applicable to any corporation all
the outstanding voting stock of which is listed on a national securities
exchange (as defined in the Securities Exchange Act of 1934, as amended) or is
traded in the over-the-counter market with quotations reported by the National
Association of Securities Dealers through its automated system for reporting
quotations and shall not apply to transactions with a corporation into or with
which the then Tenant is merged or consolidated or to which substantially all of
the then Tenant's assets are transferred or to any corporation which controls or
is controlled by the then Tenant or is under common control with the then
Tenant, provided that in any of such events (i) the successor to Tenant has a
net worth computed in accordance with generally accepted accounting principles
at least equal to the net worth of the original Tenant on the date of this
Lease, and (ii) proof satisfactory to Landlord of such net worth shall have been
delivered to Landlord at least 10 days prior to the effective date of any such
transaction. For the purposes of this Section, the words "voting stock" shall
refer to shares of stock regularly entitled to vote for the election of
directors of the corporation. Landlord shall have the right at any time and from
time to time during the Term to inspect the stock record books of the
corporation to which the provisions of this Section 11.02 apply, and Tenant will
produce the same on request of Landlord; provided, however, that for so long as
Tenant shall be a privately held corporation, Landlord shall agrees to keep such
information confidential, except that Landlord may disseminate such information
to its legal counsel and accountants and shall not be restricted from using any
such information in connection with the enforcement of this Lease or any claims
or litigation arising therefrom or otherwise under this Lease. The foregoing
provisions of this Article 11.02, as to the original named Tenant or any
Affiliate thereof only, shall not be applicable to, and shall not be deemed to
require Landlord's consent to (i) transfers of stock among existing stockholders
or among spouses, children or grandchildren of existing stockholders or inter
vivos or testamentary transfers to rusts established for the benefit of such
persons, (ii) a public offering of the stock of Tenant or (iii) the transfer of
outstanding voting stock registered under applicable securities laws of Tenant
which are traded on a recognized national securities exchange, or (iv) the sale
of a majority of Tenant's shares of voting stock in one or more transactions,
unless at the time of such transfer or series of transfers, the primary asset of
the Tenant as then constituted shall be this Lease.
11.03 If this Lease is assigned, whether or not in violation of this
Lease, Landlord may collect rent from the assignee. If the Demised Premises or
any part thereof are sublet or used or occupied by anybody other than Tenant,
whether or not in violation of this Lease, Landlord may, after default by
Tenant, and expiration of Tenant's time to cure such default, collect rent from
the subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of Section 11.01 or
Section 11.02, or the acceptance of the assignee, subtenant or
19
occupant as tenant, or a release of Tenant from the performance by Tenant of
Tenant's obligations under this Lease. The consent by Landlord to any
assignment, mortgaging, subletting or use or occupancy by others shall not in
any way be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or subletting
or use or occupancy by others not expressly permitted by this Article 11.
References in this Lease to use or occupancy by others (that is, anyone other
than Tenant) shall not be construed as limited to subtenants and those claiming
under or through subtenants but shall be construed as including also licensees
and others claiming under or through Tenant, immediately or remotely.
11.04. Any permitted assignment or transfer, whether made with
Landlord's consent pursuant to Section 11.01 or without Landlord's consent if
permitted by Section 11.02, shall be made only if, and shall not be effective
until, the assignee shall execute, acknowledge and deliver to Landlord an
agreement in form and substance reasonably satisfactory to Landlord whereby the
assignee shall assume Tenant's obligations under this Lease and whereby the
assignee shall agree that all of the provisions in this Article 11 shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect to all future assignments and transfers. Notwithstanding any assignment
or transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of Rent by Landlord from an assignee, transferee,
or any other party, the original Tenant and any other person)s) who at any time
was or were Tenant shall remain fully liable for the payment of the Rent and for
Tenant's other obligations under this Lease.
11.05. The liability of the original named Tenant and any other
Person(s) (including but not limited to any Guarantor) who at any time are or
become responsible for Tenant's obligations under this Lease shall not be
discharged, released or impaired by any agreement extending the time of, or
modifying any of the terms or obligations under this Lease, or by any waiver or
failure of Landlord to enforce, any of this Lease.
11.06. The listing of any name other than that of Tenant, whether on the
doors of the Demised Premises or the Building directory, or otherwise, shall not
operate to vest any right or interest in this Lease or in the Demised Premises,
nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this Lease or to any sublease of the Demised Premises or to the use
or occupancy thereof by others.
11.07. Without limiting any of the provisions of Article 27, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant is permitted to assign this Lease notwithstanding
the restrictions contained in this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance
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of the Term, without interest, as security for the full performance of all of
Tenant's obligations under this Lease, to be held and applied in the manner
specified for security in Section 8.01.
11.08. If Tenant shall propose to assign or in any manner transfer this
Lease or any interest therein, or sublet the Demised Premises or any part or
parts thereof, or grant any concession or license or otherwise permit occupancy
of all or any part of the Demised Premises by any person, Tenant shall give
notice thereof to Landlord, together with a copy of the proposed instrument that
is to accomplish same and such financial and other information pertaining to the
proposed assignee, transferee, subtenant, concessionaire or licensee as Landlord
shall reasonably require. Notwithstanding anything contained in this Lease to
the contrary, Landlord shall not be obligated to entertain or consider any
request by Tenant to consent to any proposed assignment of this Lease or sublet
of all or any part of the Demised Premises unless each request by Tenant is
accompanied by a non-refundable fee payable to Landlord in the amount of One
Thousand Dollars ($1,000.00) to cover Landlord's administrative, legal, and
other costs and expenses incurred in processing each of Tenant's requests.
Neither Tenant's payment nor Landlord's acceptance of the foregoing fee shall be
construed to impose any obligation whatsoever upon Landlord to consent to
Tenant's request. If Tenant does not consummate the subject transaction within
sixty (60) days after notice of such transaction to Landlord, Tenant shall again
be required to comply with the provisions of this Section 11.08 in connection
with any such transaction as if the notice by Tenant referred to above in this
Section 11.08 had not been given.
11.09. If Landlord shall give its consent to any assignment of this
Lease or to any sublease of all or any portion of the Demised Premises, Tenant
shall in consideration therefor pay to Landlord as an Additional Charge the
following amounts less the actual reasonable expense incurred by Tenant in
connection with such assignment or subletting, as substantiated by Tenant, in
writing, to Landlord's reasonable satisfaction, including, without limitation, a
reasonable brokerage fee and reasonable legal fees, as the case may be: (i) in
the case of an assignment, an amount equal to fifty (50%) percent of the amount
by which all sums and other consideration paid to Tenant by the assignee for or
by reason of such assignment exceed the Fixed Rent and Additional Charges
hereunder; and (ii) in the case of a sublease, fifty (50%) percent of any rents,
additional charge or other consideration payable under the sublease to Tenant by
the subtenant which is in excess of the Fixed Rent and Additional Charges
accruing during the term of the sublease in respect of the subleased space (at
the rate per square foot payable by Tenant hereunder) pursuant to the terms
hereof. The sums payable under this Section 11.09 shall be paid to Landlord as
an Additional Charge as and when paid by the assignee or subtenant to Tenant.
The terms and provisions of this Section 11.09 and the preceding Section 11.08
shall not apply to any transaction permitted pursuant to the terms and
provisions of Section 11.02 hereof.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01. Landlord represents and warrants to Tenant that as of the
Commencement Date the Demised Premises shall be in compliance with all Legal
21
Requirements. After the Commencement Date, Tenant shall comply with all Legal
Requirements which shall, in respect of the Demised Premises or the use and
occupation thereof, or the abatement of any nuisance in, on or about the Demised
Premises, impose any violation, order or duty on Landlord or Tenant; and Tenant
shall pay all the costs, expenses, fines, penalties and damages which may be
imposed upon Landlord or any Superior Lessor by reason of or arising out of
Tenant's failure to fully and promptly comply with and observe the provisions of
this Section 12.01. However, Tenant need not comply with any such law or
requirement of any public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 12.02. Notwithstanding any of the foregoing to the
contrary, after the Commencement Date, Landlord is to perform all work requiring
a capital expenditure at the Demised Premises for compliance with Legal
Requirements, and the cost thereof shall be payable by Tenant as Rent, as an
Operating Expense (in addition to the Operating Expenses payable pursuant to
Section 6.01 hereof), except that, the monthly amount included in Rent during
the Term with respect thereto will be limited to the monthly amount necessary to
amortize the cost of such item, without interest, over its useful life (it being
understood and agreed that Tenant shall not have any liability for the
amortization thereof extending beyond the Term of this Lease), in accordance
with generally accepted accounting principles consistently applied; provided,
however, that Tenant, at its sole expense, shall pay for all capital
expenditures to comply with Legal Requirements which are required due to
Tenant's Work, or negligence or willful acts or Tenant's particular use or
particular manner of use of the Demised Premises. Landlord shall comply with all
Legal Requirements which shall, in respect of the Common Areas of the Building,
impose any violation, order or duty on Landlord, and the cost of same as
reasonably incurred shall be included in Operating Expenses.
12.02. Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime, and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord either
(i) the bond of a surety company reasonably satisfactory to Landlord, which bond
shall be, as to its provisions and form, reasonably satisfactory to Landlord,
and shall be in an amount at least equal to 125% of the cost of such compliance
(as estimated by a reputable contractor designated by Landlord) and shall
indemnify Landlord against the cost thereof and against all liability for
damages, interest, penalties and expenses (including reasonable attorneys' fees
and expenses), resulting from or incurred in connection with such contest or
non-compliance, or (ii) other security in place of such bond reasonably
satisfactory to Landlord; (c) such non-compliance or contest shall not
constitute or result in any violation of any Superior Lease or Superior
Mortgage, or if any such Superior Lease and/or Superior Mortgage shall permit
such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such security
shall be furnished at the expense of Tenant; and (d) Tenant shall keep Landlord
advised as to the status of such proceedings.
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Without limiting the application of the above, Landlord shall be deemed subject
to prosecution for a crime if Landlord, or its managing agent, or any officer,
director, partner, shareholder or employee of Landlord or its managing agent, as
an individual, is charged with a crime of any kind or degree whatsoever, whether
by service of a summons or otherwise, unless such charge is withdrawn before
Landlord or its managing agent, or such officer, director, partner, shareholder
or employee of Landlord or its managing agent (as the case may be) is required
to plead or answer thereto. Notwithstanding anything contained in this Lease to
the contrary, Tenant shall not file any Real Estate Tax Appeal with respect to
the Land, Building or the Demised Premises.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01. Throughout the Term, Landlord shall maintain or cause to be
maintained All Risk insurance in respect of the Building, the improvements in
the Demised Premises constructed as part of Landlord's Work, but excluding
Tenant's Property) and other improvements on the Land normally covered by such
insurance (except for the property Tenant is required to cover with insurance
under Section 13.02 and similar property of other tenants and occupants of the
Building or buildings and other improvements which are on land neither owned by
nor leased to Landlord) for the benefit of Landlord, any Superior Lessors, any
Superior Mortgagees and any other parties Landlord may at any time and from time
to time designate, as their interests may appear, but not for the benefit of
Tenant, and shall maintain rent insurance as required by any Superior Lessor or
any Superior Mortgagee. The All Risk insurance will be in the amounts required
by any Superior Lessor or any Superior Mortgagee but not less than the amount
sufficient to avoid the effect of the co-insurance provisions of the applicable
policy or policies. Landlord may also maintain any other forms and types of
insurance which Landlord shall deem reasonable in respect of the Building and
Land. Landlord shall have the right to provide any insurance maintained or
caused to be maintained by it under blanket policies.
13.02. Tenant shall maintain the following insurance: (a) comprehensive
general public liability insurance in respect of the Demised Premises and the
conduct and operation of business therein, having not less than a $5,000,000.00
combined single limit per occurrence for bodily injury or death to any one
person and for bodily injury or death to any number of persons in any one
occurrence, and for property damage, including water damage and sprinkler
leakage legal liability (coverage to include but not be limited to (i) premises
operation, completed operations, broad form contractual liability and product
liability, (ii) comprehensive automobile, truck and vehicle liability insurance
covering all owned, hired and non-owned vehicles used by the contractor(s) in
connection with their work and any loading of such vehicles, with limits as
stated above and (iii) worker's compensation, employers liability and
occupational disease insurance as required by statutes), (b) air conditioning
and machinery insurance, protecting Landlord and Tenant, with limits of not less
than $500,000, if there is a boiler or pressure object or other similar
equipment in the Demised Premises owned by Tenant, and (c) All Risk insurance in
respect of Tenant's stock in trade, fixtures, furniture, furnishings, removable
floor coverings, equipment, signs
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and all other property of Tenant in the Demised Premises in any amounts
reasonably required by any Superior Lessor or any Superior Mortgagee but not
less than eighty percent (80%) of the full insurable value of the property
covered and not less than the amount sufficient to avoid the effect of the
co-insurance provisions of the applicable policy or policies. Landlord may at
any time and from time to time require that the limits for the comprehensive
general public liability insurance to be maintained by Tenant be reasonably
increased to the limits that new tenants in the Building are required by
Landlord to maintain. Tenant shall deliver to Landlord and any additional
insured(s) certificates for such policies at least ten (10) days before the
Commencement Date. Tenant shall procure renewals of such insurance from time to
time before the expiration thereof, and Tenant shall deliver to Landlord and any
additional insured(s) certificates therefor at least thirty (30) days before the
expiration of any existing policy. All such policies shall be issued by
companies of recognized responsibility, having a Bests Key Rating Guide of not
less than A-, Class VII, licensed to do business in New Jersey, and all such
policies shall contain a provision whereby the same cannot be canceled unless
Landlord and any additional insured(s) are given at least thirty (30) days'
prior written notice of such cancellation. The certificates of insurance to be
delivered to Landlord by Tenant shall upon fifteen (15) days notice name
Landlord as an additional insured and, at Landlord's request, shall also name
upon fifteen (15) days notice any Superior Lessors or Superior Mortgagees as
additional insureds, and the following will be added to the policy and shown on
any certificate of insurance thereof or be attached thereto as an endorsement:
"Xxxxx Mountain Industries, Inc., and its respective subsidiaries, affiliates,
associates, joint ventures, and partnerships, are hereby named as additional
insureds as their interests may appear (and if Landlord has so requested, Tenant
shall include any Superior Lessors and Superior Mortgagees as additional
insured(s)). It is intended for this insurance to be primary and
non-contributing." Tenant shall give Landlord at least thirty (30) days' prior
written notice that any such policy is being canceled or replaced.
13.03. Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner whereby
the fire insurance or any other insurance then in effect in respect of the Land
and Building or any part thereof shall become void or suspended or whereby any
premiums in respect of insurance maintained by Landlord shall be higher than
those which would normally have been in effect for the occupancy contemplated
under the Permitted Uses. In case of a breach of the provisions of this Section
13.03, in addition to all other rights and remedies of Landlord hereunder,
Tenant shall (a) indemnify Landlord and the Superior Lessors and hold Landlord
and the Superior Lessors harmless from and against any loss which would have
been covered by insurance which shall have become void or suspended because of
such breach by Tenant and (b) pay to Landlord any and all increases of premiums
on any insurance, including, without limitation, rent insurance, resulting from
any such breach.
13.04. Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and
24
all claims arising from or in connection with (a) the conduct or management of
the Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in the Demised Premises
during the Term or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises; (b) any
act, omission or negligence of Tenant or any of its subtenants or licensees or
its or their partners, joint ventures, directors, officers, agents, or employees
in connection with the Demised Premises; and (c) any accident, injury or damage
whatever (except to the extent caused solely by Landlord's negligence) occurring
in the Demised Premises; together with all costs, expenses and liabilities
incurred in or in connection with each such claim or action or proceeding
brought thereon, including, without limitation, all attorneys' fees and
expenses. In case any action or proceeding is brought against Landlord and/or
any Superior Lessor and/or its or their partners, joint venturers, directors,
officers, agents and/or employees by reason of any such claim, Tenant, upon
notice from Landlord or such Superior Lessor, shall resist and defend such
action or proceeding (by counsel reasonably satisfactory to Landlord). Landlord
shall indemnify and hold harmless Tenant and its partners, joint venturers,
directors, officers, agents, servants from and against any and all claims
arising from or in connection with (a) the possession, use, occupation,
management, repair, maintenance or control of the Common Areas or Building or a
portion thereof by Landlord during the Term, (b) willful or negligent act or
omission of Landlord or its partners, joint ventures, directors, officers,
agents, or employees in connection with the Commo Areas or Building, (c) any
accident, injury or damage to persons or property or loss of life sustained in
the Common Areas or the Building to the extent due to the negligent or willful
acts or omission of Landlord or its partners, joint ventures, directors,
officers, agents, or employees; together with all costs, expenses and
liabilities incurred in connection with each such claim, action or proceeding
brought thereon including, without limitation, all attorney's fees and expenses.
In case any action or proceeding it brought against Tenant and/or its partners,
joint venturers, directors, officers, agents and/or employees by reason of any
such claim, Landlord, upon notice from Tenant, shall resist and defend such
action or proceeding by counsel reasonably satisfactory to Tenant.
13.05. Neither party shall be liable or responsible for, and each party
hereby releases the other from, all liability and responsibility to the other
and any person claiming by, through or under the other, by way of subrogation
for any injury, loss or damage to any person or property in or around the
Demised Premises, the Building or Common Areas or to the other's business
covered by insurance carried or required to be carried hereunder irrespective of
the cause of such injury, loss or damage, and each party shall require its
insurers to include in all of such party's insurance policies which could give
rise to a right of subrogation against the other a clause or endorsement whereby
the insurer waives any rights of subrogation against the other or permits the
insured, prior to any loss, to agree with a third party to waive any claim it
may have against said third party without invalidating the coverage under the
insurance policy.
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ARTICLE 14 - RULES AND REGULATIONS
14.01. Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
judgment, shall be necessary for the reputation, safety, care or appearance of
the Land and Building, or the preservation of good order therein, or the
operation or maintenance of the Building or its equipment and fixtures, or the
Common Areas, and which do not unreasonably affect the conduct of Tenant's
business in the Demised Premises; provided, however, that in case of any
conflict or inconsistency between the provisions of this Lease and any of the
Rules and Regulations, the provisions of this Lease shall control. Nothing in
this Lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations against any other tenant or any
employees or agents of any other tenant, and Landlord shall not be liable to
Tenant for violation of the Rules and Regulations by any other tenant or its
employees, agents, invitees or licensees. Notwithstanding the foregoing,
Landlord agrees not to apply or enforce the Rules and Regulations in a
discriminatory manner.
ARTICLE 15 - ALTERATIONS
15.01. Tenant shall not make any alterations or additions to the Demised
Premises, or make any holes or cuts in the walls, ceilings, roofs, or floors
thereof, or change the exterior color or architectural treatment of the Demised
Premises, without on each occasion first obtaining the consent of Landlord.
Tenant shall submit to Landlord plans and specifications for such work at the
time Landlord's consent is sought. Notwithstanding anything to the contrary
contained in this Lease, it is understood and agreed that Landlord shall not
unreasonably withhold, condition or delay its consent to non-structural
alterations and additions to the Demised Premises. Landlord's consent shall not
be required for the decoration, painting and/or fixturing of the Demised
Premises, or for any non-structural work costing less than $20,000 and which
does not require a building permit and which does not affect or tie-in to
Building mechanical systems ("Decorative Work"). Tenant shall pay to Landlord
not later than fifteen days after invoice or notice thereof the reasonable cost
and expense of Landlord in (a) reviewing said plans and specifications and (b)
inspecting the alterations to determine whether the same are being performed in
accordance with the approved plans and specifications and all Legal
Requirements, including, without limitation, the fees of any architect or
engineer employed by Landlord for such purpose; provided, however, that (i)
there shall be no charge in respect of Landlord's Work or the initial Tenant's
Work, (ii) Landlord shall not charge Tenant for any reviews or inspections
performed by in-house personnel, and (iii) in all other instances Landlord shall
use reasonable efforts to ensure that any such fees charged are only those
necessary to complete the task. Before proceeding with any permitted alteration
which will cost more than $50,000 (exclusive of the costs of decorating work and
items constituting Tenant's Property), as estimated by a reputable contractor
designated by Landlord, Tenant shall obtain and deliver to Landlord either (i) a
performance bond and a labor and materials payment bond (issued by a corporate
surety licensed to do business
26
in New Jersey), each in an amount equal to 125% of such estimated cost and in
form reasonably satisfactory to Landlord, or (ii) such other security as shall
be reasonably satisfactory to Landlord. Tenant shall fully and promptly comply
with and observe the Rules and Regulations then in force in respect of the
making of alterations. Any review or approval by Landlord of any plans and/or
specifications with respect to any alterations is solely for Landlord's benefit,
and without any representation or warranty whatsoever to Tenant in respect of
the adequacy, correctness or efficiency thereof or otherwise.
15.02. Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of permitted alterations and
for final approval thereof upon completion, and shall cause alterations to be
performed in compliance therewith and with all applicable Legal Requirements.
Alterations shall be diligently performed in a good and workmanlike manner,
using new materials and equipment at least equal in quality and class to the
better of (a) the original installations of the Building, or (b) the then
standards for the Building established by Landlord. Except for Decorative Work,
Alterations shall be performed by contractors first approved by Landlord, which
approval shall not be unreasonably withheld or delayed; provided, however, that
any alterations in or to the mechanical, electrical, sanitary, heating,
ventilating, air conditioning or other systems of the Building shall be
performed only by the contractor(s) approved by Landlord, which approval shall
not be unreasonably withheld or delayed. Alterations shall be made in such
manner as not to unreasonably interfere with or delay and as not to impose any
additional expense upon Landlord in the construction, maintenance, repair or
operation of the Building; and if any such additional expense shall be incurred
by Landlord as a result of Tenant's making of any alterations, Tenant shall pay
any such additional expense upon demand. Throughout the making of alterations,
Tenant shall carry, or cause to be carried, worker's compensation insurance in
statutory limits and general liability insurance, with completed operation
endorsement, for any occurrence in or about the Building, under which Landlord
and its managing agent and any Superior Lessor whose name and address shall
previously (at least fifteen days prior thereto) have been furnished to Tenant
shall be named as additional insureds, in such limits as Landlord may reasonably
require, with insurers reasonably satisfactory to Landlord. Tenant shall furnish
Landlord with reasonably satisfctory evidence that such insurance is in effect
at or before the commencement of alterations and, on request, at reasonable
intervals thereafter during the making of alterations.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the Term,
whether or not by or at the expense of Tenant, shall be and remain a part of the
Demised Premises, shall be deemed to be the property of Landlord and shall not
be removed by Tenant, except as provided in Section 16.02. Further, any
carpeting or other personal property in the Demised Premises on the Commencement
Date, unless installed and paid for by Tenant, shall be and shall remain
Landlord's property and shall not be removed by Tenant.
27
16.02. All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant without expense to Landlord and
can be removed without structural damage to the Building and all furniture,
furnishings, and other movable personal property owned by Tenant and located in
the Demised Premises (collectively, "Tenant's Property") shall be and shall
remain the property of Tenant and may be removed by Tenant at any time during
the Term; provided that if any of the Tenant's Property is removed, Tenant shall
repair or pay the cost of repairing any damage to the Demised Premises, the
Building or the Common Areas resulting from the installation and/or removal
thereof. Any equipment or other property for which Landlord shall have granted
any allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant without expense to Landlord, shall not be
considered as the Tenant's Property and shall be deemed the property of
Landlord.
16.03. At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall remove from the Demised Premises all of the
Tenant's Property (except such items thereof as Landlord shall have expressly
permitted to remain, which property shall become the property of Landlord if not
removed), and Tenant shall repair any damage to the Demised Premises, the
Building and the Common Areas resulting from any installation and/or removal of
the Tenant's Property. Any items of the Tenant's Property which shall remain in
the Demised Premises after the Expiration Date or after a period of fifteen (15)
days following an earlier termination date, may, at the option of Landlord, be
deemed to have been abandoned, and in such case such items may be retained by
Landlord as its property or disposed of by Landlord, without accountability, in
such manner as Landlord shall reasonably determine at Tenant's expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01. Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein. Damage resulting from insured
risks shall be governed by Article 24 hereof. Tenant shall be responsible for
all repairs, interior and exterior, structural and nonstructural, ordinary and
extraordinary, in and to the Demised Premises, and the Building (including the
facilities and systems thereof) and the Common Areas the need for which arises
out of (a) the performance or existence of the Tenant's Work or alterations, (b)
the installation, use or operation of the Tenant's Property in the Demised
Premises, (c) the moving of the Tenant's Property in or out of the Building, or
(d) the act, omission, misuse or neglect of Tenant or any of its subtenants or
its or their employees, agents, contractors or invitees. Tenant shall promptly
replace all scratched, damaged or broken doors and glass in and about the
Demised Premises and shall be responsible for all repairs, maintenance and
replacement of wall and floor coverings in the Demised Premises and for the
repair and maintenance of all sanitary and electrical fixtures and equipment
therein. Tenant shall promptly make all repairs in or to the Demised Premises
for which Tenant is responsible, and any repairs required to be made by Tenant
to the mechanical,
28
electrical, sanitary, heating, ventilating, air-conditioning or other systems of
the Building shall be performed only by contractor(s) approved by Landlord,
which approval shall not be unreasonably withheld. Any other repairs in or to
the Building and the facilities and systems thereof for which Tenant is
responsible shall be performed by Landlord at Tenant's expense; but Landlord
may, at its option, before commencing any such work or at any time thereafter,
require Tenant to furnish to Landlord such security, in form (including, without
limitation, a bond issued by a corporate surety licensed to do business in New
Jersey) and amount, as Landlord shall deem necessary to assure the payment for
such work by Tenant. Tenant shall not permit or suffer the overloading of the
floors of the Demised Premises beyond one hundred (100) pounds per square foot.
17.02. Landlord shall be responsible for all repairs and maintenance in
and to the Building and structure thereof (including the facilities and systems
thereof), except for those repairs and maintenance for which Tenant is
responsible pursuant to any of the provisions of this Lease. Landlord shall use
reasonable efforts to promptly make all repairs and perform all maintenance for
which it is responsible; provided, however, that the foregoing reasonable
efforts shall not, in any event, require Landlord to perform or cause work to be
performed other than on Business Days during Business Hours.
17.03. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building. Landlord shall use its reasonable efforts to minimize any such
inconvenience, annoyance, interruption or injury to Tenant's business; provided,
however, that the foregoing reasonable efforts shall not, in any event, require
Landlord to perform or cause work to be performed other than on Business Days
during Business Hours.
ARTICLE 18 - ELECTRIC ENERGY
18.01. Landlord shall furnish to Tenant and Tenant shall purchase the
electric energy required by it in the Demised Premises on a sub-metered basis
from Landlord. Landlord shall xxxx actual metered costs from the public utility
to Tenant but shall add thereto Landlord's direct cost of meter reading,
billing, and maintaining the meters, transformers and switches on a pro-rata
basis among the Building's Tenants. The cost of electric energy to Tenant shall
in no event exceed what the Tenant would have paid directly to the public
utility had it been directly metered for secondary service. Tenant agrees to pay
such electric energy bills within fifteen (15) days from receipt thereof.
Landlord shall not be liable for any failure, inadequacy or defect in the
character or supply of electric current furnished to the Demised Premises not
caused by the negligence of Landlord. In the event Tenant is unable to use and
occupy the Demised Premises during any period of failure, of supply of electric
current furnished to the Demised Premises for a period of three (3) Business
Days or longer, Tenant shall be entitled to an abatement of Rent during the
period of such closure, unless (i) such failure of supply
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of electric current furnished to the Demised Premises is as a result of a breach
of Tenant's obligations under this Lease or otherwise due to the negligent or
intentional act of Tenant, or (ii) Tenant shall have used or occupied all or any
portion of the Demised Premises during such period, or (iii) Tenant shall be
compensated by its business interruption insurance with respect to such period.
The terms and provisions of the preceding two sentences shall apply only and be
personal to the original named Tenant hereunder. Nothing contained herein shall
be deemed to limit Landlord's ability or right to make a claim for or to collect
rent insurance proceeds in connection with any such failure of supply of
electric current. The provisions of this Section 18.01, shall not apply in the
case of damage by fire or other casualty or by eminent domain, in which case the
obligations of the parties shall be as provided in other Sections of this Lease.
18.02. Tenant's use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Demised Premises. In order to insure that
such capacity is not exceeded and to avert possible adverse effect upon the
Building's electric service, Tenant shall not, without Landlord's prior consent
in each instance (which shall not be unreasonably withheld or delayed), connect
any fixtures, appliances or equipment to the Building's electric distribution
system or make any alteration or addition to the electric system of the Demised
Premises existing on the Commencement Date. Should Landlord grant such consent,
all additional risers or other equipment required therefor shall be provided by
Landlord and the cost thereof shall be paid by Tenant to Landlord on demand.
ARTICLE 19 - HEAT, VENTILATION AND AIR-CONDITIONING
19.01. Landlord shall repair, maintain and operate the heating,
ventilating and air-conditioning ("HVAC") systems serving the Demised Premises,
and shall furnish HVAC in the Demised Premises as may be reasonably required
(except as otherwise provided in this Lease and except for any special
requirements of Tenant arising from its particular use of the Demised Premises)
for reasonably comfortable occupancy of the Demised Premises, during Business
Hours on Business Days. If Tenant shall require HVAC at any other time, Landlord
shall furnish such service for such times upon not less than six (6) hours
advance notice from Tenant, and Tenant shall pay to Landlord not later than
fifteen (15) days after invoice or notice thereof Landlord's then established
charges therefor. Landlord's present charge is $75 per hour, which may increase
based upon changes in PSE&G electricity billing rates (which are passed through
to Tenant without markup) or changes in those factors making up Landlord's
reasonable administrative and overhead expense with respect thereto. The
temperature maintained in the Demised Premises shall at all times be within the
limits prescribed by the Legal Requirements. Notwithstanding anything to the
contrary set forth herein, Tenant shall be solely responsible, at its expense,
to repair, maintain and operate the supplemental air-conditioning system serving
Tenant's computer room (the "Supplemental HVAC").
19.02. The performance by Landlord of its obligation under Section
19.01 in respect of HVAC is conditioned on the connected electric load within
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the Demised Premises not exceeding three and one-half (3 1/2) xxxxx per usable
square foot in the Demised Premises and the occupancy of the Demised Premises
not exceeding one (1) person for each two hundred (200) usable square feet, as
more particularly set forth in Exhibit C hereof. Use of the Demised Premises, or
any part thereof, in a manner exceeding the HVAC design conditions (including
occupancy and connected electrical load, all as more particularly described in
Exhibit C hereof), or rearrangement of partitioning which interferes with normal
operation of the HVAC in the Demised Premises, or the use of computer or data
processing machines or other machines or equipment, may require changes in the
HVAC systems servicing the Demised Premises, in order to provide comfortable
occupancy. Such changes, so occasioned, shall be made by Tenant, at its expense,
as alterations in accordance with the provisions of Article 15, but only to the
extent permitted and upon the conditions set forth in Article 15.
ARTICLE 20 - OTHER SERVICES; SERVICE INTERRUPTION
20.01. Landlord shall provide elevator service to the Demised Premises
(via the five passenger elevators and one freight elevator presently serving the
Building) during Business Hours on Business Days, and Landlord shall have at
least one (1) elevator subject to call at all other times. The use of the
elevators shall be subject to the Rules and Regulations.
20.02. Landlord shall cause the Demised Premises, including the exterior
and the interior of the windows thereof, to be cleaned in a manner standard to
the Building and in accordance with the standards set forth in Exhibit E. Tenant
shall pay to Landlord not later than fifteen (15) days after written request
therefor the costs incurred by Landlord for (a) extra cleaning work in the
Demised Premises required because of (i) misuse or neglect on the part of Tenant
or its subtenants or its or their employees or visitors, (ii) use of portions of
the Demised Premises for preparation, serving, consumption of food or beverages,
training rooms, data processing or reproducing operations, private lavatories or
toilets or other special purposes requiring greater or more difficult cleaning
work than office areas, (iii) interior glass partitions or unusual quantity of
interior glass surfaces, and (iv) non-building standard materials or finishes
installed by Tenant or at its request, and (b) removal from the Demised Premises
and the Building of any refuse and rubbish of Tenant in excess of that
ordinarily accumulated in business office occupancy or at times other than
Landlord's standard cleaning times, and (c) the use of the Demised Premises by
Tenant other than during Business Hours on Business Days. Landlord's cleaning
specifications as set forth on Exhibit E shall not require any extra cleaning
work as a result of any data processing or reproducing operations based upon the
original Tenant's Permitted Uses.
20.03. Landlord, its cleaning contractor and their employees shall have
access to the Demised Premises after 5:30 P.M. and before 8:00 A.M. and shall
have the right to use, without charge therefor, all light, power and water in
the Demised Premises reasonably required to clean the Demised Premises as
required under Section 20.02.
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20.04. Landlord shall furnish adequate hot and cold water to the Demised
Premises for drinking, lavatory and cleaning purposes. If Tenant uses water for
any other purpose Landlord may install and maintain, at Tenant's expense, meters
to measure Tenant's consumption of cold water and/or hot water for such other
purpose. Tenant shall reimburse Landlord for the quantities of cold water and
hot water shown on such meters not later than fifteen (15) days after invoice or
notice thereof.
ARTICLE 21 - ACCESS, CHANGES AND NAME
21.01. Except for the space within the inside surfaces of all walls,
hung ceilings, floors, windows and doors bounding the Demised Premises, all of
the Building, including, without limitation, exterior Building walls, core
corridor walls and doors and any core corridor entrance, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building facilities and the use thereof, as well
as reasonable access thereto through the Demised Premises for the purpose of
operating, maintenance, decoration and repair, are reserved to Landlord.
Landlord also reserves the right, to install, erect, use and maintain pipes,
ducts and conduits in and through the Demised Premises, provided (i) such are
properly enclosed, (ii) same do not materially interfere with Tenant's use and
occupancy of the Demised Premises, except in a de minimis manner (iii) same do
not reduce the size of the useable area of the Demised Premises, except in a de
minimis manner; and (iv) Landlord shall use reasonable efforts to locate same in
"back-room" areas, closets and the like.
21.02. Landlord and its agents shall have the right to enter and/or pass
through the Demised Premises at all reasonable times upon reasonable prior
notice to Tenant and accompanied by a representative of Tenant (except in the
event of emergency) (a) to examine the Demised Premises and to show them to
actual and prospective Superior Lessors, Superior Mortgagees, or prospective
purchasers of the Building, and (b) to make such repairs, alterations, additions
and improvements in or to the Demised Premises and/or in or to the Building or
its facilities and equipment as Landlord is required or desires to make.
Landlord shall be allowed to take all materials into and upon the Demised
Premises that may be required in connection therewith, without any liability to
Tenant and without any reduction of Tenant's obligations hereunder. During the
period of twelve (12) months prior to the Expiration Date, Landlord and its
agents may exhibit the Demised Premises to prospective tenants at all reasonable
times upon reasonable prior notice to Tenant and accompanied by a representative
of Tenant. Landlord shall use its reasonable efforts to minimize any
interference with Tenant's use and occupancy; provided, however, that the
foregoing reasonable efforts shall not, in any event, require Landlord to
perform or cause work to be performed other than on Business Days during
Business Hours.
21.03. If at any time any windows of the Demised Premises are
temporarily darkened or obstructed by reason of any repairs, improvements,
maintenance and/or cleaning in or about the Building, or if any part of the
Building or the Common Areas, other than the Demised Premises, is temporarily or
permanently closed or inoperable, the same shall not be deemed a
32
constructive eviction and shall not result in any reduction or diminution of
Tenant's obligations under this Lease. Landlord shall use reasonable efforts to
promptly make or do all such repairs, improvements, maintenance and cleaning and
to promptly remedy any such closing and inoperability and shall use its
reasonable efforts in connection therewith to minimize any interference with
Tenant's use and occupancy; provided, however, that the foregoing reasonable
efforts shall not, in any event, require Landlord to perform or cause work to be
performed other than on Business Days during Business Hours.
21.04. If, during the last month of the Term, Tenant has removed all or
substantially all of the Tenant's Property from and shall have vacated the
Demised Premises, Landlord may, without notice to Tenant, immediately enter the
Demised Premises and alter, renovate and decorate the same, without liability to
Tenant and without reducing or otherwise affecting Tenant's obligations
hereunder.
21.05. Landlord reserves the right, at any time and from time to time,
to make such changes, alterations, additions and improvements in or to the
Building (other than the Demised Premises) and the fixtures and equipment
thereof as Landlord shall deem necessary or desirable.
ARTICLE 22 - MECHANICS' LIENS AND OTHER LIENS
22.01. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to subject
Landlord's interest or estate to any liability under any mechanic's or other
lien law. If any mechanic's or other lien or any notice of intention to file a
lien is filed against the Land, or any part thereof, or the Demised Premises, or
any part thereof, for any work, labor, service or materials claimed to have been
performed or furnished for or on behalf of Tenant or anyone holding any part of
the Demised Premises through or under Tenant, Tenant shall cause the same to be
canceled and discharged of record by payment, bond or order of a court of
competent jurisdiction within fifteen (15) days after notice by Landlord to
Tenant.
ARTICLE 23 - NON-LIABILITY
23.01. Neither Landlord nor any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be liable to Tenant for
any loss, injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, unless
caused by or resulting from the negligence of Landlord, its agents, servants or
employees in the operation or maintenance of the Land or Building without
contributory negligence on the part of Tenant or any of its subtenants or
licensees or its or their employees, agents or contractors. Further, neither
Landlord nor any partner, joint venturer, director, officer, agent, servant or
employee of Landlord shall be liable (a) for any such damage caused by other
tenants or Persons in, upon or about the Land or Building, or caused by
operations in construction of any private, public or quasi-public work; or (b)
even if negligent, for consequential damages arising out of any loss of
33
use of the Demised Premises or any equipment or facilities therein by Tenant or
any Person claiming through or under Tenant.
23.02. INTENTIONALLY DELETED.
23.03. Notwithstanding any provision to the contrary, Tenant shall look
solely to the estate and property of Landlord in and to the Land and Building
(or the proceeds received by Landlord on a sale of such estate and property but
not the proceeds of any financing or refinancing thereof) in the event of any
claim against Landlord arising out of or in connection with this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises or
the Common Areas, and Tenant agrees that the liability of Landlord arising out
of or in connection with this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas shall be limited to
such estate and property of Landlord (or sale proceeds). No other properties or
assets of Landlord or any partner, joint venturer, director, officer, agent,
servant or employee of Landlord shall be subject to levy, execution or other
enforcement procedures for the satisfaction of any judgement (or other judicial
process) or for the satisfaction of any other remedy of Tenant arising out of,
or in connection with, this Lease, the relationship of Landlord and Tenant or
Tenant's use of the Demised Premises or the Common Areas and if Tenant shall
acquire a lien on or interest in any other properties or assets by judgment or
otherwise, Tenant shall promptly release such lien on or interest in such other
properties and assets by executing, acknowledging and delivering to Landlord an
instrument to that effect prepared by Landlord's attorneys. Notwithstanding any
of the foregoing to the contrary, as to the original Tenant hereunder, Landlord
agrees that the exculpatory provisions of this Section 23.03 shall not apply to
any cash proceeds of any Security Deposit wrongfully retained by Landlord and
not turned over to any Successor Landlord, and as a result thereof such
Successor Landlord does not credit Tenant with having paid over the Security
Deposit.
ARTICLE 24 - DAMAGE OR DESTRUCTION
24.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other casualty (and if this Lease shall
not be terminated as in this Article 24 hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises (except for the Tenant's Property) with reasonable dispatch after
notice to it of the damage or destruction and the collection of the insurance
proceeds attributable to such damage.
24.02. Subject to the provisions of Section 24.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall be
abated or reduced, as the case may be, in the proportion that the untenantable
area of the Demised Premises bears to the total area of the Demised Premises,
for the period from the date of the damage or destruction to (a) the date the
Demised Premises are rendered tenantable, as reasonably determined by Landlord
and Tenant, or (b) if the Building and not the Demised Premises is so damaged or
destroyed, the date on which the Demised Premises
34
shall be made tenantable; provided, however, should Tenant reoccupy a portion of
the Demised Premises during the period the repair or restoration work is taking
place and prior to the date that the Demised Premises are substantially repaired
or made tenantable the Rent allocable to such reoccupied portion (except to the
extent that Landlord continued to receive the proceeds of rent insurance as to
such reoccupied portion during such restoration period), based upon the
proportion which the area of the reoccupied portion of the Demised Premises
bears to the total area of the Demised Premises, shall be payable by Tenant from
the date of such occupancy.
24.03. If (a) the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other casualty, or (b) the Building shall be so
damaged or destroyed by fire or other casualty (whether or not the Demised
Premises are damaged or destroyed) that its repair or restoration requires the
expenditure, as estimated by a reputable contractor or architect designated by
Landlord, of more than twenty percent (20%) (or ten percent [10%] if such
casualty occurs during the last two [2] years of the Term) of the full insurable
value of the Building immediately prior to the casualty, or (c) the Building
shall be damaged or destroyed by fire or other casualty (whether or not the
Demised Premises are damaged or destroyed) and either the loss shall not be
covered by Landlord's insurance or the net insurance proceeds (after deducting
all expenses in connection with obtaining such proceeds) shall, in the
estimation of a reputable contractor or architect designated by Landlord be
insufficient to pay for the repair or restoration work, then in either such case
Landlord may terminate this Lease by giving Tenant notice to such effect as soon
as practicable, but not later than ninety (90) days after the date of the fire
or other casualty. Notwithstanding any of the foregoing to the contrary, if the
Building shall be so damaged or destroyed by fire or other casualty so that it
is rendered untenantable for Tenant's use and occupancy and its repair would
take more than ten (10) months from the date of the fire or other casualty to
accomplish (the "Restoration Period"), as reasonably estimated by the Architect,
(the "Architect's Determination"), then Tenant shall have the right to terminate
this Lease upon written notice to Landlord given within thirty (30) days of
notice of the Architect's Determination. Landlord shall give Tenant written
notice of the Architect's Determination as soon as practicable, but not later
than ninety (90) days after such damage or destruction.
24.04. Tenant shall not be entitled to terminate this Lease (except as
provided in Section 24.03 above) and no damages, compensation or claim shall be
payable by Landlord for inconvenience, loss of business or annoyance arising
from any repair or restoration of any portion of the Demised Premises or of the
Building pursuant to this Article 24. Landlord shall use its best efforts to
make such repair or restoration promptly and in such manner as not unreasonably
to interfere with Tenant's use and occupancy of the Demised Premises, but
Landlord shall not be required to do such repair or restoration work except
during Business Hours on Business Days.
24.05. Notwithstanding any of the foregoing provisions of this Article
24, if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, Landlord or any Superior Lessor or any Superior
35
Mortgagee shall be unable to collect all of the insurance proceeds (including,
without limitation, rent insurance proceeds) applicable to damage or destruction
of the Demised Premises or the Building by fire or other casualty, then, without
prejudice to any other remedies which may be available against Tenant, there
shall be no abatement or reduction of the Rent. Further, nothing contained in
this Article 24 shall relieve Tenant from any liability that may exist as a
result of any damage or destruction by fire or other casualty. Notwithstanding
anything to the contrary set forth herein, nothing contained in this Section
24.05 shall vitiate the mutual waiver of subrogation contained in Section 13.05
hereof with respect to insured risks.
24.06. Landlord will not carry insurance of any kind on the Tenant's
Property,and, except as provided by law or by reason of Landlord's breach of any
of its obligations hereunder, shall not be obligated to repair any damage to or
replace the Tenant's Property.
24.07. The provisions of this Article 24 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises
and/or Building by fire or other casualty, and any law providing for such a
contingency in the absence of an express agreement, now or hereafter in force,
shall have no application in such case.
ARTICLE 25 - EMINENT DOMAIN
25.01 If the whole of the Demised Premises shall be taken by any public
or quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If 25% or less of the Floor Space of the
Demised Premises shall be so taken or conveyed, this Lease shall terminate only
in respect of the part so taken or conveyed as of the day possession shall be
taken by such authority and Rent shall be abated pro rata. If more than 25% of
the Floor Space of the Demised Premises shall be so taken or conveyed, this
Lease shall terminate only in respect of the part so taken or conveyed as of the
day possession shall be taken by such authority, Rent shall be abated pro rata,
but either party shall have the right to terminate this Lease upon notice given
to the other party within 30 days after such taking possession. If more than 25%
of the Floor Space of the Building shall be so taken or conveyed, Landlord may,
by notice to Tenant, terminate this Lease as of the day possession shall be
taken. If so much of the parking facilities shall be so taken or conveyed that
the number of parking spaces necessary, in Landlord's reasonable judgment, for
the continued operation of the Building shall not be available, Landlord shall,
by notice to Tenant given within fifteen (15) days of such taking, terminate
this Lease as of the day possession shall be taken. Notwithstanding anything to
the contrary contained herein, in the event of a taking of a substantial portion
of the Demised Premises which, in Tenant's reasonable judgment, renders the
Demised Premises unusable for the normal and efficient operation of Tenant's
business, then, at Tenant's election, this Lease shall terminate as of the date
of possession by the condemning authority, which election shall be made by
notice to Landlord within fifteen (15) days after Tenant receives notice of the
taking. If this Lease shall continue in effect as to any portion of the Demised
36
Premises not so taken or conveyed, the Rent shall be computed as of the day
possession shall be taken on the basis of the remaining Floor Space of the
Demised Premises. Except as specifically provided herein, in the event of any
such taking or conveyance there shall be no reduction in Rent. If this Lease
shall continue in effect, Landlord shall, at its expense, but shall be obligated
only to the extent of the net award or other compensation (after deducting all
expenses in connection with obtaining same) available to Landlord for the
improvements taken or conveyed (excluding any award or other compensation for
land or for the unexpired portion of the term of any Superior Lease), promptly
make all necessary alterations so as to constitute the remaining Building a
complete architectural and tenantable unit, except for the Tenant's Property,
and Tenant shall make all alterations or replacements to the Tenant's Property
and decorations in the Demised Premises. All awards and compensation for any
taking or conveyance, whether for the whole or a part of the Land or Building,
the Demised Premised or otherwise, shall be the property of Landlord, and Tenant
hereby assigns to Landlord all of Tenant's right, title and interest in and to
any and all such awards and compensation, including, without limitation, any
award or compensation for the value of the unexpired portion of the Term. Tenant
shall be entitled to claim, prove and receive in the condemnation proceeding
such award or compensation as may be allowed for the Tenant's Property and for
loss of business, good will, and depreciation or injury to and cost of removal
of the Tenant's Property, moving expenses and decorations, but only if such
award or compensation shall be made by the condemning authority in addition to,
and shall not result in a reduction of, the award or compensation made by it to
Landlord.
25.02. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the use and occupancy of the
Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue to be responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay the Rent
in full when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award or payment which represents
compensation for the use and occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and Landlord
shall receive so much thereof as represents compensation for the period after
the Expiration Date. All monies to be paid to Tenant as, or as part of, an award
or payment for temporary use and occupancy for a period beyond the date to which
the Rent has been paid shall be received, held and applied by the first Superior
Mortgagee (or if there is no Superior Mortgagee, by Landlord as a trust fund)
for payment of the Rent becoming due hereunder. In the event the temporary use
or occupancy of all or any part of the Demised Premises shall be taken during
the Term for a period of ten (10) or more consecutive months, such taking shall
be deemed a permanent taking covered by Section 25.01 hereof.
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ARTICLE 26 - SURRENDER
26.01. On the Expiration Date, or upon any earlier termination of this
Lease, Tenant shall quit and surrender the Demised Premises to Landlord
"broom-clean" and in good order, condition and repair, except for ordinary wear
and tear and such damage or destruction, condemnation as Landlord is required to
repair or restore under this Lease or other insured casualty, and Tenant shall
remove all of Tenant's Property therefrom except as otherwise expressly provided
in this Lease.
26.02. If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month at the sufferance of Landlord subject
to all of the provisions of this Lease, except that the monthly Fixed Rent shall
be one and one-half times the Fixed Rent in effect during the last month of the
Term for the first month of holdover only, and thereafter shall be twice the
Fixed Rent in effect during the last month of the Term.
26.03. No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 27 - CONDITIONS OF LIMITATION
27.01. This Lease is subject to the limitation that whenever Tenant or
any Guarantor (a) shall make an assignment for the benefit of creditors, or (b)
shall commence a voluntary case or have entered against it an order for relief
under any chapter of the Federal Bankruptcy Code (Title 11 of the United States
Code) or any similar order or decree under any federal or state law, now in
existence, or hereafter enacted having the same general purpose, and such order
or decree shall have not been stayed or vacated within 30 days after entry, or
(c) shall cause, suffer, permit or consent to the appointment of a receiver,
trustee, administrator, conservator, sequestrator, liquidator or similar
official in any federal, state or foreign judicial or nonjudicial proceeding, to
hold, administer and/or liquidate all or substantially all of its assets, and
such appointment shall not have been revoked, terminated, stayed or vacated and
such official discharged of his duties within 30 days of his appointment, then
Landlord, at any time after the occurrence of any such event, may give Tenant a
notice of intention to end the Term at the expiration of ten (10) days from the
date of service of such notice of intention, and upon the expiration of said ten
(10) day period, whether or not the Term shall theretofore have commenced, this
Lease shall terminate with the same effect as if that day were the expiration
date of this Lease, but Tenant shall remain liable for damages as provided in
Article 29.
27.02. This Lease is subject to the further limitations that: (a) if
Tenant shall default when due in the payment of any Rent, and such default shall
continue for ten (10) days after notice to Tenant specifying the nature of the
default, or (b) if Tenant shall, whether by action or inaction, be in default of
any of its obligations under this Lease (other than a default in the payment of
Rent) and such default shall continue and not be remedied within twenty (20)
days after Landlord shall have given to Tenant a notice
38
specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of twenty (20) days and the continuance of
which for the period required for cure will not subject Landlord or any Superior
Lessor to prosecution for a crime (as more particularly described in the last
sentence of Section 12.02) or termination of any Superior Lease or foreclosure
of any Superior Mortgage, if Tenant shall not, (i) within said twenty (20) day
period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (ii) duly commence within said twenty (20) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
default, and (iii) complete such remedy within a reasonable time after the date
of said notice by Landlord, or (c) if any event shall occur or any contingency
shall arise whereby this Lease would, by operation of law or otherwise, devolve
upon or pass to any person, firm or corporation other than Tenant, except as
expressly permitted by Article 11, or (d) if Tenant shall abandon the Demised
Premises, then in any of said cases Landlord may give to Tenant a notice of
intention to end the Term at the expiration of ten (10) days from the date of
the service of such notice of intention, and upon the expiration of said ten
(10) days, whether or not the Term shall theretofore have commenced, this Lease
shall terminate with the same effect as if that day were the expiration date of
this Lease, but Tenant shall remain iable for damages as provided in Article 29.
ARTICLE 28 - RE-ENTRY BY LANDLORD
28.01. If Tenant shall default in the payment of any Rent, and such
default shall continue for ten (10) days after notice to Tenant specifying the
nature of the default, or if this Lease shall terminate as provided in Article
27, Landlord or Landlord's agents and employees may, upon ten (10) days written
notice (which notice shall not be required if Tenant has been given a
termination notice, and this Lease shall have been terminated, pursuant to
Section 27.02 above) immediately or at any time thereafter re-enter the Demised
Premises, or any part thereof, either by summary dispossess proceedings or by
any suitable action or proceeding at law without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
Person therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises. The word "re-enter," as used herein, is not restricted to its
technical legal meaning. If this Lease is terminated under the provisions of
Article 27, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceedings or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall
thereupon pay to Landlord the Rent payable up to the time of such termination of
this Lease, or of such recovery of possession of the Demised Premises by
Landlord, as the case may be, and shall also pay to Landlord damages as provided
in Article 29.
28.02. In the event of a breach or threatened breach by Tenant of any of
its obligations under this Lease, Landlord shall also have the right of
injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies to which
Landlord may lawfully be entitled at any time and Landlord may invoke any
39
remedy allowed at law or in equity as if specific remedies were not provided
for herein.
28.03. If this Lease shall terminate under the provisions of Article 27,
or in the event of the termination of this Lease, or of re-entry, by or under
any summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Landlord shall be entitled to
retain all monies, if any, paid by Tenant to Landlord, whether as Advance Rent,
security or otherwise, but such monies shall be credited by Landlord against any
Rent due from Tenant at the time of such termination or re-entry or, at
Landlord's option, against any damages payable by Tenant under Article 29 or
pursuant to law, and any sums remaining, if any, after the payment to Landlord
of such Rent and damages shall be returned to Tenant within fifteen (15) days
after written request therefor.
ARTICLE 29 - DAMAGES
29.01. If this Lease is terminated under the provisions of Article 27,
or in the event of the termination of this Lease, or of re-entry, by or under
any summary dispossess or other proceeding or action or any provision of law by
reason of default hereunder on the part of Tenant, Tenant shall pay as
Additional Charges to Landlord, at the election of Landlord, either or any
combination of:
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be,
represents the then value (discounted to present value by using a
discount rate equivalent of the yield to maturity of the U.S. Treasury
Issue scheduled for maturity on or closest to the Expiration Date, as
published in the Wall Street Journal; In the event there is no market
activity in this issue, then Landlord shall choose a comparable Treasury
Bond, Note or Xxxx) of the excess, if any, of (i) the aggregate amount
of the Rent which would have been payable by Tenant (conclusively
presuming the average monthly Additional Charges to be the same as were
the average monthly Additional Charges payable for the year, or if less
than 365 days have then elapsed since the Commencement Date, the partial
year, immediately preceding such termination or re-entry) for the period
commencing with such earlier termination of this Lease or the date of
any such re-entry, as the case may be, and ending with the Expiration
Date, over (ii) the aggregate rental value of the Demised Premises for
the same period; or
(b) sums equal to the Fixed Rent and the Additional Charges which
would have been payable by Tenant had this Lease not so terminated, or
had Landlord not so re-entered the Demised Premises, payable upon the
due dates therefor specified herein following such termination or such
re-entry and until the Expiration Date, provided, however, that if
Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the
gross rents as and when received by Landlord from such reletting the
reasonable expenses incurred or paid by Landlord in terminating this
40
Lease or in re-entering the Demised Premises and in securing possession
thereof, as well as the reasonable expenses of reletting, including,
without limitation, altering and preparing the Demised Premises for new
tenants, brokers' commissions, legal fees, and all other reasonable
expenses properly chargeable against the Demised Premises and the rental
therefrom, it being understood that any such reletting may be for a
period shorter or longer than the period ending on the Expiration Date;
but in no event shall Tenant be entitled to receive any excess of such
net rents over the sums which would have been payable by Tenant to
Landlord had this Lease not so terminated, nor shall Tenant be entitled
in any suit for the collection of damages pursuant to this subdivision
(b) to a credit in respect of any rents from a reletting, except to the
extent that such net rents are actually received by Landlord with
respect to the period through the Expiration Date hereof (i.e. the date
upon which this Lease would have expired in the normal course but for
the earlier termination of this Lease). If the Demised Premises or any
part thereof should be relet in combination with other space, then
proper apportionment on a square foot basis shall be made of the rent
received from such reletting and of the reasonable expenses of
reletting; or
(c) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be,
represents the aggregate amount of the Rent which would have been
payable by Tenant (conclusively presuming the average monthly Additional
Charges to be the same as were the average monthly Additional Charges
payable for the year, or if less than 365 days have then elapsed since
the Commencement Date, the partial year, immediately preceding such
termination or re-entry) for the period commencing with such earlier
termination of this Lease or the date of any such re-entry, as the case
may be, and ending with the Expiration Date (discounted to present value
by using a discount rate equivalent of the yield to maturity of the U.S.
Treasury Issue scheduled for maturity on or closest to the Expiration
Date, as published in the Wall Street Journal; In the event there is no
market activity in this issue, then Landlord shall choose a comparable
Treasury Bond, Note or Xxxx); provided, however, that if Landlord shall
relet the Demised Premises during said period, Landlord shall credit
Tenant with the net rents received by Landlord from such reletting, such
net rents to be determined by first deducting from the gross rents as
and when received by Landlord from such reletting the reasonable
expenses incurred or paid by Landlord in terminating this Lease or in
re-entering the Demised Premises and in securing possession thereof, as
well as the reasonable expenses of reletting, including, without
limitation, altering and preparing the Demised Premises for new tenants,
brokers' commissions, legal fees, and all other reasonable expenses
properly chargeable against the Demised Premises and the rental
therefrom, it being understood that any such reletting may be for a
period shorter or longer than the period ending on the Expiration Date;
but in no event shall Landlord have to account to Tenant for any rents
in excess of the total sums which would have been payable by Tenant to
Landlord had this Lease not so terminated, nor shall Tenant be entitled
in any suit for the collection of damages pursuant to this subdivision
41
(c) to a credit in respect of any rents from a reletting, except to the
extent that such net rents are actually received by Landlord with
respect to the period through the Expiration Date (i.e. the date upon
which this Lease would have expired in the normal course but for the
earlier termination of this Lease). If the Demised Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received
from such reletting and of the reasonable expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure or refusal to relet the Demised Premises or any part
thereof, or if the Demised Premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such refusal or failure
to relet or failure to collect rent shall release or affect Tenant's liability
for damages or otherwise under this Lease.
29.02. Suit or suits for the recovery of such damages or, any
installments thereof, may be brought by Landlord at any time and from time to
time at its election, and nothing contained herein shall be deemed to require
Landlord to postpone suit until the date when the Term would have expired if it
had not been so terminated under the provisions of Article 27, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
damages by reason of the termination of this Lease or re-entry of the Demised
Premises for the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time, whether or
not such amount be greater than, equal to, or less than any of the sums referred
to in Section 29.01.
29.03. [INTENTIONALLY OMITTED]
29.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 29, but subject to the terms and provisions of
Section 3.05 hereof, if any Rent or damages payable hereunder by Tenant to
Landlord are not paid when due, the same shall bear interest at the Late Payment
Rate or the maximum rate permitted by law, whichever is less, from the due date
thereof until paid, and the amounts of such interest shall be Additional Charges
hereunder.
29.05. In addition to any remedies which Landlord may have under this
Lease, if there shall be a default hereunder by Tenant which shall not have been
remedied within the applicable grace period, Landlord shall not be obligated to
furnish to Tenant or the Demised Premises any HVAC services
42
outside of Business Hours or Business Days, or any extra or additional cleaning
services; and the discontinuance of any one or more such services shall be
without liability by Landlord to Tenant and shall not reduce, diminish or
otherwise affect any of Tenant's covenants and obligations under this Lease.
ARTICLE 30 - AFFIRMATIVE WAIVERS
30.01. Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present or
future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
30.02. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Area, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind, except
compulsory counterclaims as permitted by applicable Court Rule, in any action or
proceeding commenced by Landlord to recover possession of the Demised Premises.
ARTICLE 31 - NO WAIVERS
31.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. The receipt by Landlord of Fixed Rent or
Additional Charges with knowledge of breach by Tenant of any obligation of this
Lease shall not be deemed a waiver of such breach.
ARTICLE 32 - CURING A PARTY'S DEFAULTS
32.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease beyond applicable periods of grace, Landlord,
without thereby waiving such default, may (but shall not be obligated to)
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency, and in any other case only if such default shall not be
remedies within the applicable grace period provided for in Article 27 of this
Lease. Bills for any expenses actually and reasonably incurred by Landlord in
connection with any such performance by it for the account of Tenant, and bills
for all costs, expenses and disbursements of every kind and nature whatsoever,
including reasonable attorneys' fees and expenses, involved in collecting or
endeavoring to collect the Rent or any part thereof or
43
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, under or in connection with this Lease or pursuant to
law, including any such cost, expense and disbursement involved in instituting
and prosecuting summary proceedings or in recovering possession of the Demised
Premises after default by Tenant or upon the expiration of the Term or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Article at the Late Payment Rate or the maximum rate permitted by law,
whichever is less, may be sent by Landlord to Tenant monthly, or immediately, at
Landlord's option, and such amounts shall be due and payable within fifteen (15)
days of receipt of such bills.
32.02. If Landlord shall default in the performance of any of Landlord's
obligations under this Lease, Tenant, without thereby waiving such default, may
(but shall not be obligated to) perform the same for the account and at the
expense of Landlord, without notice in a case of emergency, and in any other
case only if such default continues after the expiration of fifteen (15) days
from the date Tenant gives Landlord notice of the default. Bills for any
expenses incurred by Tenant in connection with any such performance by it for
the account of Landlord, may be sent by Tenant to Landlord monthly, or
immediately, at Tenant's option, and such amounts shall be due and payable in
accordance with the terms of such bills, but in no event shall any such xxxx be
due and payable less than fifteen (15) days from the date of such bills. Nothing
contained in this Section 32.02 shall be construed to allow or permit Tenant to
deduct or offset or reduce any amounts due against any Rent due Landlord under
this Lease.
ARTICLE 33 - BROKER
33.01. Landlord and Tenant each represents to the other that it dealt
with no broker except the Broker in bringing about or consummating this Lease
and that each respectively had no conversations or negotiations with any broker
except the Broker concerning the leasing of the Demised Premises. Landlord and
Tenant agree to indemnify, defend and hold each other harmless against and from
any claims for any brokerage commissions and all costs, expenses and liabilities
in connection therewith, including, without limitation, reasonable attorneys'
fees and expenses, arising out of any conversations or negotiations had by the
indemnifying party with any broker other than the Broker. Landlord shall pay any
brokerage commissions due the Broker pursuant to a separate agreement between
Landlord and the Broker.
ARTICLE 34 - NOTICES
34.01. Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
party to the other, pursuant to this Lease or pursuant to any applicable Legal
Requirement, except for Rent invoices which may be sent by regular mail, shall
be in writing and shall be deemed to have been properly given, rendered or made
only if sent by hand delivered or overnight commercial delivery or sent by
United States registered or certified mail, return receipt requested, addressed
to the other party at the address hereinabove set forth, as to Tenant,
Attention: President and Chief Executive Officer (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to
44
the contrary, shall be the Building) as to Landlord, to the attention of General
Counsel with a concurrent notice to the attention of Controller, and shall be
deemed to have been given, rendered or made upon receipt or refusal. Either
party may, by notice as aforesaid, designate a different address or addresses
for notices, statements, demands, consents, approvals or other communications
intended for it. In addition, upon and to the extent requested by Landlord,
copies of notices shall be sent to the Superior Mortgagee.
ARTICLE 35 - ESTOPPEL CERTIFICATES
35.01. Each party shall, at any time and from time to time with
reasonable frequency, as requested by the other party, upon not less than ten
(10) days' prior notice, execute and deliver to the requesting party a statement
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications), certifying the dates to which the Fixed
Rent and Additional Charges have been paid, stating whether or not, to the best
knowledge of the party giving the statement, the requesting party is in default
in performance of any of its obligations under this Lease, and, if so,
specifying each such default of which the party giving the statement shall have
knowledge, and stating whether or not, to the best knowledge of the party giving
the statement, any event has occurred which with the giving of notice or passage
of time, or both, would constitute such a default of the requesting party, and,
if so, specifying each such event; any such statement delivered pursuant hereto
shall be deemed a representation and warranty to be relied upon by the party
requesting the certificate and by others with whom such party may be dealing,
regardless of independent investigation. Tenant also shall include in any such
statement such other information concerning this Lease as Landlord may
reasonably request.
ARTICLE 36 - ARBITRATION
36.01. Landlord may at any time request arbitration, and Tenant may at
any time when not in default in the payment of any Rent beyond any applicable
periods of grace (provided that Tenant shall prior to the end of such grace
period have paid in full all Rent then due and owing to Landlord), request
arbitration, of any matter in dispute but only where arbitration is expressly
provided for in this Lease. The party requesting arbitration shall do so by
giving notice to that effect to the other party, specifying in said notice the
nature of the dispute, and said dispute shall be determined in Newark, New
Jersey, by a single arbitrator, in accordance with the rules then obtaining of
the American Arbitration Association (or any organization which is the successor
thereto). The award in such arbitration may be enforced on the application of
either party by the order or judgment of a court of competent jurisdiction. The
fees and expenses of any arbitration shall be borne by the parties equally, but
each party shall bear the expense of its own attorneys and experts and the
additional expenses of presenting its own proof. If Tenant gives notice
requesting arbitration as provided in this Article, Tenant shall simultaneously
serve a duplicate of the notice on each Superior Mortgagee and Superior Lessor
whose name and address shall previously have
45
been furnished to Tenant at least fifteen days in advance of same, and such
Superior Mortgagees and Superior Lessor shall have the right to participate in
such arbitration.
ARTICLE 37 - MEMORANDUM OF LEASE
37.01. Tenant shall not record this Lease. However, at the request of
Landlord, Tenant shall promptly execute, acknowledge and deliver to Landlord a
memorandum of lease in respect of this Lease sufficient for recording. Such
memorandum shall not be deemed to change or otherwise affect any of the
obligations or provisions of this Lease. Whichever party records such memorandum
of Lease shall pay all recording costs and expenses, including any taxes that
are due upon such recording.
ARTICLE 38 - INTENTIONALLY DELETED
ARTICLE 39 - MISCELLANEOUS
39.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
39.02. No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by the party against whom enforcement of the change, modification,
waiver, release, discharge, termination or effectuation of abandonment is
sought.
39.03. If Tenant shall at any time request Landlord to sublet or let the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
39.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that (a) no violation
of the provisions of Article 11 shall operate to vest any rights in
46
any successor or assignee of Tenant and (b) the provisions of this Section 39.04
shall not be construed as modifying the conditions of limitation contained in
Article 27.
39.05. Except for Tenant's obligations to pay Rent, the time for
Landlord or Tenant, as the case may be, to perform any of its respective
obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any Unavoidable Delay. Except as
expressly provided to the contrary, the obligations of Tenant hereunder shall
not be affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, (a) because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease due to any of the matters
set forth in the first sentence of this Section 39.05, or (b) because of any
failure or defect in the supply, quality or character of electricity, water or
any other utility or service furnished to the Demised Premises for any reason
beyond Landlord's reasonable control.
39.06. Any liability for payments hereunder (including, without
limitation, Additional Charges and the refund thereof, if any) shall survive the
expiration of the Term or earlier termination of this Lease.
39.07. If Tenant shall request Landlord's consent and Landlord shall
fail or refuse to give such consent, Tenant shall not be entitled to any damages
for any withholding by Landlord of its consent; Tenant's sole remedy shall be an
action for specific performance or injunction, and such remedy shall be
available only in those cases where Landlord has expressly agreed in writing not
to unreasonably withhold or delay its consent or where as a matter of law
Landlord may not unreasonably withhold its consent.
39.08. INTENTIONALLY DELETED.
39.09. Tenant shall not exercise its rights under Article 15 or any
other provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing, labor disruption or dispute or
any unreasonable interference with the business of Landlord or any tenant or
occupant of the Building.
39.10. Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Demised Premises for which Landlord might be liable, (b) any
fire or other casualty in the Demised Premises, (c) any damage to or defect in
the Demised Premises, including the fixtures and equipment thereof, for the
repair of which Landlord might be responsible, and (d) any damage to or defect
in any part of the Building's sanitary, electrical, heating, ventilating,
air-conditioning, elevator or other systems located in or passing through the
Demised Premises or any part thereof.
39.11. This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. Tenant hereby irrevocably agrees that any
legal action or proceeding arising out of or relating to this Lease may be
brought in the Courts of the State of New Jersey, or the Federal District Court
for the District of New Jersey. By execution and delivery of this Lease, Tenant
hereby irrevocably accepts and submits generally and unconditionally
47
for itself and with respect to its properties, to the jurisdiction of any such
court in any such action or proceeding, and hereby waives in the case of any
such action or proceeding brought in the courts of the State of New Jersey, or
Federal District Court for the District of New Jersey, any defenses based on
jurisdiction, venue or forum non conveniens. If any provision of this Lease
shall be invalid or unenforceable, the remainder of this Lease shall not be
affected and shall be enforced to the extent permitted by law. The table of
contents, captions, headings and titles in this Lease are solely for convenience
of reference and shall not affect its interpretation. This Lease shall be
construed without regard to any presumption or other rule requiring construction
against the party causing this Lease to be drafted. If any words or phrases in
this Lease shall have been stricken out or otherwise eliminated, whether or not
any other words or phrases have been added, this Lease shall be construed as if
the words or phrases so stricken out or otherwise eliminated were never included
in this Lease and no implication or inference shall be drawn from the fact that
said words or phrases were so stricken out or otherwise eliminated. Each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall e deemed to include any other number and
any other gender as the context may require. In the event Landlord permits
Tenant to examine Landlord's books and records with respect to any Additional
Charge imposed under this Lease, such examination shall be conducted at Tenant's
sole cost and expense and shall be conditioned upon Tenant retaining an
independent accounting firm for such purposes which shall not be compensated on
any type of contingent fee basis with respect to such examination. Wherever in
this Lease or by law Landlord is authorized to charge or recover costs and
expenses for legal services or attorneys' fees, same shall include, without
limitation, the costs and expenses for in-house or staff legal counsel or
outside counsel at rates not to exceed the reasonable and customary charges for
any such services as would be imposed in an arms length third party agreement
for such services.
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39.12. Within thirty (30) days of Landlord's written request, Tenant
shall furnish to Landlord for distribution to Landlord's mortgagee or
prospective mortgagee or such mortgagee's or prospective mortgagee's loan
correspondent a copy of its then current audited (if available) financial
statement which shall be employed by such mortgagee or prospective mortgagee for
purposes of financing the Land and/or Building or otherwise for compliance with
the terms of any mortgage financing encumbering the Demised Premises and not
distributed otherwise without prior authorization of Tenant; provided however,
that if such financial statement is not a matter of public record, Tenant may
require of Landlord and such mortgagee or prospective mortgagee or loan
correspondent as a condition of providing such financial statement a
confidentiality agreement in form reasonably acceptable to Tenant and Landlord
and/or such mortgagee, prospective mortgagee and/or loan correspondent.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
XXXXX-PW TOWER B LIMITED PARTNERSHIP
("Landlord")
BY: XXXXX MOUNTAIN INDUSTRIES, INC.
("general partner")
BY: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
[Corporate Seal]
ICON INTERNATIONAL INC.
("Tenant")
BY: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
[Corporate Seal] Title: President
49
RIDER TO LEASE DATED NOVEMBER 3, 1995 BY AND BETWEEN XXXXX-PW TOWER B LIMITED
PARTNERSHIP, AS LANDLORD AND ICON INTERNATIONAL INC., AS TENANT.
--------------------------------------------------------------------------------
R1. If any of the provisions of this Rider shall conflict with any of
the provisions, printed or typewritten, of this Lease, such conflict shall
resolve in every instance in favor of the provisions of this Rider.
R2. Provided Tenant is not in default beyond any applicable cure period
under the Lease and provided Tenant has not assigned this Lease or is not
subletting more than fifty (50%) of the Demised Premises, Tenant expressly
acknowledging and agreeing that the option rights contained herein are personal
to the original named Tenant, Tenant shall have one option to extend the Term of
its lease of the Demised Premises, from the date upon which this Lease would
otherwise expire for one extended period of five (5) years (herein referred to
as the "Extended Period"), upon the following terms and conditions:
1. If Tenant elects to exercise said option, it shall do so by giving
notice of such election to Landlord on or before the date which is ten (10)
months before the beginning of the Extended Period for which the Term is to be
extended by the exercise of such option. Tenant agrees that it shall have
forever waived its right to exercise any such option if it shall fail for any
reason whatsoever to give such notice to Landlord by the time provided herein
for the giving of such notice, whether such failure is inadvertent or
intentional, time being of the essence as to the exercise of such option.
2. If Tenant elects to exercise said option, the Term shall be
automatically extended for the Extended Period covered by the option so
exercised without execution of an extension or renewal lease. Within ten (10)
days after request of either party following the effective exercise of any such
option, however, Landolord and Tenant shall execute, acknowledge and deliver to
each other duplicate originals of an instrument in recordable form confirming
that such option was effectively exercised.
3. The Extended Period shall be upon the same terms and conditions as
are in effect immediately preceding the commencement of such Extended Period;
provided, however, that Tenant shall have no right or option to extend the Term
for any period of time beyond the expiration of the Extended Period and,
provided further, that in the Extended Period the Fixed Rent shall be at Fair
Market Value ("FMV"). FMV shall be determined by mutual agreement of the
parties. If the parties are unable to agree on the FMV, the parties shall choose
a licensed Real Estate Appraiser who shall determine the FMV. The cost of said
Real Estate Appraiser shall be borne equally by the parties. If the parties are
unable to agree on a licensed Real Estate Appraiser, each party shall select one
Appraiser to appraise the FMV. If the difference between the two appraisals is
20% or less of the lower appraisal, then the FMV shall be the average of the two
appraisals. If the difference between the two appraisals is greater than 20% of
the lower appraisal, the two Appraisers shall select a third licensed Real
Estate Appraiser to appraise the FMV. The FMV shall in such case be the average
of the three appraisals. The cost of the third appraisal shall be borne equally
by the parties. Anything to the
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contrary contained herein notwithstanding, the Fixed Rent for such Extended
Period shall not be less than the Fixed Rent for the period immediately
preceding the Extended Period for which the Fixed Rent is being calculated.
4. Any termination, expiration, cancellation or surrender of this Lease
shall terminate any right or option for the Extended Period not yet exercised.
5. The option provided herein to extend the Term of the Lease may not be
severed from the Lease or separately sold, assigned or otherwise transferred.
R3. (A) Landlord agrees that during the first five (5) years of the Term
only, prior to entering into any new lease with a prospective Tenant for any
additional premises on the eighth (8th) floor of the Building (other than
extensions or renewals of existing leases), Landlord shall, provided Tenant is
not in default of this Lease beyond any applicable grace or cure periods, first
notify Tenant in writing of its intention to do so, which notice shall set forth
the rent, terms and other conditions upon which such lease is intended to be
consummated with such prospective Tenant ("Landlord's Notice"). Tenant shall
have a period of ten (10) days following the giving of Landlord's Notice to
notify Landlord, in writing, of its election to enter into a lease for such
additional premises as tenant upon the rent, terms and conditions set forth in
Landlord's Notice. If Tenant shall notify Landlord in writing of its election to
enter into such lease as tenant for the additional premises within the said ten
(10) day period, Landlord shall deliver and Tenant shall execute a modification
of this lease incorporating the rent, terms and conditions as set forth in
Landlord's Notice to Tenant with respect to the additional premises. Time is of
the essence with respect to Tenant's exercise of its right of first refusal.
(B) If Tenant shall fail to notify Landlord in writing of its election
to enter into a modification to its lease incorporating the additional premises,
within the ten (10) day period referred to in subsection (A) hereof, then the
right of first refusal granted to the tenant as set forth in subsection (A) of
this Section with respect to the additional premises referred to in Landlord's
notice, shall automatically terminate and come to and end.
(C) If Tenant shall not elect to lease the additional premises referred
to in Landlord's Notice within the ten (10) day period following Landlord's
Notice then, Landlord may thereafter deliver the lease for such additional
premises to the proposed tenant free of the restrictions herein stated;
provided, however, that Landlord agrees that it shall not materially reduce the
rent or otherwise materially change the business terms of the lease as offered
to Tenant so that they are more favorable to the proposed Tenant than the terms
offered to Tenant, without again being required to offer the same to Tenant
pursuant to the preceding provisions of this Rider paragraph R3.
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(D) This right of first refusal so granted to Tenant shall terminate and
become null and void upon the expiration or sooner termination of this Lease.
(E) This right of first refusal is subject and subordinate to any prior
rights of first refusal or first offer of any existing tenants of the Building
under existing leases.
R4. Parking: Tenant shall be entitled to three (3) reserved parking
spaces in the parking deck designated for the Building. Said parking spaces
shall be located on the first level of the parking deck and the location of same
shall be determined by Landlord. Tenant shall also be entitled to fifty (50)
parking spaces on a non-exclusive basis in the parking areas shared in common
with other tenants of the Building and Development. Said parking areas shall be
designated by Landlord. There shall be no additional charge to Tenant under this
Lease (other than those expressly included as part of the Operating Expenses)
for the parking provided under this Rider Paragraph R4.
R5. Gross Up: If the Building is not a least ninety-five (95%) percent
occupied during the Base Year or any subsequent Calendar Year, the Operating
Expenses and Real Estate Taxes for the Base Year and for any such subsequent
Calendar Year will be adjusted to reflect ninety-five (95%) percent occupancy of
the Building.
R6. Electricity: Notwithstanding anything to the contrary set forth in
Section 18.02 hereof, Tenant shall have the right, without Landlord's consent,
to use and connect to the Building's existing electric distribution system all
computers, printers, scanners, routers and telecommunications equipment,
photocopying and facsimile equipment and other optical and electronic and
electric powered equipment, all consistent with the Permitted Uses of the
Demised Premises, provided that the total rated power consumption of such
machines and equipment and Tenant's actual connected electrical load in the
Demised Premises (inclusive of power, lighting and Supplemental HVAC) shall not
exceed 8 xxxxx per usable square foot (inclusive of power, lighting and
Supplemental HVAC). Landlord shall not unreasonably withhold its consent to the
installation of additional risers in the Building in order to increase the xxxxx
per usable square foot available to the Demised Premises; provided, however that
all such work shall be performed by Landlord and the cost thereof shall be paid
by Tenant to Landlord not later than fifteen (15) days after written request
therefor.
Tenant has reviewed the electrical capacity available to the Demised Premises
and represents that its satisfied therewith. Landlord represents that 8 xxxxx
per usable square foot (inclusive of power, lighting and Supplemental HVAC) is
available to the Demised Premises.
Landlord represents to Tenant that the Building is served by two
underground circuits, as more particularly described in the correspondence from
PSE&G attached hereto as Exhibit "X".
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R7. UPS Generator: For use at the Demised Premises, Tenant shall have
the right to install a gas-fired emergency back-up (uninterrupted power supply)
generator (the "Generator") upon the following terms and conditions:
(a) Landlord hereby grants Tenant the right at Tenant's sole cost and
expense, to install the Generator on the roof of the Building or on the Land, as
determined by Landlord, in a location thereon as designated by Landlord. Tenant
agrees to provide Landlord with complete specifications regarding the dimensions
of such Generator, the materials to be used in its construction, the method of
its installation and the piping, wire, cabling and utilities required as a
result thereof. Tenant's plans and specifications shall be subject to Landlord's
reasonable approval.
(b) Tenant shall be responsible, at its sole cost and expense, and
throughout the Term, to maintain, operate (including utility costs), replace,
and repair the Generator.
(c) In regards to the Generator, Tenant shall comply with all Legal
Requirements (including, without limitation, acquisition of all necessary
permits) and all reasonable requirements of Landlord's insurer. Tenant shall
insure the Generator and pay any additional premiums of Landlord's insurer as a
result of the Generator installation or operation.
(d) All work required to construct and/or install the Generator, shall
be performed by Tenant at its sole cost and risk, it being understood and agreed
to by the parties hereto that the Tenant will have full responsibility for any
resulting damage to the Building, Land, and the surrounding improvements.
(e) Tenant shall and does hereby agree to indemnify, defend, and hold
harmless Landlord and its successors and assigns from any and all claims of
whatever nature made by any third party arising out of or in connection with the
installation and operation of the Generator.
(f) Tenant fully acknowledges that Landlord is granting Tenant the right
to use the Generator at Tenant's request and in reliance on Tenant's
representations that the installation and operation of the Generator will in no
way interfere with the operations and quiet enjoyment of Landlord's other
tenants in the Building and Development. In the event the operation of Tenant's
Generator is interfering with the operations or quiet enjoyment of Landlord's
other tenants, on written notice thereof from Landlord to Tenant, Tenant will
cease such interference with the operations or quiet enjoyment of Landlord's
other tenants.
(g) Upon the expiration or earlier termination of this Lease, Tenant
shall remove the Generator at its sole cost and expense, and in accordance with
the provisions of the Lease regarding removal of Tenant's Property.
(h) Tenant shall upon thirty (30) days written notice from Landlord to
Tenant, relocate the Generator to another location which Landlord shall
reasonably designate. Such relocation shall be at Landlord's sole cost and
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expense. Tenant shall not relocate the Generator for any other reason without
the prior written consent of Landlord.
R8. Landlord's Work:
(a) Landlord shall inform Tenant of the anticipated date the Demised
Premises shall be Ready for Occupancy and shall otherwise keep Tenant informed
of the progress of the Landlord's Work during the pendency thereof and shall
advise Tenant of any anticipated delays.
(b) Landlord shall use reasonable efforts to complete all Landlord's
Work no later than March 1996. If the Demised Premises are not Ready for
Occupancy by such date, then, commencing on the day Fixed Rent first becomes
payable under the Lease, Tenant shall be entitled to a one day abatement of
Fixed Rent for each day thereafter for which the Demised Premises shall not be
Ready for Occupancy; provided, however, that said March 1996 date shall be
extended by a day for each day of delay covered by Section 5.02 hereof.
R9. Tax Appeals:
(a) Decrease in Base Year Tax. If Real Estate Taxes in the Base Year are
reduced, including but not limited to reduction as the result of, any
application or proceeding brought by Landlord for reduction in the amount of
Real Estate Taxes payable with respect to the Base Year, and if, as a result of
such application or proceeding Real Estate Taxes attributable to the Base Year
shall be decreased, Landlord may promptly xxxx Tenant for any Tenant's Fraction
of Real Estate Taxes in accordance with Article 6 hereof, for any Calendar Year
reflecting such decrease in Real Estate Taxes in the Base Year. In no event
shall the Fixed Rent payable under this Lease be affected or changed as a result
of any such Real Estate Tax appeal, whether or not affecting the Base Year.
(b) Decrease in Taxes. If the Real Estate Taxes are reduced (other than
in the Base Year, which shall be governed by Rider Paragraph R9(a) above), for
which Tenant's Fraction of Real Estate Taxes have been paid by Tenant pursuant
to Article 6 of this Lease, such Tenant's Fraction of Real Estate Taxes shall be
recomputed on the basis of any such reduction and Landlord will, at its
election, either credit against the next accruing installments of Tenant's
Fraction of Real Estate Taxes due under this Lease after receipt by Landlord of
a tax refund any sums paid by Tenant in excess of the recomputed amounts, less a
sum equal to Tenant's Fraction of all costs, expenses, and fees, including, but
not limited to, attorneys' fees and appraisal fees incurred by Landlord in
connection with such application or proceeding, except to the extent such costs,
expenses and fees have already been included in Operating Expenses or Real
Estate Taxes (said resulting amount being the "Tenant's Tax Credit"), or
promptly refund to Tenant an amount equal to the Tenant's Tax Credit.
R10. Telecommunications Providers: Landlord agrees that it shall not
unreasonably withhold or delay its consent to permit access to the Building to
any reputable, nationally recognized telecommunications provider
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recommended to Landlord by Tenant which Tenant desires to use so that such
telecommunications provider may provide its services to Tenant and any other
tenant of the Building; provided, however, that (i) such telecommunications
provider shall agree to and shall execute and deliver to Landlord a License
Agreement in form and substance reasonably satisfactory to Landlord; (ii) such
telecommunications provider shall agree to pay to Landlord reasonable and
customary fees therefor; and (iii) the installation and subsequent provision of
such service to the Building shall not, in Landlord's sole and reasonable
judgment, interfere or cause damage to the Land, the Building, the Development
or the use and occupancy thereof by the tenants thereof. The terms and
provisions of this Rider Paragraph R10 shall be personal to the original named
Tenant and/or any Affiliate thereof.
R11. Management: Landlord shall operate and manage or cause to be
operated and managed the Building and the Common Areas and shall perform or
cause to be performed all obligations on the part of Landlord to be performed
under this Lease in a manner consistent with the present operation and
management of the Building and Common Areas and in keeping with the character
and tenants of the Building.
R12. Tenant's Work: Tenant shall have the right, upon written notice to
Landlord, to enter the Demised Premises prior to Landlord's delivery of the
Demised Premises Ready for Occupancy for the sole purpose of performing Tenant's
Work therein provided:
(i) Tenant first delivers a Certificate of insurance to Landlord as
required under this Lease;
(ii) Tenant's Work does not unreasonably interfere with Landlord's Work
or Landlord's workmen;
(iii) Tenant pays all costs of additional utilities and services
incurred as a result of Tenant's entry;
(iv) Tenant agrees to all reasonable rules and regulations set forth by
Landlord during such period;
(v) Tenant complies with all Legal Requirements applicable thereto; and
(vi) Tenant comply in all respects with the terms and provisions of
Section 39.09 of the Lease.
Landlord agrees that it shall cooperate with Tenant and its contractors
to coordinate and schedule the timing and performance of Landlord's Work and
Tenant's Work and provide to or for the benefit of Tenant access to appropriate
facilities and services, all in a manner reasonably acceptable to Landlord.
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R13. Attorneys' Fees: In the event either party brings an action to
enforce this Lease, or to collect Rent or other sums due under this Lease, or to
recover the possession of the Demised Premises, the prevailing party shall be
entitled to recover its reasonable attorney's fees.
R14. Consequential Damages: Notwithstanding anything to the contrary
contained in this Lease, neither Landlord nor Tenant shall be liable to the
other for consequential damages.
XXXXX-PW TOWER B LIMITED PARTNERSHIP
("Landlord")
BY: XXXXX MOUNTAIN INDUSTRIES, INC.
("general partner")
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx
Executive Vice President
ICON INTERNATIONAL INC.
("Tenant")
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
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