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EXHIBIT 10.8
LEASE AGREEMENT
BETWEEN
SHAV ASSOCIATES
AS LANDLORD
AND
PARADYNE CORPORATION,
AS TENANT
PREMISES:
000 XXXXXX XXXXX
XXX XXXX, XXX XXXXXX
0XX XXXXX
0XX XXXXX
DATED: OCTOBER 8, 1996
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TABLE OF CONTENTS
ARTICLE PAGE
------- ----
1 Demised Premises, Term, Rent.............................................. 1
2 Use....................................................................... 2
3 Preparation Of The Demised Premises....................................... 3
4 Occupancy Upon Completion Of Tenant's Work................................ 4
5 Additional Rent........................................................... 5
6 Subordination, Notice To Mortgagees ...................................... 10
7 Quiet Enjoyment .......................................................... 11
8 Assignment, Mortgaging, Subletting ....................................... 11
9 Compliance With Laws And Requirements Of Public Authorities .............. 13
10 Insurance ................................................................ 14
11 Rules And Regulation ..................................................... 16
12 Tenant's Changes ......................................................... 17
13 Tenants Property ......................................................... 19
14 Repairs And Maintenance .................................................. 21
15 Electricity .............................................................. 22
16 Heating, Ventilation And Air-Conditioning ................................ 24
17 Landlord's Other Services ................................................ 24
18 Access, Changes In Building Facilities, Name ............................. 27
19 Notice Of Accidents ...................................................... 28
20 Non-Liability And Indemnification ........................................ 28
21 Destruction Or Damage .................................................... 29
22 Eminent Domain ........................................................... 30
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23 Surrender ................................................................ 32
24 Conditions Of Ligation ................................................... 33
25 Re-Entry By Landlord ..................................................... 34
26 Damages .................................................................. 35
27 Waivers .................................................................. 37
28 No Other Waivers Or Modifications ........................................ 38
29 Curing Tenant's Defaults ................................................. 38
30 Broker ................................................................... 39
31 Notices .................................................................. 39
32 Estoppel Certificate ..................................................... 40
33 Arbitration .............................................................. 40
34 No Other Representations, Construction, Governing Law .................... 40
35 Security ................................................................. 41
36 Parties Bound ............................................................ 42
37 Consents ................................................................. 42
38 Mortgage Financing Tenant Cooperation .................................... 43
39 Environmental Compliance ................................................. 43
40 Holding Over ............................................................. 44
41 Certain Definitions And Constructions .................................... 45
42 Relocation Of Tenant ..................................................... 45
43 Option To Renew .......................................................... 45
44 Right Of First Refusal ................................................... 46
45 Satellite Dish ........................................................... 47
46 Waiver Of Distraint ...................................................... 49
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EXHIBIT A - Description of Land
EXHIBIT B - Floor Plan
EXHIBIT C - HVAC Specifications
EXHIBIT D - Cleaning and Maintenance Specifications
EXHIBIT E - Rules and Regulations
EXHIBIT F - Definitions
EXHIBIT G - Non-Disturbance Agreement
EXHIBIT H - Reserved Parking
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LEASE, dated October 8, 1996, between SHAV ASSOCIATES, a New Jersey General
Partnership, c/o Alfieri Property Management, having its principal office
located at 000 Xxxxxxxx Xxxxxx, P.O. Box 2911, Edison, New Jersey 08818-2911,
("Landlord"), and PARADYNE CORPORATION, a Delaware corporation, having its
principal office located at 0000 000xx Xxxxxx Xxxxx, X.X. Xxx 0000, Xxxxx,
Xxxxxxx 00000, ("Tenant").
WITNESSETH:
ARTICLE 1
DEMISED PREMISES, TERM, RENT
1.1 Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
the premises hereinafter described, in the building located at 000 Xxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxxxx, ("Building") on the parcel of land more
particularly described in Exhibit A ("Land"), for the term hereinafter stated,
for the rents hereinafter reserved and upon and subject to the conditions
(including limitations, restrictions and reservations) and covenants
hereinafter provided. Each party hereby expressly covenants and agrees to
observe and perform all of the conditions and covenants herein contained on its
part to be observed and performed.
1.2 The premises hereby leased to Tenant is the 1st and 2nd floors of the
Building, as shown on the floor plans annexed hereto as Exhibit B, having a
rentable area of 50,000 square feet measured outside wall to outside wall,
together with Tenant's share of the common area. Said premises, together with
all fixtures and equipment which at the commencement, or during the term of
this Lease are thereto attached (except items not deemed to be included therein
and removable by Tenant as provided in Article 13) constitute the "Demised
Premises." The Demised Premises shall be limited to the space that is located
from the ceiling tiles to the top of the floor slab except that any Tenant
supplied equipment placed above the ceiling tiles shall be considered part of
the Demised Premises.
1.3 The term of this Lease, for which the Demised Premises are hereby leased,
shall be sixty six (66) months and shall commence on November 1, 1996
("Commencement Date") and shall end at noon on April 30, 2002.
1.4 The rents reserved under this Lease, for the term thereof, shall be and
consist of:
PERIOD FIXED RENT ANNUAL RENT MONTHLY RENT
---------- ----------- ------------
Months 1 through 60 $ 16.25 $ 812,500.00 $ 67,708.33
Months 61 through 66 $ 19.00 $ 475,000.00 (6 mos.) $ 79,166.67
Fixed rent is calculated on 50,000 sq. ft. of rentable area and shall be
payable in equal monthly installments in advance on the first day of each and
every calendar month during the term of this Lease, (except Tenant shall pay,
upon execution and delivery of this Lease by Tenant, the sum of
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$67,708.33 to be applied against the first monthly installment or installments
of fixed rent becoming due under this Lease) and
(b) Additional rent consisting of all such other sums of money as
shall become due from and payable by Tenant to Landlord hereunder (for
default in payment of which Landlord shall have the same remedies as
for a default in payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
at such place, as Landlord may designate by written notice to Tenant, in lawful
money of the United States of America.
1.5 Tenant shall pay the fixed rent and additional rent herein reserved
promptly as and when the same shall become due and payable, without demand
therefor and without any abatement, deduction or setoff whatsoever except as
expressly provided in this Lease.
1.6 If the Commencement Date occurs on a day other than the first day of a
calendar month, the fixed rent for such calendar month shall be prorated and
the balance of the first month's fixed rent theretofore paid shall be credited
against the next monthly installment of fixed rent.
1.7 Late payments of any payment of rent, including monthly rent, which is not
received within five (5) days after it is due, will be subject to a late charge
equal to three percent (3%) of the unpaid payment. This amount is in
compensation of Landlord's additional cost of processing late payments. In
addition, any rent which is not paid when due, including monthly rent, will
accrue interest at a late rate charge of First Union Prime Rate plus two
percent (2%) per annum, as said rate is reasonably determined by Landlord from
published reports, (but in no event in an amount in excess of the maximum rate
allowed by applicable law) from the date on which it was due until the date on
which it is paid in full with accrued interest. If Tenant is deemed to be in
default beyond the lapse of any applicable cure or grace periods of the Lease
for failure to pay rent and Landlord has commenced any legal action, in
addition to the late charges and interest set forth above, Tenant shall be
charged with all attorney fees in connection with the collection of all sums
due Landlord. Notwithstanding the foregoing, provided Tenant is not in default
of this Lease, Tenant shall have one (1) grace period for each year of the
Lease term where Tenant will not be subject to late charge or interest for any
late payment of rent as set forth above.
ARTICLE 2
USE
2.1 Tenant shall use and occupy the Demised Premises for executive and general
offices for the transaction of Tenant's business and for no other purpose.
Notwithstanding the foregoing, Tenant may use the Demised Premises as lab space
provided Tenant's use as lab space does not put undue stress on the Building's
service systems. Any additional portion of the Demised Premises used for lab
space beyond that lab space provided for
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in the initial build-out shall be considered a Tenant Changes and must be
approved by Landlord in writing pursuant to Article 12.
2.2 The use of the Demised Premises for the purposes specified in Section 2.1
shall not include, and Tenant shall not use or permit the use of the Demised
Premises or any part thereof, for:
(a) A school of any kind other than for the training of Tenant's
employees or customers, incidental to Tenant's normal business
operations;
(b) An employment agency, or
(c) An office for any governmental or quasi governmental bureau,
department, agency, foreign or domestic, including any autonomous
governmental corporation or diplomatic or trade mission.
(d) Any telemarketing activities or other direct selling activities; or
(e) Any use, including executive and general office use, which results
in a density of a population of more than one person for every 250
square feet.
2.3 If any governmental license or permit, other than a Certificate of
Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof, and if failure to secure
such license or permit would in any way affect Landlord, Tenant, at its
expense, shall submit the same to inspection by Landlord. Tenant shall at all
times comply with the terms and conditions of each such license or permit.
2.4 Tenant shall not at any time use or occupy, or do or permit anything to be
done in the Demised Premises, in violation of the Certificate of Occupancy (or
other similar municipal ordinance) governing the use and occupation of the
Demised Premises or for the Building.
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.1 Tenant accepts the Demised Premises "AS IS" subject, however, to
latent defects. Landlord represents that as of the Commencement Date of this
Lease, the Building shall be in compliance with governmental requirements with
the exception of any Tenant's Work as defined below. The Demised Premises shall
be completed and prepared for Tenant's occupancy pursuant to a turn-key
installation in accordance with and under the terms and conditions of plans and
specifications prepared by Tenant as reasonably approved by Landlord ("Tenant's
Work"). The cost of all Tenant's Work subject to Section 3.2 hereof, shall be
borne by Tenant. Tenant represents that all plans and specifications in
connection with Tenant's Work shall be prepared by Tenant's architect which
shall comply with all applicable laws, rules and regulations. Landlord and its
affiliate, Xxxxxxx Co., Inc. ("Xxxxxxx") shall serve as general contractor and
shall competitively bid the subcontractor portion of Tenant's Work using three
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bona fide bids whenever possible to arrive at a fixed price lump sum contact
(the "Contract") between Tenant and Xxxxxxx. Landlord and Tenant acknowledge
that as of the date hereof, Xxxxxxx and Tenant have not entered into the
Contract. Until Xxxxxxx and Tenant enter into the Contract, Xxxxxxx shall
proceed with the construction of Tenant's Work on a time and material basis
with ten percent (10%) overhead and ten percent (10%) profit. Landlord
represents that Xxxxxxx is in the bidding process and shall present Tenant with
the proposed Contract on September 17, 1996. Landlord represents that Xxxxxxx
and Tenant represents that Tenant shall diligently proceed to agree upon the
terms and conditions and shall execute the Contract as soon as practicable. In
the event Xxxxxxx and Tenant are unable to agree upon all or some of the terms
and conditions and execute the Contract by September 21, 1996, Xxxxxxx shall
proceed with the completion of Tenant's Work on a time and material basis with
ten percent (10%) overhead and ten percent (10%) profit for all or any portion
of the Tenant's Work not agreed upon in the Contract.
3.2 Notwithstanding the terms and conditions of Section 3.1, Landlord agrees
at its sole cost to modify the first floor lobby and elevator cabs to a first
class condition using Landlord's building standards for Tri-Parkway Corporate
Park, such work to be completed immediately following AT&T Corp.'s occupancy of
the third and fourth floors of the Building. Landlord shall also remove the
existing improvements in the cafeteria area so as to return the space to office
shell condition. Landlord shall contribute up to $30,000.00 of the cost thereof
and Tenant shall pay the balance if any.
3.3 Xxxxxxx shall not be deemed Tenant's contractor pursuant to any provision
of this Lease which makes reference to Tenant or any of its employees, agents
or contractors.
ARTICLE 4
OCCUPANCY UPON COMPLETION OF TENANT'S WORK
4.1 The Demised Premises shall be ready for Tenant's occupancy on the earliest
date on which all of the following conditions have been met:
(a) A Certificate of Occupancy (temporary or final) has been issued by
the applicable governmental authorities, permitting Tenant's use of
the Demised Premises for the purposes for which the same have been
leased.
(b) The work contemplated in Section 3.1 shall have been substantially
completed, and same shall be so deemed notwithstanding the fact that
minor or insubstantial details of construction, mechanical adjustment,
or decoration or special finish work requested by Tenant, such as
cabinetry remain to be performed, the non-completion of which does not
materially interfere with Tenant's use of the Demised Premises.
(c) Reasonable means of access and facilities necessary to Tenant's
use and occupancy of the Demised Premises, including corridors,
elevators and stairways, and heating, ventilating, air conditioning,
sanitary, water, and electrical facilities, have been installed and
are in reasonably good operating order and available to Tenant.
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4.2 If and when Tenant shall take actual possession of the Demised Premises, it
shall be conclusively presumed that the same were in satisfactory condition
(accept for latent defects) as of the date of such taking of possession, unless
within ninety (90) days after such date Tenant shall give Landlord notice
specifying the respects in which the Demised Premises were not in satisfactory
condition.
4.3 Landlord agrees that Tenant shall be entitled to install furniture and
equipment up to one week prior to the day the Demised Premises are ready for
Tenant's Occupancy and Landlord shall so advise Tenant when it shall be
entitled to commence such installation. Tenant agrees that it shall not
interfere with the work of Landlord or Xxxxxxx, Inc. in readying the Demised
Premises for occupancy.
4.4 Notwithstanding anything contained in the foregoing, and in furtherance of
Article 1, Landlord and Tenant agree that the Commencement Date for the Demised
Premises shall be November 1, 1996 regardless of whether the Demised Premises
are ready for Tenant's occupancy.
ARTICLE 5
ADDITIONAL RENT
5.1 For the purpose of Sections 5.1 through 5.3.
(a) "Taxes" shall mean real estate taxes, special and extraordinary
assessments and governmental levies against the Land and Building of
which the Demised Premises (but excluding therefrom that portion of
the real estate taxes directly attributable to improvements made by
other tenants in the Building beyond Landlord's allowances) are a part
provided, however, if at any time during the term of this Lease the
method of taxation prevailing at the date of this Lease shall be
altered so that in lieu of, or as an addition to, or as a substitute
for any or all of the above there shall be assessed, levied or imposed
(i) a tax, assessment, levy, imposition or charge based on the income
or rents received therefrom whether or not wholly or partially as a
capital levy or otherwise; or (ii) a tax, assessment, levy, imposition
or charge measured by or based in whole or in part upon all or any
part of the Land and/or Building and imposed upon Landlord; or (iii) a
license fee measured by the rents; or (iv) any other tax, assessment,
levy, imposition, charge or license fee however described or imposed,
then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be
included in the definition of "Taxes." Tenant shall pay to Landlord
directly that portion of any real estate taxes directly attributable
to improvements made by Tenant beyond Landlord's allowances
(hereinafter referred to as "Tenant's Direct Tax Payments").
(b) "Base Taxes" shall mean the assessed valuation of the Land and
Building as finally determined following completion of construction
and issuance of an initial Certificate of Occupancy for any portion of
the Building (or such equivalent certification if Certificates of
Occupancy are not to be used), multiplied by the tax rate for the Tax
Year 1997. Base Taxes shall be calculated as if the Building were 100%
assessed and 95% occupied.
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(c) "Tax Year" shall mean each calendar year for which Taxes are
levied by any governmental authority.
(d) "Operational Year" shall mean each calendar year commencing with
calendar year 1998.
(e) "Tenant's Proportionate Share of Increase" shall mean 50%
multiplied by the increase in Taxes in any Operational Year in excess
of the Base Taxes. Tenant's Proportionate Share of Increase for the
first Operational Year shall be prorated to reflect the actual
occupancy by Tenant for said Operational Year.
(f) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase in Taxes for the projected Operational
Year divided by twelve (12) and payable monthly by Tenant to Landlord
as additional rent.
5.2 Commencing with the first Operational Year and thereafter, Tenant shall pay
to Landlord as additional rent for the then Operational Year, Tenant's
Projected Share of Increase in Taxes in equal monthly instruments.
5.3 After the expiration of each Operational Year, Landlord shall furnish to
Tenant a written statement of the Taxes incurred for such Operational Year as
well as Tenant's Proportionate Share of Increase, if any. If the statement
furnished by Landlord to Tenant pursuant to this Section at the end of the then
Operational Year shall indicate that Tenant's Projected Share of Increase
exceeded Tenant's Proportionate Share of Increase, Landlord shall either
forthwith pay the amount of excess directly to Tenant concurrently with the
statement or credit same against Tenant's next monthly installment of rent. If
such statement furnished by Landlord to Tenant shall indicate that the Tenant's
Proportionate Share of Increase exceeded Tenant's Projected Share of Increase
for the then Operational Year, Tenant shall forthwith pay the amount of such
excess to Landlord.
Commencing with the first Operational Year, Tenant shall pay to Landlord in
equal monthly installments together with its payment of fixed rent one-twelfth
(1/12) of Tenant's Direct Tax Payment.
5.4 As used in Sections 5.4 through 5.6:
(a) "Operating Expenses" shall mean any or all expenses incurred by
Landlord in connection with the operation of the Land and Building of
which the Demised Premises are a part, including all expenses incurred
as a result of Landlord's compliance with any of its obligations
hereunder other than Landlord's Work and such expenses shall include:
(i) salaries, wages, medical, surgical and general welfare benefits,
(including group life insurance) and pension payments of employees of
Landlord engaged in the operation and maintenance of the Building;
(ii) social security, unemployment, and payroll taxes, workers'
compensation, disability coverage, uniforms, and dry cleaning for the
employees referred to in Subsection (i); (iii) the cost for the
Building and common areas of all charges for oil, gas, electricity
(including, but not limited to, fuel cost adjustments), steam, heat,
ventilation, air-conditioning, heating, and water including any taxes
on any such utilities, but excluding from Operating Expenses the
Landlord's cost, including taxes thereon, of electric energy other
than
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for heating and air-conditioning furnished to the Demised Premises (which
electric energy so furnished shall be paid for by Tenant pursuant to the
provisions of Article 15 hereof); (iv) the cost of all premiums and charges for
the following insurances rent, casualty, liability, fidelity and war risk (if
obtainable from the United States Government); (v) the cost of all building and
cleaning supplies for the common areas of the Building and charges for
telephone for the Building; (vi) the cost of all charges for management, (which
shall not exceed in any year four percent (4%) of gross revenues) window
cleaning, securing services, if any, and janitorial services, and any
independent contractor performing work included within the definition of
operating expenses; (vii) legal and accounting services and other professional
fees and disbursements incurred in connection with the operation and management
of the Land and Building (other than as related to new leases, enforcing
Landlord's rights under existing leases, or sales of the Building); (viii)
general maintenance of the Building and the cost of maintaining and replacing
the landscaping, (ix) maintenance of the common area; and (x) the cost of
capital expenditures, including the purchase of any item of capital equipment
or the leasing of capital equipment which have the effect of reducing the
expenses which would otherwise be included in Operating Expenses, which costs
shall be included in Operating Expenses for the Operational Year in which the
costs are incurred and subsequent Operational Years on a straight-line basis,
to the extent that such items are amortized over such period of time as
Landlord reasonably estimates, with an interest factor equal to the interest
rate at the time of Landlord's having made said expenditure.
If during all or part of the Base Year or any Operational Year, Landlord shall
not furnish any particular item(s) of work or service (which would otherwise
constitute an Operating Expense hereunder) to portions of the Building due to
the fact that (i) such portions are not occupied or leased; (ii) such items of
work or service is not required or desired by the tenant of such portion; (iii)
such tenant is itself obtaining and providing such item of work or service; or
(iv) for other reasons, then, for the purposes of computing Operating Expenses,
the amount for such item and for such period shall be deemed to be increased by
an amount equal to the additional costs and expenses which would reasonably
have been incurred during such period by Landlord if it had at its own expense
furnished such item of work or services to such portion of the Building or such
tenant.
Notwithstanding the foregoing, the following costs and expenses shall not be
included in Operating Expenses:
(1) Salaries or benefits for Landlord's executives above the
grade of building manager, and of any employee to the extent
the employee's time is not devoted to the Building;
(2) Amounts received by Landlord through proceeds of
insurance except to the extent they are compensation for sums
previously included in Operating Expenses hereunder;
(3) Cost of repairs or replacements incurred by reason of
fire or other casualty or condemnation to the extent Landlord
is compared therefor;
(4) Advertising and promotional expenditures;
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(5) Costs incurred in performing work or furnishing services for any
tenant (including Tenant), whether at such tenant's or Landlord's
expense, to the extent that such work or service is in excess of any
work or service that Landlord is obligated to furnish to tenant at
Landlord's expense;
(6) Depreciation, except as provided above;
(7) Brokerage commissions;
(8) Taxes (as hereinbefore defined);
(9) The cost of electricity (for other than heating and
air-conditioning) furnished to the Demised Premises or any other space
leased to tenants as reasonably estimated by Landlord;
(10) Refinancing costs and mortgage interest and amortization payments;
(11) Costs of improving, altering, constructing or redecorating any
space leased by tenants of the Building;
(12) Costs, expenses or expenditures relating to the duties,
liabilities or obligations of other tenants in the Building;
(13) Principle and interest payments on mortgage or deed of trust;
(14) Legal and auditing expenses incurred in connection with disputes
or negotiations with tenants or potential tenants;
(15) Expenses or charges under warranties or guarantees to the extent
actually recovered by Landlord;
(16) Rent under a ground or prime lease;
(17) Costs, expenses or expenditures relating to the duties,
liabilities or obligations of other tenants in the Building;
(18) Costs incurred by Landlord arising out of its failure to perform
or breach of any of its covenants, agreements, representations,
warranties, guarantees or indemnities made under this Lease;
(19) Any amounts paid to a person, firm, corporation, or other entity
row to Landlord which is in excess of the amount charged by
unaffiliated parties for goods or services in comparable office space
in the market;
(20) Any compensation paid to clerks, attendants or other persons in
commercial concessions or parking facility operated by Landlord; and
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(21) Landlord's general corporate overhead and general
administrative expenses.
(b) "Operational Year" shall mean each calendar year commencing with
calendar year 1998.
(c) "Base Year" shall mean calendar year 1997 and for purposes of Base
Year expenses it shall be assumed that the Building is 100% occupied.
(d) "Tenant's Proportionate Share of Increase" shall mean 50%
multiplied by the increase in Operating Expenses for the Operational
Year over Operating Expenses for the Base Year. For purposes hereof,
the Tenant's Proportionate Share of Increase has been computed based
upon a total square footage of the Building equal to 100,000 square
feet, and a total square footage of the Demised Premises equal to
50,000 square feet. Landlord agrees that it shall not include as part
of Operating Expenses in any Operational Year any line item that was
not included in the Base Year Operating Expenses.
(e) "Tenant's Projected Share of Increase" shall mean Tenant's
Proportionate Share of Increase for the projected Operational Year
divided by twelve (12) and payable monthly by Tenant to Landlord as
additional rent.
5.5 Commencing with the first Operational Year after Landlord shall be entitled
to receive Tenant's Proportionate Share of Increase, Tenant shall pay to
Landlord as additional rent for the then Operational Year, Tenant's Projected
Share of Increase.
5.6 After the expiration of the first Operational Year and for each Operational
Year thereafter, Landlord shall furnish to Tenant a written detailed statement
of the Operating Expenses (certified to be true and correct by Landlord)
incurred for such Operational Year which statement shall set forth Tenant's
Proportionate Share of Increase, if any. If the statement furnished by Landlord
to Tenant, pursuant to this Section, at the end of the then Operational Year
shall indicate that Tenant's Projected Share of Increase exceeded Tenant's
Proportionate Share of Increase, Landlord shall either forthwith pay the amount
of excess directly to Tenant concurrently with the statement or credit same
against Tenant's next monthly installment of rent. If such statement furnished
by Landlord to Tenant hereunder shall indicate that the Tenant's Proportionate
Share of Increase exceeded Tenant's Projected Share of Increase for the then
Operational Year, Tenant shall forthwith pay the amount of such excess to
Landlord.
5.7 Every statement given by Landlord pursuant to Sections 5.3 and 5.6 shall be
conclusive and binding upon Tenant unless (i) within ninety (90) days after the
receipt of such statement Tenant shall notify Landlord that it disputes the
correctness of the statement, specifying the particular respects in which the
statement is claimed to be incorrect; and (ii) if such dispute shall not have
been settled by agreement, shall submit the dispute to judicial proceedings
within one hundred and twenty (120) days after receipt of the statement. Within
such 90 day period Tenant shall have the right to review, examine and audit
Landlord's books and records for the applicable calendar year. Tenant agrees
that it and its representatives shall conduct a review with complete
confidentiality and shall enter into a reasonable confidentiality agreement with
landlord respecting the review, examination and audit. Pending the
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determination of such dispute by agreement or judicial proceedings as aforesaid,
Tenant shall, within thirty (30) days after receipt of such statement, pay
additional rent in accordance with Landlord's statement and such payment shall
be without prejudice to Tenant's position. If the dispute shall be determined in
Tenant's favor, Landlord shall forthwith pay Tenant the amount of Tenant's
overpayment of rents resulting from compliance with Landlord's statement. If
after judicial proceeding, it is determined that Landlord's Operating Statements
vary by more than 5%, then Landlord shall reimburse Tenant for Tenant's
reasonable costs for payment of an auditor or accountant. If the variance proves
less than 3% greater than Landlord's records, Tenant shall reimburse Landlord
for Landlord's reasonable costs for payment of an auditor or accountant.
Otherwise each party shall pay their respective costs.
ARTICLE 6
SUBORDINATION, NOTICE TO MORTGAGEES
6.1 So long as a satisfactory Nondisturbance Agreement has been obtained on
Tenant's behalf, this Lease, and all rights of Tenant hereunder are and shall be
subject and subordinate in all respects to all mortgages which may now or
hereafter affect the Land and/or the Building and/or any of such leases, whether
or not such mortgages shall also cover other lands and/or buildings, to each and
every advance made or hereafter to be made under such mortgages, and to all
renewals, modifications, replacements, and extensions of such mortgages and
spreaders and consolidations of such mortgages. This Section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver an
instrument that Landlord, or the holder of any such mortgage or any of their
respective successors in interest may reasonably request to evidence such
subordination. The mortgages to which this Lease is, at the time referred to,
subject and subordinate are hereinafter sometimes called "superior mortgages,"
and the holder of a superior mortgage or its successor in interest at the time
referred to is sometimes hereinafter called a "superior mortgagee."
6.2 Landlord shall make a good faith effort to obtain from the existing or
future Mortgagee, a Subordination, Non-Disturbance and Attornment Agreement (the
"Non-Disturbance Agreement") in favor of Tenant utilizing Mortgagee's standard
form. A sample Non-Disturbance Agreement form is attached as Exhibit G. Landlord
agrees, upon execution of this Lease, to promptly obtain Mortgagee's approval to
execute a Non-Disturbance Agreement. If within thirty (30) days or agreed upon
extended period from the execution of this Lease, Landlord is unable to obtain
such approval, then Tenant may, upon written notice to Landlord: (i) waive its
right to a Non-Disturbance Agreement or (ii) cancel this Lease. If Tenant takes
no action, Tenant shall be deemed to have waived its right to such
Non-Disturbance Agreement. If Tenant fails to accept the Non-Disturbance
Agreement as descried in Exhibit G attached, it shall be considered that
Landlord has satisfied its requirement. As to any future mortgagee, Tenant's
agreement to subordinate under Section 6.1 is conditioned upon its receipt of a
non-disturbance agreement in accordance who Section 6.2. Such future
non-disturbance agreement shall contain such terms and conditions as are
generally required by an institutional lender and as reasonably requested by a
tenant occupying 50,000 rentable square feet in a 100,000 rentable square foot
office building.
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ARTICLE 7
QUIET ENJOYMENT
7.1 So long as Tenant pays all of the fixed rent and additional rent due
hereunder and performs all of Tenant's other obligations hereunder, Tenant shall
peaceably and quietly have, hold, and enjoy the Demised Premises subject,
nevertheless, to the obligations of this Lease and, as provided in Article 6, to
the superior mortgages.
ARTICLE 8
ASSIGNMENT, MORTGAGING, SUBLETTING
8.1 Neither this Lease, nor the term and estate hereby granted, nor any part
hereof or thereof, nor the interest of Tenant in any sublease, or the rentals
thereunder, shall be assigned, mortgaged, pledged, encumbered or otherwise
transferred by Tenant, and neither the Demised Premises, nor any part thereof
shall be encumbered in any manner by reason of any act or omission on the part
of Tenant or anyone claiming under or through Tenant or shall be sublet, or
offered or advertised for subletting, or be used or occupied or permitted to be
used or occupied or utilized for desk space or for mailing privileges, by anyone
other than Tenant or for any purpose other than as permitted by this Lease,
without the prior written consent of Landlord in every case, except as expressly
otherwise provided in this Article. Landlord agrees that its consent shall not
be unreasonably withheld or delayed.
8.2 If this Lease be assigned, whether or not in violation of the provisions of
this Lease, Landlord may collect rent from the assignee. If the Demised Premises
or any part thereof be sublet or be used or occupied by anybody other than
Tenant, whether or not in violation of this Lease, Landlord may, after default
by Tenant and expiration of Tenant's time to cure such default, collect rent
from the undertenant or occupant. In either event, Landlord may apply the net
amount collected to the rents herein reserved, but no such assignment,
underletting, occupancy or collection shall be deemed a waiver of any of the
provisions of Section 8.1, or the acceptance of the assignee, undertenant or
occupants as Tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease. The consent by Landlord to
assignment, mortgaging, underletting or use or occupancy by others shall not in
any wise be considered to relieve Tenant from obtaining the express written
consent of Landlord to any other or further assignment, mortgaging or
underletting or use or occupancy by others not expressly permitted by this
Article.
8.3 The following provisions shall govern in connection with the subletting of
all or a portion of the Demised Premises:
(a) Tenant shall submit in writing to Landlord (i) the name of the
proposed subtenant; (ii) the nature and character of the proposed
subtenant's business, and the intended use to be made of the Demised
Premises by the proposed subtenant; (iii) the terms and conditions of
the proposed sublease; and (iv) such reasonable financial information
as Landlord may request regarding the proposed subtenant.
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(b) Within ten (10) business days of Landlord's receipt of the
information described in (a) above, Landlord shall inform Tenant
whether it gives or withholds its consent to such subletting. If
Landlord takes no action within such ten business day period, Tenant
shall give Landlord written notice and if Landlord takes no action
within two (2) business days of such notice from Tenant, Landlord shall
be deemed to have approved the sublease.
(c) In connection with any subletting, Tenant shall not openly offer or
advertise the Demised Premises, or any part thereof, to any other
tenant in the Building at a rental rate less than the current rental
rate for office buildings in the surrounding area.
8.4 Tenant shall remain fully liable for the performance of all Tenant's
obligations hereunder notwithstanding any subletting provided for herein (except
to Landlord), and without limiting the generality of the foregoing, shall remain
fully responsible and liable to Landlord for all acts and omissions of any
subtenant or anyone claiming under or through any subtenant which shall be in
violation of any of the obligations of this Lease and any such violation shall
be deemed to be a violation by Tenant.
8.5 Tenant shall not, without the prior written consent of Landlord, assign this
Lease, and the provisions of Section 8.3 with respect to subletting shall
equally apply to any assignment of this Lease. Tenant herein named, or any
immediate or remote successor in interest of Tenant herein named, shall remain
liable jointly and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Tenants obligations hereunder.
8.6 Notwithstanding anything to the contrary contained in this Article with
respect to assignment or subletting, Landlord's consent to any assignment and/or
subletting (i) to any parent, affiliate or wholly-owned subsidiary of Tenant (as
defined in Rule 240.12b-2 under the Securities Exchange Act of 1934) shall not
be required or (ii) to any corporation or other entity which succeeds to all or
substantially all of the assets and business of Tenant shall not be required,
but Tenant shall give located Landlord written notice thereof.
8.7 Tenant further agrees that it shall not place any signs on the windows bed
in the Demised Premises indicating that all or any portion of the demised
Premises are available for subleasing or assignment.
8.8 If the consideration payable by any assignee or the rents payable under any
sublease are greater than the Fixed Rent, Additional Rent and other charges
payable by Tenant hereunder, after Tenant has recovered its reasonable costs
associated with such subletting or assignment including brokerage fees, the cost
of any leasehold improvements paid by Tenant (other than the initial fit-out)
and any other actual reasonable and necessary costs incurred by Tenant in
connection with such subletting or assignment, Tenant shall pay fifty percent
(50%) of such excess to Landlord.
8.9 Landlord acknowledges that the Demised Premises may be occupied by a parent,
subsidiary or affiliate of Tenant ("Tenant Affiliate") and their employees
and that such occupancy of the Demised Premises shall not be considered an
assignment or sublease. Any of Landlord's representations, warranties,
covenants, agreements, guarantees and indemnities made
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for the benefit of Tenant or any rights or privileges granted by Landlord to
Tenant shall also inure to the benefit of such Tenant Affiliate.
ARTICLE 9
COMPLIANCE WITH LAWS AND REQUIREMENTS
OF PUBLIC AUTHORITIES
9.1 Tenant shall give prompt notice to Landlord of any notice it receives of the
violation of any law or requirement of public authority, and at its expense
shall comply with all laws and requirements of public authorities which shall
with respect to the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance, impose any violation, order or duty on Landlord or
Tenant, arising from (i) Tenant's use of the Demised Premises; (ii) the manner
of conduct of Tenant's business or operation of its installation, equipment or
other property therein; (ii) any cause or condition created by or at the
instance of Tenant, other than by Landlord's performance of any work for or on
behalf of Tenant; or (iv) the breach of any of Tenant's obligations hereunder.
Furthermore, Tenant need not comply with any such law or requirement of public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 9.2.
Nothing contained herein shall be construed to require Tenant to make structural
alterations to the Building except to the extent that same are required by
reason of Tenant's specific use (other than general office).
9.2 Tenant may, at its expense (and if necessary, in the name of but without
expense to Landlord) contest, by appropriate proceedings prosecuted diligently
and in good faith, the validity, or applicability to the Demised Premises, of
any law or requirement of public authority, and Landlord shall cooperate with
Tenant in such proceedings provided that:
(a) Tenant shall defend, indemnify, and hold harmless Landlord against
all liability, loss or damage which Landlord shall suffer by reason of
such non-compliance or contest, including reasonable attorney's fees
and other expenses reasonably incurred by Landlord;
(b) Such non-compliance or contest shall not constitute or result in
any violation of any superior mortgage, or, if such superior mortgage
shall permit such non-compliance or contest on condition of the taking
of action or furnishing of security by Landlord, such action shall be
taken and such security shall be furnished at the expense of Tenant;
and
(c) Tenant shall keep Landlord advised as to the status of such
proceedings.
9.3 After Tenant takes occupancy of the Demised Premises, Landlord agrees that
in the event there is an occurrence of governmental non-compliance regarding the
Building (excluding the Demised Premises) or the common areas throughout the
term of the Lease, Landlord shall be responsible, at its sole expense, to remedy
any such defect or non-compliance
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unless such non-compliance is a result of actions of Tenant as described in
Section 9.1. After Tenant takes occupancy of the Demised Premises, Tenant shall
be responsible for governmental compliance in the Demised Premises.
9.4 As of the day Tenant takes occupancy of the Demised Premises, Landlord
states that the Land, the Building and the Demised Premises shall comply with
all laws, rules and regulations and requirements of public authorities including
Title III of the Americans with Disabilities Act (collectively "Laws"), as the
Laws apply to existing structures constituting commercial facilities. If
Landlord's affiliate, X. Xxxxxxx Co., Inc. is performing Tenant's Work or any
other work in the Building, Landlord shall ensure Tenant's Work and any other
work performed by Landlord complies with any applicable Laws as it relates to
Tenant's Work in making the Demised Premises ready for occupancy. The foregoing
is expressly conditioned upon Tenant's representation that all Tenant's Plans
shall comply with the all applicable Laws as set forth in Article 3.1. If X.
Xxxxxxx Co., Inc. is not performing any portion of Tenant's Work or any other
work performed in the Building by or on behalf of Tenant, Tenant shall ensure
Tenant's Work or any other work performed by or on behalf of Tenant complies
with any applicable Laws. If, after Tenant takes occupancy of the Demised
Premises, further changes to the Building or the Demised Premises are required
under the Laws by virtue of the Lease and/or Tenant's specific use and
occupancy, such changes shall be Tenant's responsibility. If, after the Demised
Premises are ready for occupancy in accordance with Article 4, the Laws require
further changes to the Building or the Demised Premises when occasioned by
Landlord or any other tenant, then such changes shall not be Tenant's
responsibility. Landlord and Tenant shall indemnify each other for actual
damages suffered out of any non-compliance with the Laws by the other party as
aforesaid.
ARTICLE 10
INSURANCE
10.1 Tenant shall not violate, or permit the violation of, any condition imposed
by the all-risk casualty policy issued for the Building and shall not do
anything, or permit anything to be kept, in the Demised Premises which would
increase the fire or other casualty insurance rate on the Building or the
property therein over the rate which would otherwise then be in effect, (unless
Tenant pays the resulting increased amount of premium as provided in Section
10.2) or which would result in insurance companies of good standing refusing to
insure the Building or any of such property in amounts and at normal rates
reasonably satisfactory to Landlord. However, Tenant shall not be subject to any
liability or obligation under this Article by reason of the proper use of the
Demised Premises for the purposes permitted by Article 2.
10.2 If, by reason of any act or omission on the part of Tenant, the rate of
fire insurance with extended all-risk coverage on the Building or equipment or
other property of Landlord or other tenants shall be higher than it otherwise
would be, Tenant shall reimburse Landlord, on demand, for that part of the
premiums for fire insurance and extended all-risk coverage paid by Landlord
because of such act or omission on the part of Tenant, which sum shall be deemed
to be additional rent and collectible as such.
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10.3 In the event that any dispute should arise between Landlord and Tenant
concerning insurance rates, a schedule or "make up" of rates for the Building or
the Demised Premises, as the case may be, issued by the Fire Insurance Rating
Organization of New Jersey or other similar body making rates for fire insurance
and extended coverage for the premises concerned, shall be presumptive evidence
of the facts therein stated and of the several items and charges in the fire
insurance rates with extended coverage then applicable to such premises.
10.4 Tenant shall obtain and keep in full force and effect during the term of
this Lease, at its own cost and expense, Comprehensive General Liability
Insurance, such insurance to afford protection in an amount of not less than
$1,000,000 for injury or death to any one person, $3,000,000 for injury or death
arising out of any one occurrence, and $1,000,000 for damage to property,
protecting and naming the Landlord and the Tenant as insured against any and all
claims for personal injury, death or property damage occurring in, upon,
adjacent, or connected with the Demised Premises and any part thereof. Tenant
shall pay all premiums and charges therefor and upon failure to do so Landlord
may, but shall not be obligated to, make payments, and in such latter event the
Tenant agrees to pay the amount thereof to Landlord on demand and such sum shall
be deemed to be additional rent, and in each instance collectible on the first
day of any month following the date of notice to Tenant in the same manner as
though it were rent originally reserved hereunder, together with interest
thereon at the rate of three points in excess of Prime Rate of the First Union.
Tenant will use its best efforts to include in such Comprehensive General
Liability policy a provision to the effect that same will be non-cancelable,
except upon reasonable advance written notice to Landlord. The original
insurance policies or appropriate certificates shall be deposited with Landlord
together with any renewals, replacements or endorsements to the end that said
insurance shall be in full force and effect for the benefit of the Landlord
during the term of this Lease. In the event Tenant shall fail to procure and
place such insurance, the Landlord may, but shall not be obligated to, procure
and place same, in which event the amount of the premium paid shall be refunded
by Tenant to Landlord upon demand and shall in each instance be collectible on
the first day of the month or any subsequent month following the date of payment
by Landlord, in the same manner as though said sums were additional rent
reserved hereunder together with interest thereon at the rate of three points in
excess of the Prime Rate of the First Union.
10.5 Landlord and Tenant agree to use their best efforts to include in each of
its insurance policies a waiver of the insurer's right of subrogation against
the other party or if such waiver shall be unobtainable or unenforceable (a) an
express agreement that such policy shall not be invalidated if the insured
waives or has waived before the casualty, the right of recovery against any
party responsible for a casualty covered by the policy or (b) any other form of
permission for the release of the other party. If such waiver, agreement, or
permission shall not be or shall cease to be obtainable without additional
charge, or at all, the insured party shall so notify the other party after
learning thereof. In such a case, if the other party shall agree in writing to
pay the insurer's additional charge therefor, such waiver agreement or
permission shall, if obtainable, be included in the policy.
10.6 Each party hereby releases the other party with respect to any claim
(including a claim for negligence) which it might otherwise have against the
other party for loss, damage, or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this Lease to the extent to which it is insured under a
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policy or policies containing a waiver of subrogation or permission to release
liability or naming the other party as an additional insured, as provided in
Sections 10.4 and 10.5. If notwithstanding the recovery of insurance proceeds by
either party for loss, damage or destruction of its property (or rental value or
business interruption) the other party is liable to the first party with respect
thereto or is obligated under this Lease to make replacement, repair, or
restoration or payment, then provided that the first party's right of full
recovery under its insurance policies is not thereby prejudiced or otherwise
adversely affected, the amount of the net proceeds of the first party's
insurance against such loss, damage or destruction shall be offset against the
second party's liability to the first party thereof, or shall be made available
to the second party to pay for replacement, repair, or restoration, as the case
may be.
10.7 The waiver of subrogation or permission for release referred to in Section
10.5 shall extend to the agents of each party and their employees and, in the
case of Tenant, shall also extend to all other persons and entities occupying,
using or visiting the Demised Premises in accordance with the terms of this
Lease, but only if and to the extent that such waiver or permission can be
obtained without additional charge (unless such party shall pay such charge).
The releases provided for in Section 10.6 shall likewise extend to such agents,
employees and other persons and entities, if and to the extent that such waiver
or permission is effective as to them. Nothing contained in Section 10.6 shall
be deemed to relieve either party of any duty imposed elsewhere in this Lease to
repair, restore or rebuild or to nullify any abatement of rents provided for
elsewhere in this Lease. Except as otherwise provided in Section 10.4, nothing
contained in Sections 10.5 and 10.6 shall be deemed to impose upon either party
any duty to procure or maintain any of the kinds of insurance referred to
therein or any particular amounts or limits of any such kinds of insurance.
However, each party shall advise the other, upon request, from time to time (but
not more often than once a year) of all of the policies of insurance it is
carrying of any of the kinds referred to in Sections 10.1 and 10.4, and if it
shall discontinue any such policy or allow it to lapse, shall notify the other
party thereof with reasonable promptness. The insurance policies referred to in
Sections 10.5 and 10.6 shall be deemed to include policies procured and
maintained by a party for the benefit of its mortgagee or pledgee.
ARTICLE 11
RULES AND REGULATIONS
11.1 Tenant and its employees and agent shall faithfully observe and comply with
the Rules and Regulations annexed hereto as Exhibit E, and such reasonable
changes therein (whether by modification, elimination, or addition) as Landlord
at any time or times hereafter may make and communicate in writing to Tenant,
which do not unreasonably affect the conduct of Tenant's business in the Demised
Premises or substantially affect Tenant's cost of occupancy; provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and any of the Rules and Regulations as originally promulgated or as
changed, the provisions of this Lease shall control.
11.2 Nothing contained in this Lease shall be construed to impose upon Landlord
any duty or obligation to Tenant to enforce the Rules and Regulations or the
terms, covenants, or conditions in any other lease, as against any other tenant
and Landlord shall not be
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liable to Tenant for violation of the same by any other tenant or its employees,
agents or visitors. However, Landlord shall not enforce any of the Rules and
Regulations in such manner as to discriminate against Tenant or anyone claiming
under or through Tenant.
ARTICLE 12
TENANT'S CHANGES
12.1 After Tenant takes occupancy of the Demised Premises, Tenant shall make no
changes, alterations, additions, installations, substitutions, or improvements
(hereinafter collectively called "changes," and, as applied to changes provided
for in this Article, "Tenant's Changes") in and to the Demised Premises without
the express prior written consent of Landlord, which shall not be unreasonably
withheld conditioned or delayed. Any additional portion of the Demised Premises
used for lab space beyond that lab space provided for in the initial build-out
shall be considered a Tenant Change and must be approved by Landlord in writing
pursuant to this Article. Landlord's consent shall not be required for painting
of the Demised Premises provided Tenant gives Landlord written notice of its
intent to paint the premises, the manufacturer of the paint and the color of the
paint. Landlord's consent shall not be required for carpeting the Demised
Premises provided Tenant gives Landlord written notice of specifically how the
carpet is going to be installed.
All proposed Tenant's Changes shall be submitted to Landlord for written consent
at least thirty (30) days prior to the date Tenant intends to commence such
changes, such submission to include plans and specifications for the work to be
done, proposed scheduling, and the estimated cost of completion of Tenant's
Changes. Landlord agrees, within ten (10) business days from Landlord's receipt
of Tenant's request for consent to a Tenant Change, to acknowledge receipt of
such request. At the time Landlord gives its consent to the Tenant Changes,
Landlord shall provide Tenant with the estimated cost of the supervision fee as
set forth below. If Landlord consents to Tenant's Changes, Tenant may commence
and diligently prosecute to completion Tenant's Changes, under the direct
supervision of Landlord. If Landlord fails to take any action within the thirty
(30) day period set forth above, Landlord shall be deemed to approved the
Tenant's Changes. However, any Tenant Change deemed approved in such a manner
shall be subject to the Supervision Fee as set forth below and Tenant shall be
required to give Landlord written notice of Landlord's failure to respond to
Tenant's request for consent to a Tenant Change in which notice Tenant must
demand Landlord to advise Tenant of any restoration required as a result of such
Tenant Change. Thereafter, if Landlord fails to advise Tenant of any restoration
requirements pursuant to such Tenant Change within three (3) days of Landlord's
receipt of Tenant's demand, then restoration shall not otherwise be required
with respect to such Tenant's Changes.
Tenant shall pay to Landlord a Supervision Fee (which shall include the cost of
review of the proposed Tenant's Changes) the lesser of the actual cost of the
supervision or equal to ten percent (10%) of the certified cost of completion of
Tenant's Changes. Prior to the commencement of Tenant's Changes, Tenant shall
pay to Landlord ten percent (10%) of the estimated cost of completion (the
"Estimated Payment") as additional rent. Within fifteen (15) days after
completion of Tenant's Changes, Tenant shall furnish Landlord with a statement,
certified by an officer or a principal of Tenant to be accurate and true, of the
total cost of
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completion of Tenants Changes (the "Total Cost"). If such certified statement
furnished by Tenant shall indicate that the Estimated Payment exceeded the
lesser of the actual cost of the supervision or ten percent (10%) of the Total
Cost, Landlord shall forthwith either (i) pay the amount of excess directly to
Tenant concurrently with the delivery of the certified statement or (ii) permit
Tenant to credit the amount of such excess against the subsequent payment of
rent due hereunder. If such certified statement furnished by Tenant shall
indicate that the lesser of the actual cost of the supervision or ten percent
(10%) of the Total Cost exceeded Tenant's Estimated Payment, Tenant shall
simultaneously with the delivery to Landlord of the certified statement, pay
the amount of such excess to Landlord as additional rent. Any Tenant Changes
performed by the Landlord shall not be subject to a separate Supervision Fee as
described in this Paragraph (the cost of any type of supervision shall be
included in the price of the work).
12.2 Notwithstanding the provisions of Section 12. 1, all proposed Tenants
Changes which shall affect or alter:
(a) The outside appearance or the strength of the Building or of any of its
structural parts; or
(b) Any part of the Building outside of the Demised Premises; or
(c) The mechanical, electrical, sanitary and other service systems of the
Building, or increase the usage of such systems;
shall be performed only by the Landlord, at a cost to be mutually agreed upon
between Landlord and Tenant, which cost shall be commercially reasonable.
12.3 Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's
Changes and for final approval thereof upon completion, and shall cause
Tenant's Changes to be performed in compliance therewith and with all
applicable laws and requirements of public authorities, and with all applicable
requirements of insurance bodies, and in good and workmanlike manner, using
new materials and equipment at least equal in quality and class to the original
installations in the Building. Tenant's Changes shall be performed in such
manner as not to unreasonably interfere with or delay and (unless Tenant shall
indemnify Landlord therefor to the latter's reasonable satisfaction) as not to
impose any additional expense upon Landlord in the construction, maintenance
or operation of the Building. Throughout the performance of Tenant's Changes,
Tenant, at its expense, shall carry, or cause to be carried, workmen's
compensation insurance in statutory limits and general liability insurance for
any occurrence in or about the Building, in which Landlord and its agents
shall be named as parties insured in such limits as Landlord may reasonably
prescribe, with insurers reasonably satisfactory to Landlord. Tenant shall
furnish Landlord with reasonably satisfactory evidence that such insurance is
in effect at or before the commencement of Tenant's Changes and, on request,
at reasonable intervals thereafter during the continuance of Tenants Changes.
If any of Tenant's Changes shall invoke the removal of any fixtures, equipment
or other property in the Demised Premises which are not Tenants Property (as
defined in Article 13), such fixtures, equipment or other property shall be
promptly replaced, at Tenant's expense, with new fixtures, equipment or other
property (as the case may
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be) of like utility and at least equal value. In addition, unless Landlord
shall otherwise expressly consent in writing, the Tenant shall deliver such
removed fixtures to Landlord.
12.4 Tenant at its expense, and with diligence and dispatch, shall procure the
cancellation or discharge of all notices of violation arising from or otherwise
connected with Tenant's Changes which shall be issued by any public authority
having or asserting jurisdiction. Tenant shall defend, indemnify and save
harmless Landlord against any and all mechanic's and other liens filed in
connection with Tenants Changes, including the liens of any security interest
in, conditional sales of, or chattel mortgages upon, any material, fixtures or
articles so installed in and constituting part of the Demised Premises and,
against all costs, expenses and liabilities incurred in connection with any such
lien, security interest, conditional sale or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Section 9.2.
12.5 Tenant agrees that the exercise of its rights pursuant to the provisions of
this Article 12 shall not be done in a manner which would create any work
stoppage, picketing, labor disruption or dispute or violate Landlord's union
contracts affecting the Land and Building, nor interference with the business of
Landlord or any tenant or occupant of the Building.
12.6 If Landlord requires restoration of all or any part of Tenants Changes,
Landlord shall advise Tenant of such restoration requirement at the time
Landlord gives its consent to any Tenant Changes. If Landlord fails to require
restoration at the time it gives such consent, then restoration shall not
otherwise be required with respect to such Tenant's Changes.
ARTICLE 13
TENANT'S PROPERTY
13.1 All fixtures, equipment, improvements, and appurtenances attached to or
built into the Demised Premises at the commencement of or during the term of
this Lease, whether or not by or at the expense of Tenant, shall be and remain
a part of the Demised Premises, shall be deemed the property of Landlord and
shall not be removed by Tenant, except as hereinafter in this Article expressly
provided.
13.2 All business and trade fixtures, machinery and equipment,
communications equipment and office equipment whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises by
or for the account of Tenant without expense to Landlord, and can be removed
without permanent structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Demised Premises (all of which are sometimes called "Tenant's
Property"), shall be and shall remain the property of Tenant and may be removed
by it at any time during the term of this Lease; provided that if any of
Tenants Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Demised Premises or to the Building resulting from such
removal. Any equipment or other property for which Landlord shall have
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granted any allowance or credit to Tenant shall not be deemed to have been
installed by or for the account of Tenant without expense to Landlord, and
shall not be considered Tenants Property.
13.3 At or before the Expiration Date, or the date of an earlier termination
of this Lease, or as promptly as practicable after such an earlier termination
date, Tenant at its expense, shall remove from the Demised Premises all of
Tenants Property except such items thereof as Tenant shall have expressly
agreed in writing with Landlord were to remain and to become the property of
Landlord, and, if requested by Landlord, all items of work done by or on behalf
of Tenant, in accordance with Article 12, after the Tenant takes occupancy of
the Demised Premises shall be removed by Tenant and Tenant shall repair any
damage to the Demised Premises or the Building resulting from such removal.
Landlord and Tenant agree that a minimum of ninety (90) days prior to the
Expiration Date of this Lease, Landlord shall walk through the Demised Premises
with Tenant and create a punchlist of all restoration which shall be required
to be completed by Tenant by the Expiration Date. Failure by Landlord and
Tenant to walk through the Demised Premises ninety (90) days prior to the
Expiration Date of this Lease shall not relieve Tenant of any restoration
obligations otherwise required pursuant to this Lease. However, if Tenant gives
Landlord notice that it desires to walk through the Demised Premises and
identify the restoration required as set forth above and Landlord does not
fulfill its obligation to walk through the Demised Premises, Tenant will not be
relieved of any of its restoration obligations but will not be deemed in
holdover as set forth below while it performs such restoration. Thereafter,
Tenant may request a written estimate from Landlord for the cost of all
restoration required pursuant to this Lease. Landlord and Tenant acknowledge
that Landlord, prior to the Expiration Date, will have already notified Tenant
of its restoration obligations pursuant to a restoration al letter dated
September 12, 1966 and Article 12 of the Lease, and, as a result,
notwithstanding the ninety (90) day time period set forth above, it shall be
Tenant's obligation to ensure that Tenant has enough time after the Landlord
and Tenant walk through the Demised Premises, if Tenant will be performing such
restoration prior to the Expiration Date of the Lease. The cost contained in
such estimate shall be commercially reasonable and where possible, Landlord
will competitively bid the work. In lieu of restoring the Demised Premises as
required pursuant to this Lease, Tenant may, at its option, pay Landlord, prior
to the Expiration Date of the Lease, the cost of such restoration as set forth
in Landlord's estimate. If Tenant fails to remove its Property (except for
minor or insubstantial pieces of Tenant's Property which can be easily removed
by Landlord at little or no expense), fails to perform any restoration required
of it under this Lease and/or fails to pay Landlord for the cost of any
restoration required, on or before the last day of the term of this Lease or
upon any earlier termination, then Tenant shall be deemed a holdover Tenant as
contemplated in Article 40. For the first fifteen (15) days of holdover as set
forth above, Tenant shall only be required to pay holdover charges on a per
them basis. After the expiration of fifteen (15) days the Tenant shall be in
subject to holdover changes on a monthly basis. If, unknowingly, Tenant
incorrectly performs any of the restoration required, Landlord shall notify
Tenant and Tenant shall have fifteen (15) days to correct such error. If Tenant
fails to correct such error within the thirty (30) day period, Tenant shall be
subject to holdover from the day on which Tenant received Landlord's notice of
the incorrect restoration.
13.4 Any other items of Tenants Property (except money, securities, and
other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a
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period of fifteen (15) days following an earlier termination date, may, at the
option of the Landlord, be deemed to have been abandoned, and in such case
either may be retained by Landlord as its property or may be disposed of,
without accountability, in such manner as Landlord may see fit, at Tenant's
expense.
ARTICLE 14
REPAIRS AND MAINTENANCE
14.1 Tenant shall take good care of the Damaged Premises. Tenant, at its
expense, shall promptly make all repairs, ordinary or extraordinary, interior
or exterior, structural or otherwise in and about the Damaged Premises and the
Building, as shall be required by reason of (i) the performance of Tenant's
Changes, if Landlord or its affiliate does not perform the Tenant's Changes;
(ii) the installation, use or operation of Tenant's Property in the Damaged
Premises by Tenant, its agents or employees; (iii) the moving of Tenant's
Property in or out of the Building; or (iv) the misuse or neglect of Tenant or
any of its employees, agents, contractors or invitees; but Tenant shall not be
responsible, and Landlord shall be responsible, for any of such repairs as are
required by reason of Landlord's neglect or other fault in the manner of
performing any of Tenant's Finish Work or Tenant's Changes which may be
undertaken by Landlord for Tenant's account or are otherwise required by reason
of neglect or other fault of Landlord or its employees, agents, or contractors.
Except if required by the neglect or other fault of Landlord or its employees,
agents, or contractors, Tenant, at its expense, shall replace all scratched,
damaged or broken doors or other glass in or about the Damaged Premises and
shall be responsible for all repairs, maintenance, and replacement of wall and
floor coverings in the Damaged Premises except for ordinary wear and tear.
Landlord shall be responsible for the repair and maintenance of all
non-conforming ballasts existing prior to the commencement of Tenant's Work
which ballasts remain as fixtures in the Damaged Premises. Tenant shall be
responsible for the repair and maintenance of all other ballasts.
14.2 Landlord, subject to the provisions of Section 5.4, shall keep and
maintain the Building and its fixtures, appurtenances, systems and facilities
serving the Damaged Premises, in good working order, condition, and repair and
shall make with all due diligence all repairs, structural and otherwise,
interior and exterior, as and when needed in or about the Damaged Premises,
except for those repairs for which Tenant is responsible pursuant to any other
provisions of this Lease.
14.3 Landlord shall have no liability to Tenant by reason of any
inconvenience, annoyance, interruption, or injury to Tenants business arising
from Landlord's making any repairs or changes which Landlord is required or
permitted by this Lease or required by law, to make in or to any portion of the
Building or the Damaged Premises, or in or to the fixtures, equipment of
appurtenances of the Building or the Demised Premises, provided that Landlord
shall use due diligence with respect thereto and shall perform such work,
except in case of emergency, at a time reasonably convenient to Tenant and
otherwise in such a manner as will not materially interfere with Tenant's use
of the Demised Premises. Landlord, at its sole expense and not subject to
ss 5.4, shall be responsible for roof replacement and structural repair
and replacement during the initial term of the Lease.
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ARTICLE 15
ELECTRICITY
15.1 Landlord shall furnish the electric energy that Tenant shall require in
the Demised Premises. Tenant shall pay to Landlord, as additional rent, the
costs and charges for all electric energy furnished to Tenant at the Demised
Premises. Additional rent for such electric energy shall be calculated and
payable in the manner hereinafter set forth.
15.2 Within a reasonable time after the commencement of the term of this
Lease, subsequent to Tenant's having taken occupancy of the Demised Premises
and having installed and commenced the use of Tenant's electrical equipment,
Landlord, at Tenant's sole expense, shall cause a survey to be made by a
reputable independent electrical engineer or similar agency of the estimated
use of electric energy (other than for heat and air conditioning) to the
Demised Premises, and shall compute the cost thereof for the quantity so
determined at prevailing retail rates. Tenant shall pay Landlord the cost of
such electric energy, as so calculated, on a monthly basis, as additional rent,
together with its payment of fixed rent.
Until such time as Landlord shall complete the aforedescribed survey, Tenant
shall pay to Landlord, each and every month, as additional rent, for and on
account of Tenant's electrical consumption, the sum of $3,906.25 for the
Initial Space for first two months of the Lease term and $5,208.33 thereafter
to be applied against Tenant's obligations hereunder. Upon completion of the
survey, there shall be an adjustment for the period from the day the Tenant
takes occupancy of the Demised Premises through the date that the results of
the survey shall be effectuated as shall be required. Landlord shall have the
right, at any time, during the term of this Lease, to cause the Demised
Premises to be resurveyed. In the event that such resurvey indicates an
increase of 10% or greater of Tenant's previous consumption for the Demised
Premises, then Tenant shall pay the cost of such resurvey. In the event that
such resurvey indicates either of (i) no increase; or (ii) an increase less
than 10% of Tenant's previous consumption, or (iii) a decrease, then Landlord
shall bear the cost of such resurvey. Tenant shall have the right, at any time
during the term of the Lease, to cause the Demised Premises to be resurveyed.
In the event that such resurvey shall indicate increased or decreased
electrical consumption by Tenant at the Demised Premises, there shall be an
adjustment in the amount paid by Tenant to Landlord for Tenant's electrical
consumption in accordance with the resurvey as well as an adjustment
retroactive to the date Landlord establishes Tenant's increase or decrease
in electrical consumption in excess of the consumption established by the
prior survey. All surveys pursuant to this Article shall be conducted by a
reputable independent electrical engineer or similar agency recognized by the
electric company servicing the Building.
Landlord shall submit to Tenant the results of any electrical survey and the
same shall be deemed binding upon Tenant unless Tenant shall object to same
within ninety (90) days of the date that Landlord shall furnish Tenant with the
results of the survey.
15.3 Landlord shall not be liable in any way to Tenant for any failure or
defect in the supply or character of electric energy furnished to the Demised
Premises by reason of any requirement, act, or omission of the public utility
serving the Building with electricity or for any
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other reason. Landlord shall furnish and install all replacement lighting
tubes, lamps and bulbs required in the Demised Premises at Tenant's expense.
15.4 Tenants use of electric energy in the Demised Premises shall not at any
time exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Demised Premises. Landlord shall provide electricity
service to the Demised Premises (exclusive of HVAC service) for Tenant's
exclusive use for business machines and lighting equal to +3 xxxxx per rentable
square feet. In order to insure that such capacity is not exceeded and to avert
possible adverse effect upon the Building electric service, Tenant shall not,
without Landlord's prior written consent in each instance (which shall not be
unreasonably withheld), connect any additional fixtures, appliances, or
equipment to the Building electrical distribution system or make any alteration
or addition to the electric system of the Demised Premises existing on the day
the Tenant takes occupancy of the Demised Premises. Should Landlord grant such
consent, all additional risers or other equipment required therefor shall be
provided by Landlord and the cost thereof shall be paid by Tenant upon
Landlord's demand. As a condition to granting such consent, Landlord, at
Tenant's sole expense, may cause a new survey to be made of the use of electric
energy (other than for heating and air-conditioning) in order to calculate the
potential additional electric energy to be made available to Tenant based upon
the estimated additional capacity of such additional risers or other equipment.
When the amount of such increase is so determined, and the estimated cost
thereof is calculated, the amount of monthly additional rent payable pursuant to
Section 15.2 hereof shall be adjusted to reflect the additional cost, and shall
be payable as therein provided.
15.5 If the public utility rate schedule for the supply of electric current
to the Building shall be increased during the term of this Lease, the
additional rent payable pursuant to Section 15.2 hereof shall be equitably
adjusted to reflect the resulting increase in Landlord's cost of furnishing
electric service to the Demised Premises effective as of the date of any
increase. Landlord and Tenant agree that the rate charged to Tenant for
electricity shall not be greater than the rate Tenant would have paid had the
Demised Premises been separately metered.
15.6 Tenant agrees within three (3) months from the day the Tenant takes
occupancy of the Demised Premises to submit to Landlord a list of fixtures and
equipment utilizing electric current including, but not limited to, copying
machines, computers and word processing equipment and equipment of a similar
nature. On the first day of each calendar quarter thereafter, Tenant shall
submit to Landlord a statement indicating any substantial changes in the list
previously supplied as same may be updated by the required quarterly
statements.
15.7 Tenant, at its sole cost and expense, may have a submeter installed by
Landlord at any time during the term of this Lease.
ARTICLE 16
HEATING, VENTILATION AND AIR-CONDITIONING
16.1 Landlord, subject to the provisions of Section 5.4, shall maintain and
operate the heating, ventilating, and air-conditioning systems (hereinafter
called "the systems") and shall furnish heat, ventilating, and air conditioning
(hereinafter collectively called "air
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conditioning service") in the Demised Premises through the systems, in
compliance with the performance specifications set forth in Exhibit C, as may be
required for comfortable occupancy of the Demised Premises from 7:00 AM to 6:00
PM Monday through Friday and 8:00 AM to 1:00 PM on Saturday as requested by
Tenant, except days observed by the federal or the state government as legal
holidays ("Regular Hours") throughout the year. If Tenant shall require
air-conditioning service at any other time (hereinafter called "after hours"),
Landlord shall furnish such after hours airconditioning service upon four (4)
hours advance notice or the preceding day in the event of holidays or weekends
from Tenant, and Tenant shall pay Landlord's then established charges therefor
on Landlord's demand. Landlord's current charge for after hours air-conditioning
service is $45.00 per hour for the entire Demised Premises.
16.2 Use of the Demised Premises, or any part thereof, in a manner exceeding
the design conditions (including occupancy and connected electrical load)
specified in Exhibit C for air-conditioning service in the Demised Premises, or
rearrangement of partitioning which interferes with normal operation of the
air-conditioning in the Demised Premises, may require changes in the
air-conditioning system servicing the Demised Premises. Such changes, so
occasioned, shall be made by Landlord, at Tenant's expense, as Tenant's Changes
pursuant to Article 12.
ARTICLE 17
LANDLORD'S OTHER SERVICES
17.1 Landlord, subject to the provisions of Section 5.4, shall provide
public elevator service, passenger and service, by elevators serving the floor
on which the Demised Premises are situated during Regular Hours, and shall have
at least one passenger elevator subject to call at all other times.
17.2 Landlord, subject to the provisions of Section 5.4, shall cause the
Demised Premises, including the exterior and the interior of the windows
thereof, to be cleaned. Tenant shall pay to Landlord on demand the costs
incurred by Landlord for (a) extra cleaning work in the Demised Premises
required because of (i) misuse or neglect on the part of Tenant or its
employees or visitors; (ii) use of portions of the Demised Premises for
preparation, serving or consumption of food or beverages, data processing, or
reproducing operations, private lavatories or toilets or other special purpose
areas requiring greater or more difficult cleaning work than office areas;
(iii) unusual quantity of interior glass sauces; (iv) non-building standard
materials or finishes installed by Tenant or at its request; and (b) removal
from the Demised Premises and the Building of so much of any refuse and rubbish
of Tenant as shall exceed that ordinarily accumulated daily in the routine of
business office occupancy. Landlord, its cleaning contractor, and their
employees shall have after-hours access to the Demised Premises and the free
use of light, power, and water in the Demised Premises as reasonably required
for the purpose of cleaning the Demised Premises in accordance with Landlord's
obligations hereunder.
17.3 Landlord, subject to the provisions of Section 5.4, shall furnish
adequate hot and cold water to each floor of the Building for drinking,
lavatory, and cleaning purposes, together with soap, towels, and toilet tissue
for each lavatory. If Tenant uses water for any other purpose, Landlord, at
Tenant's expense, shall install meters to measure Tenant's consumption of
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cold water and/or hot water for such other purposes and/or steam, as the case
may be. Tenant shall pay for the quantities of cold water and hot water shown
on such meters, at Landlord's cost thereof, on the rendition of Landlord's
bills therefor.
17.4 Landlord, at its expense, and at Tenant's request, shall insert
initial listings on the Building directory of the names of Tenant or any Tenant
Affiliate as defined in Section 8.9, and the names of any of their officers and
employees, provided that the names so listed shall not take up more than
Tenant's proportionate share of the space on the Building directory. All
Building directory changes made at Tenant's request after the Tenant's initial
listings have been placed on the Building directory shall be made by Landlord
at the expense of Tenant, and Tenant agrees to promptly pay to Landlord as
additional rent the cost of such changes within ten (10) days after Landlord
has submitted an invoice therefor.
17.5 Tenant at its sole cost and expense shall have the right to install its
name and logo on the existing exterior monument sign which shall be subject to
Landlord's reasonable approval and shall utilize Building standard graphics,
the size and location of which shall be determined by Landlord. Such sign shall
be the existing exterior monument sign located on the lawn adjacent to the
Building. Tenant agrees to remove such sign and restore the existing exterior
monument sign to its original condition, wear and tear excepted, upon the
expiration or earlier termination of this Lease. Tenant shall obtain all
required governmental permits and approvals and all costs and expenses
associated therewith shall be borne solely by Tenant. The erection of the sign
shall not cause any structural damage to the Building.
17.6 Landlord reserves the right, without any liability to Tenant, to stop
service of any of the heating, ventilating, air conditioning, electric,
sanitary, elevator, or other Building systems serving the Demised Premises, or
the rendition of any of the other services required of Landlord under this
Lease, whenever and for so long as may be necessary, by reason of accidents,
emergencies, strikes, or the making of repairs or changes which Landlord is
required by this Lease or by law to make or in good xxxxx xxxxx necessary, by
reason of difficulty in securing proper supplies of fuel, steam, water,
electricity, labor or supplies, or by reason of any other cause beyond
Landlord's reasonable control.
17.7 Throughout the term and extensions of this Lease, Landlord shall make
available for Tenant's use in common with other tenants of the Building 4
spaces per 1,000 rentable square feet and 10 reserved parking spaces in the
parking area adjacent to the Building as designated on Exhibit H. Landlord
agrees that except for payment of common expense charges covered by Article 5,
there shall be no separate fee or cost to Tenant for use of the parking area.
17.8 The Building and the Demised Premises shall be cleaned in accordance
with the Cleaning and Maintenance Schedule set forth on Exhibit D annexed
hereto and made a part hereof.
17.9 Tenant acknowledges that as part of the consideration for this Lease,
and in order not to interfere with the rights of other tenants or other
tenants' quiet enjoyment of the common areas of the Building and otherwise
prevent Landlord from performing its services without causing increases to the
cost of such services, Tenant agrees that it shall not permit its
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employees to congregate in hallways or elevators, shall not permit its
employees to create an unsightly condition in or about any passageway from the
Building or the common areas or to the parking lot/deck, with regard to
smoking, including the disposal of cigarettes, in the courtyard and/or outer
areas adjacent to the Building and will otherwise require its employees to act
and conduct themselves in the common areas in such a manner as will not disturb
other tenants or the use and enjoyment by other tenants of the Building.
17.10 Landlord, at its expense, shall maintain an in-door air quality
monitoring program to monitor the air quality of the Building and shall
effectuate such remedies as are required to insure that the air quality of the
Building satisfies current applicable governmental standards.
17.11 If due to the Landlord's failure to provide any service required to be
furnished hereby by Landlord with respect to the maintenance, repair and
operation of the Demised Premises or any portion thereof are not habitable and
therefore not usable for its permitted purpose and Tenant can not conduct
business in the Demised Premises, which condition continues for (i) ten (10)
continuous business days if such failure is not within Landlord's sole control
or (ii) five (5) continuous business days if such failure is within Landlord's
sole control, after Landlord's receipt of written notification from Tenant
stating with specificity the nature of the problem (which time shall be
extended by reason of force majeure which includes but is not limited to
strikes, lock-outs, labor controversy, inability to obtain supplies, acts of
God or other causes beyond Landlord's control other than purely reasonable
economic considerations under the circumstances), and which condition is not
caused by the negligent or intentional acts or failure to act of Tenant, then
Tenant shall be entitled to xxxxx its fixed rent and Operating Expenses and Tax
escalations after the condition herein described continues as follows:
For each calendar day commencing after the passage of such ten (10) business
days after Landlord's receipt of written notice of such failure, Tenant shall
be entitled to one (1) additional day of rent abatement prorated on the basis
of thirty (30) day calendar month, which abatement shall run from the date of
the next monthly payment of fixed rent which was otherwise due under Article
1.4. Such prorated one (1) day abatement shall continue for each additional
calendar day during which the such failure continues. An event is not within
Landlord's control if, for reasons beyond Landlord's control, Landlord can not
reasonably purchase or obtain the necessary equipment to correct any such
failure. Landlord shall diligently proceed to repair any failure as set forth
in this Section within five (5) days of written notice from Tenant. Landlord
and Tenant agree that none of the abatement aforesaid shall apply to Tenant's
obligation to pay additional rent. For the purposes of the right of abatement,
such right shall only exist when the Demised Premises are untenable because
of failures in all the elevators, HVAC, electric and/or plumbing systems.
Further, the Demised Premises must not only be untenable but, in fact, the
Tenant must not have used the Demised Premises during any period in which the
abatement is claimed. The foregoing shall not preclude any other remedy
available to Tenant.
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ARTICLE 18
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
18.1 All walls, windows, and doors bounding the Demised Premises (including
exterior Building walls, core corridor walls and doors, and any core corridor
entrance), except the inside surfaces thereof, any terraces or roofs adjacent
to the Demised Premises, and any space in or adjacent to the Demised Premises
used for shafts, stacks, piped conduits, fan room, ducts, electric or other
utilities, sinks or other Building facilities, and the use thereof, as well as
access thereto through the Demised Premises for the purposes of operation,
maintenance, decoration, and repair are reserved to Landlord. Upon Landlord's
reasonable and prompt approval, Tenant may have access to areas adjacent to the
Demised Premises for the installation of voice, data and security wiring
provided such wiring is removed by Tenant at the expiration of this Lease,
unless otherwise agreed upon by Landlord and Tenant in writing.
18.2 Tenant shall permit Landlord to have access to the Demised Premises to
install use, and maintain pipes, ducts, and conduits within the demising walls,
bearing columns, and ceilings above the Demised Premises.
18.3 Landlord or Landlord's agent shall have the right upon advance
reasonable request (except in emergency under clause (ii) hereof) to enter
and/or pass through the Demised Premises or any part thereof, at reasonable
times during Tenant's business hours, (i) to examine the Demised Premises and
to show them to the fee owners, holders of superior mortgages, or prospective
purchases or mortgagees of the Building as an entirety, and (ii) for the
purpose of making such repairs or changes or doing such repainting in or to the
Demised Premises or its facilities, as may be provided for by this Lease or as
may be mutually agreed upon by the parties or as Landlord may be required to
make by law or in order to repair and maintain said structure or its fixtures
or facilities. Landlord shall be allowed to take all materials into and upon
the Demised Premises that may be required for such repairs, changes,
repainting, or maintenance, without liability to Tenant but Landlord shall not
unreasonably interfere with Tenant's use of the Demised Premises. Landlord
shall also have the right to enter on and/or pass through the Demised Premises,
or any part thereof, at such times as such entry shall be required by
circumstances of emergency affecting the Demised Premises or the Building.
18.4 During the period of six (6) months prior to the Expiration Date,
Landlord may exhibit the Demised Premises to prospective tenants.
18.5 Landlord reserves the right, at any time after completion of the
Building, without incurring any liability to Tenant therefor, to make such
changes in or to the Building and the fixtures and equipment thereof, as well
as in or to the street entrances, halls, passages, elevators, escalators, and
stairways thereof, as it may deem necessary or desirable, provided, however,
that such changes shall not reduce the size of the Demised Premises.
18.6 Landlord may adopt any name for the Building. Landlord reserves the
right to change the name or address of the Building at any time.
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18.7 Subject to applicable law and the limitations on Landlord's Services and
HVAC as set forth in Article 16 and 17, the Building shall be accessible
twenty-four (24) hours a day, seven (7) days a week.
ARTICLE 19
NOTICE OF ACCIDENTS
19.1 Tenant shall give notice to Landlord, promptly after Tenant learns
thereof, of (i) any accident in or about the Demised Premises for which
Landlord might be liable; (ii) all fires in the Demised Premises; (iii) all
damage to or defects in the Demised Premises, including the fixtures,
equipment, and appurtenances thereof, for the repair of which Landlord might be
responsible; and (iv) all damage to or defects in any parts or appurtenances of
the Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator, and other systems located in or passing through the Demised Premises
or any part thereof.
ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
20.1 Neither Landlord nor any agent or employee of Landlord shall be liable to
Tenant for any injury or damage to Tenant or to any other person or for any
damage to, or loss (by then or otherwise) of, any property of Tenant or of any
other person, irrespective of the cause of such injury, damage, or loss, unless
caused by or due to the negligence or willful act or omission of Landlord, its
agents, contractors or employees.
20.2 Tenant shall indemnify and save harmless Landlord and its agents against
and from (a) any and all claims (i) arising from (x) the conduct or management
of the Demised Praxes or of any business therein, or (y) any work or thing
whatsoever done, or any condition created (other than by Landlord for
Landlord's or Tenant's account) in or about the Demised Premises during the
term of this Lease or during the period of time, if any, prior to the day the
Tenant takes occupancy of the Demised Premises that Tenant may have been given
access to the Demised Premises, or (ii) arising from any negligent or otherwise
wrongful act or omission of Tenant or any of its subtenants, invitees or
licensees or its or their employees, agents, or contractors, and (b) all costs,
expenses, and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon. In case any action or proceeding be
brought against Landlord by reason of any such claim, Tenant upon notice from
Landlord, shall resist and defend such action or proceeding.
20.3 Landlord shall indemnify and save harmless Tenant and its agents against
and from (a) any and all claims (i) arising from (x) the conduct or management
of the Building by Landlord and/or its agents or (y) any work or thing
whatsoever done, or any condition created (other than by Tenant for Landlord's
or Tenant's account) in or about the Building caused by Landlord or its agents
during the term of this Lease, or (iii) arising from any negligent or otherwise
wrongful act or omission of Landlord or any of its employees, agents, or
contractors, and (b) all costs, expenses, and liabilities incurred in or in
connection with each such claim or
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action described in (a) above or proceeding brought thereon. In case any action
or proceeding be brought against Tenant by reason of any such claim, Landlord,
upon notice from Tenant shall resist and defend such action or proceeding.
20.4 Except as otherwise expressly provided in this Lease, this Lease and the
obligations of Tenant hereunder shall be in no wise affected, impaired or
excused because Landlord is unable to fulfill or is delayed in fulfilling, any
of its obligations under this Lease by reason of strike, other labor trouble,
governmental preemption or priorities or other controls in connection with a
national or other public emergency or shortages of fuel supplies or labor
resulting therefrom, or other like cause beyond Landlord's reasonable control.
ARTICLE 21
DESTRUCTION OR DAMAGE
21.1 If the Building or the Demised Premises shall be partially or totally
damaged or destroyed by fire or other cause, then whether or not the damage or
destruction shall have resulted from the fault or neglect of Tenant, or its
employees, agents or visitors (and if this Lease shall not have been terminated
as in this Article hereinafter provided), Landlord shall repair the damage and
restore and rebuild the Building and/or the Demised Premises, at its expense,
with reasonable dispatch after notice to it of the damage or destruction;
provided, however, that Landlord shall not be required to repair or replace any
of the Tenant's Property.
21.2 If the Building or the Demised Premises shall be partially damaged or
partially destroyed by fire or other cause not attributable to the fault or
negligence of Tenant, its agents, or employees, the rents payable hereunder
shall be abated to the extent that the Demised Premises shall have been
rendered untenantable and for the period from the date of such damage or
destruction to the date the damage shall be repaired or restored. If the
Demised Premises or a major part thereof shall be totally (which shall be
deemed to include substantially totally) damaged or destroyed or rendered
completely (which shall be deemed to include substantially completely)
untenantable on account of fire or other cause, the rents shall xxxxx as of the
date of the damage or destruction and usual Landlord shall repair, restore, and
rebuild the Building and the Demised Premises, provided, however, that should
Tenant reoccupy a portion of the Demised Premises during the period of
restoration work is taking place and prior to the date that the same are made
completely tenantable, rents allocable to such portion shall be payable by
Tenant from the date of such occupancy.
21.3 If the Building or the Demised Premises shall be totally damaged or
destroyed by fire or other cause, or if the Building shall be so damaged or
destroyed by fire or other cause (whether or not the Demised Premises are
damaged or destroyed) as to require a reasonably estimated expenditure of more
than twenty-five percent (25%) of the full insurable value of the Building
immediately prior to the casualty then in either such case Landlord may
terminate this Lease by giving Tenant notice to such effect within one hundred
eighty (180) days after the date of the casualty. In case of any damage or
destruction mentioned in this Article, Tenant may terminate the Lease by notice
to Landlord, if Landlord has not completed the making of the required repairs
and restored and rebuilt the Building and the Demised Premises within eight (8)
months from the date of such damage or destruction, or within such period after
such
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date (not exceeding six (6) months) as shall equal the aggregate period
Landlord may have been delayed in doing so by adjustment of insurance, labor
trouble, governmental controls, act of God, or any other cause beyond
Landlord's reasonable control.
21.4 No damages, compensation, or claim shall be payable by Landlord for
inconvenience, loss of business, or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy during such time that Tenant is able to use the
Demised Premises during Landlord's restoration.
21.5 Landlord will not carry insurance of any kind on Tenant's Property, and,
except as provided by law or by reason of its fault or its breach of any of its
obligations hereunder, shall not be obligated to repair any damage thereto or
replace the same; to the extent that Tenant shall maintain insurance on
Tenant's Property, Landlord shall not be obligated to repair any damage thereto
or replace the same.
21.6 The provisions of this Article shall be considered an express agreement
governing any case of damage or destruction of the Demised Premises by fire or
other casualty, and any law of the State of New Jersey providing for such a
contingency in the absence of an express agreement, and any other law of like
import, now of hereafter in force, shall have no application in such case.
21.7 If the Demised Premises and/or access thereto become partially or totally
damaged or destroyed by any casualty not insured against, then Landlord shall
have the right to terminate this Lease upon giving the Tenant thirty (30) days
notice and upon the expiration of said thirty (30) day notice period this Lease
shall terminate as if such termination date were the Expiration Date.
ARTICLE 22
EMINENT DOMAIN
22.1 If the whole of the Building shall be lawfully taken by condemnation or in
any other manner for any public or quasi-public use of purpose, this Lease and
the term and estate hereby granted shall forthwith terminate as of the date of
vesting of title on such taking (which date is herein also referred to as the
"date of the taking"), and the rents shall be prorated and adjusted as of such
date.
22.2 If any part of the Building shall be so taken, this Lease shall be
unaffected by such taking, except that Tenant may elect to terminate this Lease
in the event of a partial taking, if the area of the Demised Premises, or
parking areas or common areas, shall not be reasonably sufficient for Tenant to
continue feasible operation of its business. Tenant shall give notice of such
election to Landlord not later than thirty (30) days after the date of such
taking. Upon the giving of such notice to Landlord, this Lease shall terminate
on the date of service of notice and the rents apportioned to the part of the
Demised Premises so taken shall be prorated and adjusted as of the date of the
taking and the rents apportioned to the remainder of the
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Demised Premises shall be prorated and adjusted as of such termination date.
Upon such partial taking and this Lease continuing in force as to any part of
the Demised Premises, the rents apportioned to the part taken shall be prorated
and adjusted as of the date of taking and from such date the fixed rent shall
be reduced to the amount apportioned to the remainder of the Demised Premises
and additional rent shall be payable pursuant to Article 5 according to the
rentable area remaining.
22.3 Except as specifically set forth in Section 22.4. hereof, Landlord shall
be entitled to receive the entire award in any proceeding with respect to any
taking provided for in this Article without deduction therefrom for any estate
vested in Tenant by this Lease, and Tenant shall receive no part of such award.
Tenant hereby expressly assigns to Landlord all of its right, title, and
interest in or to every such award. Tenant may claim a condemnation award for
the unamortized portion of the cost incurred by Tenant in connection with any
of Tenant's Property installed pursuant to this Lease. In addition, Tenant may
xxx for relocation expenses and loss of profit and good will.
22.4 If the temporary use or occupancy of all or any part of the Demised
Premises shall be lawfully taken by condemnation or in any other manner for any
public or quasi-public use or purpose during the term of this Lease, Tenant
shall be entitled, except as hereinafter set forth, to receive any award which
does not serve to diminish Landlord's award in any respect and, if so awarded,
for the taking of Tenant's Property and for moving expenses, and Landlord shall
be entitled to receive that portion which represents reimbursement for the cost
of restoration of the Demised Premises. This Lease shall be and remain
unaffected by such taking and Tenant shall remain responsible for all of its
obligations hereunder insofar as such obligations are not affected by such
taking and shall continue to pay in full the fixed rent and additional rent
when due. If the period of temporary use or occupancy of the Demised Premises
(or a part thereof) shall be divided between Landlord and Tenant so that Tenant
shall receive so much thereof as represents the period prior to the Expiration
Date and Landlord shall receive so much thereof as represents the period
subsequent to the Expiration Date. All moneys received by Tenant as, or as part
of, an award for temporary use and occupancy for a period beyond the date to
which the rents hereunder have been paid by Tenant shall be received, held, and
applied by Tenant as a trust fund for payment of the rents failing due
hereunder.
22.5 In the event of any taking of less than the whole of the Building which
does not result in a termination of this Lease, or in the event of a taking for
a temporary use or occupancy of all or any part of the Demised Premises which
does not extend beyond the Expiration Date, Landlord, at its expense, shall
proceed with reasonable diligence to repair, alter, and restore the remaining
parts of the Building and the Demised Premises to substantially their former
condition to the extent that the same may be feasible and so as to constitute a
complete and tenantable Building and Demised Premises provided that Landlord's
liability under this Section 22.5 shall be limited to the net amount (after
deducting all costs and expenses, including, but not limited to, legal expenses
incurred in connection with the eminent domain proceeding) received by Landlord
as an award arising out of such taking. If such taking occurs within the last
three (3) years of the term of this Lease, Landlord shall have the right to
terminate this Lease by giving the Tenant written notice to such effect within
ninety (90) days after such taking, and this Lease shall then expire on that
effective date stated in the notice as if that were the Expiration
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Date, but the fixed rent and the additional rent shall be prorated and adjusted
as of the date of such taking.
22.6 Should any part of the Demised Premises be taken to effect compliance with
any law or requirement of public authority other than in the manner hereinabove
provided in this Article then, (i) if such compliance is the obligation of
Tenant under this Lease, Tenant shall not be entitled to any diminution or
abatement of rent or other compensation from Landlord therefor, but (ii) if
such compliance is the obligation of Landlord under this Lease, the fixed rent
hereunder shall be reduced and additional rents under Article 5 shall be
adjusted in the same manner as is provided in Section 22.2 according to the
reduction in rentable area of the Demised Premises resulting from such taking.
ARTICLE 23
SURRENDER
23.1 On the last day of the term of this Lease, or upon any earlier termination
of this Lease, or upon any reentry by Landlord upon the Demised Premises,
Tenant shall quit and surrender the Demised Premises to Landlord in good order,
condition, and repair, except for ordinary wear and tear and such damage or
destructions as Landlord is required to repair or restore under this Lease, and
Tenant shall remove all of Tenant's Property therefrom except as otherwise
expressly provided in this Lease. At the time of surrender, or earlier
termination of this Lease, the Demised Premises shall be in the same state as
existed as of the completion of Landlord's Work ordinary wear and tear
excepted. Any Tenant Changes, alterations or improvements, all of which must be
done in accordance with Article 12 shall be removed, except as may otherwise
have been provided by Landlord at the time it exercised its consent in
connection with such Tenant Changes pursuant to Article 12. Landlord and Tenant
agree that a minimum of ninety (90) days prior to the Expiration Date of this
Lease, Landlord shall walk through the Demised Premises with Tenant and create
a punchlist of all restoration which shall be required to be completed by
Tenant by the Expiration Date. Failure by Landlord and Tenant to walk through
the Demised Premises ninety (90) days prior to the Expiration Date of this
Lease shall not relieve Tenant of any restoration obligations otherwise
required pursuant to this Lease. However, if Tenant gives Landlord notice that
it desires to walk through the Demised Premises and identify the restoration
required as set forth above and Landlord does not fulfill its obligation to
walk through the Demised Premises, Tenant will not be relieved of any of its
restoration obligations but will not be deemed in holdover as set forth below
while it performs such restoration. Thereafter, Tenant may request a written
estimate from Landlord for the cost of all restoration required pursuant to
this Lease. Landlord and Tenant acknowledge that Landlord, prior to the
Expiration Date, will have already notified Tenant of its restoration
obligations pursuant to a restoration agreement letter dated September 12, 1966
and Article 12 of the Lease, and, as a result notwithstanding the ninety (90)
day time period set forth above, it shall be Tenant's obligation to ensure that
Tenant has enough time after the Landlord and Tenant walk through the Demised
Premises, if Tenant will be performing such restoration prior to the Expiration
Date of the Lease. The cost contained in such estimate shall be commercially
reasonable and where possible, Landlord will competitively bid the work. In
lieu of restoring the Demised Premises as required pursuant to this Lease,
Tenant may, at its option, pay Landlord,
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prior to the Expiration Date of the Lease, the cost of such restoration as set
forth in Landlord's estimate. If Tenant fails to perform any restoration
required of it under this Lease or fails to pay Landlord for the cost of any
restoration required on or before the last day of the term of this Lease or
upon any earlier termination, Tenant shall be deemed a holdover Tenant under
Article 40 of this Lease until such time as Tenant has completed such
restoration. For the first fifteen (15) days of holdover as set forth above,
Tenant shall only be required to pay holdover charges on a per diem basis.
After the expiration of fifteen (15) days the Tenant shall be in subject to
holdover charges on a monthly basis. If, unknowingly, Tenant incorrectly
performs any of the restoration required, Landlord shall notify Tenant and
Tenant shall have fifteen (15) days to correct such error. If Tenant fails to
correct such error within the thirty (30) day period, Tenant shall be subject
to holdover from the day on which Tenant received Landlord's notice of the
incorrect restoration.
ARTICLE 24
CONDITIONS OF LIGATION
24.1 This Lease and the term and estate hereby granted are subject to the
limitation that whenever Tenant shall make an assignment of the property of
Tenant for the benefit of creditors, or shall file a voluntary petition under
any bankrupt or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed by or against Tenant
under the reorganization provisions of the United States Bankruptcy Act or
under the provisions of any law of like imports or whenever a petition shall be
filed by Tenant under the arrangement provisions of any law of like import,
whenever a permanent receiver of Tenant or of or for the property of Tenant
shall be appointed, then Landlord, (a) at any time of receipt of notice of the
occurrence of any such event, or (b) if such event occurs without the
acquiescence of Tenant, at any time after the event continues for thirty (30)
days, Landlord may give Tenant a notice of intention to end the term of this
Lease at the expiration of five (5) days from the date of service of such
notice of intention, and upon the expiration of said five (5) day period this
Lease and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as
provided in Article 26.
24.2 This Lease and the term and estate hereby granted are subject to the
further limitation that:
(a) Whenever Tenant shall default in the payment of installment of
fixed rent or in the payment of any additional rent or any other
charge payable by Tenant to Landlord, or any day upon which the same
ought to be paid, and such default shall continue for five (5)
business days after written notice thereof; or
(b) Whenever Tenant shall do or permit anything to be done, whether by
action or inaction, contrary to any of Tenant's obligations hereunder,
and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to
Tenant a written notice specifying the same, or, in the case of a
happening or default which cannot with due diligence be cured within a
period of thirty (30) days and the
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continuance of which for the period required for cure will not subject Landlord
to risk of criminal liability or termination of any foreclosure of any superior
mortgage if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenants intention to duly institute all steps necessary to remedy
such situation; (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same; (iii) complete such remedy within such time after the date of giving of
said notice to Landlord as shall reasonably be necessary; or
(c) Whenever any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired
balance of the term hereof would, by operation of law or otherwise,
devolve upon or pass to any person, film, or corporation other than
Tenant, except as expressly permitted by Article 8; or
(d) Whenever Tenant shall abandon the Demised Premises (unless as a
result of a casualty), or
(e) If Tenant shall default in the timely payment of rent or
additional rent and any such default shall continue to be repeated for
two (2) consecutive months or for a total of four (4) months in any
period of twelve (12) months, or more than three (3) times in any six
(6) month period, then, notwithstanding that such defaults shall have
each been cured within the applicable period, any similar default
shall be deemed to be deliberate and Landlord may thwarter serve a
notice of termination upon Tenant without affording to Tenant
opportunity to cure such default;
then, and in any of the foregoing cases, this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced, shall,
if the Landlord so elects, terminate upon ten (10) days written notice by
Landlord to Tenant of Landlord's election to terminate the Lease and the term
hereof shall expire and come end on the date fixed in such notice, with the same
effect as if that day were the Expiration Date, but Tenant shall remain liable
for the rent and additional rent which subsequently accrues and for damages as
provided in Article 26.
ARTICLE 25
RE-ENTRY BY LANDLORD
25.1 If Tenant shall default in the payment of any installment of fixed rent or
of any installment of additional rent, on any date upon which the same ought to
be paid and if such default shall continue for five (5) days after written
notice thereof, or if this Lease shall expire as provided in Article 24,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter re-enter the Demised Premises, or any part thereof, in the name of
the whole, either by summary dispossess proceedings or by any suitable action
or proceeding at law, or by force or otherwise, without being liable to
indictment, prosecution or damages therefor, and may repossess the same, and
may remove any persons therefrom, to the end that Landlord may have, hold, and
enjoy the Demised Premises again as and of its first estate and interest
therein. The word "re-enter," as herein used, is not restricted to its
technical legal meaning. In the event of any termination of this Lease under
the provisions of Article 24 or if Landlord shall
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re-enter the Demised Premises under the provisions of this Article or in the
event of the termination of this Lease, or of re-entry, by or under any summary
dispossess or other proceeding or action or any provision of law by reason of
default hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord
the fixed rent and additional rent payable by Tenant to Landlord up to the time
of such termination of this Lease, or of such recovery of possession or the
Demised Premises by Landlord, as the case may be, and shall also pay to
Landlord damages as provided in Article 26.
25.2 In the event of a breach or threatened breach by Landlord or Tenant of any
of their respective obligations under this Lease, either Landlord or Tenant, as
the case may be, shall also have the right of injunction. The special remedies
hereunder are cumulative and are not intended to be exclusive of any other
remedies or means of redress to which the parties may lawfully be entitled at
any time.
25.3 If this Lease shall terminate under the provisions of Article 24, or if
Landlord shall re-enter the Demised Premises under the provisions of this
Article, or in the event of any termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all moneys, if any, paid by Tenant to Landlord, whether as
advance rent, security, or otherwise, but such moneys shall be credited by
Landlord against any fixed rent or additional rent due from Tenant at the time
of such termination or re-entry or, at Landlord's option, against any damages
payable by Tenant under Article 26 or pursuant to law.
ARTICLE 26
DAMAGES
26.1 If this Lease is terminated under the provisions of Article 24, or if
Landlord shall re-enter the Demised Premises under the provisions of Article
25, or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action of any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either
(a) A sum which at the time of such termination of this Lease or at
the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate
of the fixed rent and the additional rent payable hereunder which
would have been payable by Tenant (conclusively presuming the
additional rent to be the same as was payable for the year immediately
preceding such termination) for the period commencing with such
earlier termination of this Lease or the date of any such re-entry, as
the case may be, and ending with the Expiration Date, had this Lease
not so terminated or had Landlord not so re-entered the Demised
Premises, over (ii) the aggregate rental value of the Demised Premises
for the same period, or
(b) Sums equal to the fixed rent and the additional rent (as above
presumed) payable hereunder which would have been payable by Tenant
had this Lease not so terminated, or had Landlord not so re-entered
the Demised Premises, payable upon the due dates
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therefor specified herein following such termination or such re-entry and until
the Expiration Date, provided, however, that if Landlord shall relet the
Demised Premises during said period, Landlord shall credit Tenant with the net
rents received by Landlord from such reletting, such net rents to be determined
by first deducting from the gross rents as and when received by Landlord from
such reletting, the expenses incurred or paid by Landlord in terminating this
Lease or in reentering the Demised Premises and in securing possession thereof,
as well as the expenses of reletting, including altering and preparing the
Demised Premises for new tenants, brokers' commissions, and all other expenses
properly chargeable against the Demised Premises and the rental therefrom; it
being understood that any such reletting may be for a period shorter or longer
than the remaining term of this Lease; but in no event shall Tenant be entitled
to receive any excess of such net rents over the sums payable by Tenant to
Landlord hereunder, nor shall Tenant be entitled in any suit for the collection
of damages pursuant to this Subsection to a credit in respect of any net rents
from a reletting, except to the extent that such net rents are actually
received by Landlord. If the Demised Premises or any part thereof should be
relet in combination with other space, then proper apportionment on a square
foot basis shall be made of the rent received from such reletting and of the
expenses of reletting.
If the Demised Premises or any part thereof to be relet by Landlord for the
unexpired portion of the term of this Lease, or any part thereof, before
presentation of proof of such damages to any court commission or tribunal the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting.
26.2 Suit or suits for the recovery of such damages, or any installments
thereof, may be brought by Landlord from time to time at its election, and
nothing contained herein shall be deemed to require Landlord to postpone suit
until the date when the term of this Lease would have expired if it had not
been so terminated under the provisions of Article 24, or under any provision
of law, or had Landlord not re-entered the Demised Premises. Nothing herein
contained shall be construed to limit or preclude recovery by Landlord against
Tenant of any sums or damages to which, in addition to the damages particularly
provided above, Landlord may lawfully be entitled by reason of any default
hereunder on the part of Tenant. Nothing herein contained shall be construed to
limit or prejudice the right of Landlord to seek and obtain as liquidated
damages by reason of the termination of this Lease or re-entry on the Demised
Premises for the default of Tenant under this Lease, an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, and
governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 26. 1.
26.3 In addition to the foregoing and without regard to whether this Lease is
terminated Tenant shall pay to Landlord upon demand, all costs and expenses
incurred by Landlord, including reasonable attorney's fees, with respect to any
lawsuit instituted or defended or any action taken by Landlord to enforce all
or any of the provisions of this Lease to the extent Landlord is successful.
Landlord agrees that, if, after implementing proceedings or litigation, Tenant
is successful therein, then Landlord shall pay Tenant's reasonable costs and
expenses, including reasonable attorney fees.
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26.4 Landlord agrees that if it fails to perform any service required of it,
Tenant shall notify Landlord in writing of such failure. Landlord shall then
have thirty (30) days within which to cure such default. Landlord shall
diligently and continually proceed to cure any such default within five (5)
days of written notice from Tenant. Landlord agrees to advise Tenant within
five (5) business days of Landlord's efforts to cure such default. If Landlord
fails to cure such default within the thirty (30) day period, Tenant shall be
entitled, but not obligated, to perform such service and invoice Landlord for
the cost thereof. If Landlord fails to reimburse Tenant, Tenant shall be
entitled to institute litigation against Landlord. If Tenant is successful in
such litigation, Tenant shall also be entitled to reasonable costs and expenses
including attorney's fees in connection with such litigation. Tenant agrees
that it shall not exercise the right of any offset against rent for any sums
due it pursuant to this Section until such time as Tenant has obtained a
judgment against Landlord.
ARTICLE 27
WAIVERS
27.1 Tenant, for Tenant, and on behalf of any and all persons claiming through
or under Tenant, including creditors of all kinds, does hereby waive and
surrender all right and privilege which they or any of them might have under or
by reason of any present or future law, to redeem the Demised Premises or to
have a continuance of this Lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as herein provided.
27.2 In the event that Tenant is in arrears in payment of fixed rent or
additional rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
it sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited.
27.3 Landlord and Tenant hereby waive trial by jury in any action, proceeding
or counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Demised Premises,
including any claim of injury or damage, or any emergency or other statutory
remedy with respect thereto.
27.4 The provisions in Articles 16 and 17 shall be considered express
agreements governing the services to be furnished by Landlord, and Tenant
agrees that any laws and/or requirements of public authorities, now or
hereafter in force, shall have no application in connection with any
enlargement of Landlord's obligations with respect to such services.
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ARTICLE 28
NO OTHER WAIVERS OR MODIFICATIONS
28.1 The failure of either party to insist in any one or more instances upon
the strict performance of any one or more of the obligations of this Lease, or
to exercise any election herein contained, shall not be construed as a waiver
or relinquishment for the future of the performance of such one or more
obligations of this Lease or of the right to exercise such election, but the
same shall continue and remain in full force and effect with respect to any
subsequent breach, act, or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, release,
discharge, terminate or effect an abandonment of this Lease, in whole or in
part, unless such executory agreement is in writing, refers expressly to this
Lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, or termination of effectuation of the
abandonment is sought.
28.2 Without limiting Section 28.1, the following provisions shall also apply:
(a) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by
Landlord. The delivery of keys to an employee of Landlord or of its
agent shall not operate as a termination of this Lease or a surrender
of the Demised Premises. If Tenant shall at any time request Landlord
to sublet the Demised Premises for Tenant's account, Landlord or its
agent is authorized to receive said keys for such purposes without
releasing Tenant from any of its obligations under this Lease, and
Tenant hereby releases Tenant from any liability for loss or damage to
any of Tenant's property in connection with such subletting.
(b) The receipt by Landlord of rent with knowledge of breach of any
obligation of this Lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser amount
than the correct fixed rent or additional rent due hereunder shall be
deemed to be other than a payment on account nor shall any endorsement
or statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and Landlord may accept
such check or payment without prejudice to Landlord's right to recover
the balance or pursue any other remedy in this Lease or at law
provided.
ARTICLE 29
CURING TENANT'S DEFAULTS
29.1 If Tenant shall default in the performance of any of Tenant's obligations
under this Lease, Landlord, without thereby waiving such default, may (but
shall not be obligated to) perform the same for the account and at the expense
of Tenant, without notice, in a case of emergency, and in any other case, only
if such default continues after the expiration of (i) ten (10) days from the
date Landlord gives Tenant notice of intention so to do, or (ii) the
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applicable grace period provided in Section 24.2 or elsewhere in this Lease for
cure of such default, whichever occurs later.
29.2 Bills, invoices and purchase orders for any and all costs, charges, and
expenses incurred by Landlord in connection with any such performance by it for
the account of Tenant, including reasonable counsel fees, involved in
collecting or endeavoring to collect the fixed rent or additional rent or any
part thereof, or enforcing or endeavoring to enforce any rights against Tenant,
under or in connection with this Lease, or pursuant to law, including any such
cost, expense, and disbursement involved in instituting and prosecuting summary
proceedings, may be sent by Landlord to Tenant or immediately, at Landlord's
option, and, shall be due and payable in accordance with the terms of such
bills.
ARTICLE 30
BROKER
30.1 Tenant covenants, warrants, and represents that than was no broker except
XXXXXXXX, XXXXXXXX & XXXXXXX ASSOCIATES and PALADIN GROUP (collectively
"Brokers") instrumental in consummating this Lease and that no conversations or
negotiations were had with any broker except Broker concerning the renting of
the Demised Praises. Tenant agrees to hold Landlord harmless against any claims
for a brokerage commission arising out of any conversations or negotiations had
by Tenant with any broker except Broker. Landlord agrees to pay Broker pursuant
to a separate agreement but such payment shall not exceed a 5% commission as
described in such agreement.
ARTICLE 31
NOTICES
31.1 Any notice, statement, demand, or other communications required or
permitted to be given, rendered, or made by either party to the other, pursuant
to this Lease or pursuit to say applicable law or requirement of public
authority, shall be in writing (whether or not so stated elsewhere in this
Lease) and shall be deemed to have been properly given, rendered or made, if
sent by overnight mail courier, addressed to the other party at the address set
forth below and shall be deemed to have been given, rendered, or made on the
date following the date of mailing. Either party may, by notice as aforesaid,
designate a different address or addresses for notices, statements, demands, or
other communications intended for it. In the event of the cessation of any mail
delivery for any reason, personal delivery shall be substituted for the
aforedescribed method of serving notices.
Landlord's Notice: Xxxxxxx Property Management 000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000 Attn: Xxxxxxx Xxxxxxxxx, Esq.
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Tenant's Notice: AT&T Paradyne 0000 000xx Xxxxxx Xxxxx X.X. Xxx 0000
Xxxxx, Xxxxxxx 00000-00000 Attn: Red Estate Manager
ARTICLE 32
ESTOPPEL CERTIFICATE
32.1 Tenant agrees, when requested by Landlord, to execute and deliver
to Landlord a statement certifying that this Lease is unmodified and
in full force and effect (or if there have been modifications, that
the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the fixed rent and
additional rent have been paid, whether any dispute exists with
respect thereto and stating whether or not, to Tenants best knowledge,
Landlord is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which Tenant
may have knowledge, it being intended that any such statement
delivered pursuant hereto may be relied upon by others. Such statement
shall be served upon Landlord by Tenant within ten (10) days of
Landlord's request.
ARTICLE 33
ARBITRATION
INTENTIONALLY OMITTED
ARTICLE 34
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.1 Tenant expressly acknowledges and agrees that Landlord has not made and is
not making, and Tenant in executing and delivering this Lease, is not relying
upon, any warranties, representations, promises or statements, except to the
extent that the same are expressly set forth in this Lease. It is understood
and agreed that all understandings and agreements heretofore had between the
parties are merged in the Lease, which alone fully and completely express their
agreements and that the same are entered into after full investigation, neither
party relying upon any statement or representation not embodied in the Lease
made by the other.
34.2 If any of the provisions of this Lease, or the application thereof to any
person or circumstances, shall, to any extent, be invalid or unenforceable, the
remainder of this Lease, or the application of such provision or provisions to
persons or circumstances other than those as to whom or which it is held
invalid or unenforceable, shall not be affected thereby, and every provision of
this Lease shall be valid and enforceable to the fullest extent permitted by
law.
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34.3 This Lease shall be governed in all respects by the laws of the State of
New Jersey.
ARTICLE 35
SECURITY
35.1 Tenant shall deposit with Landlord the sum of $135,416.66 upon the
execution of this Lease. Said deposit (sometimes referred to as the "Security
Deposit") shall be held by Landlord as security for the faithful performance by
Tenant of all the terms of the Lease by said Tenant to be observed and
performed. The Security Deposit shall not and may not be mortgaged, assigned,
transferred, or encumbered by Tenant without the written consent of Landlord,
and any such act on the part of Tenant shall be without force and effect and
shall not be binding upon Landlord. If any of the fixed or additional rent
herein reserved or any other sum payable by Tenant to Landlord shall be overdue
and unpaid, or if Landlord makes payment on behalf of Tenant, or if Tenant
shall fail to perform any of the terms, covenants, and conditions of the Lease,
then Landlord may, at its option and without prejudice to any other remedy
which Landlord may have on account thereof, appropriate and apply the entire
Security Deposit or so much thereof as may be necessary to compensate Landlord
toward the payment of fixed or additional rent and any loss or damage sustained
by Landlord due to such breach on the part of Tenant, plus expenses; and Tenant
shall forthwith upon demand restore the Security Deposit to the original sum
deposited. The issuance of a warrant and/or the re-entering of the Demised
Premises by Landlord for any default on the part of Tenant or for any other
reason prior to the expiration of the term shall not be deemed such a
termination of the Lease as to entitle Tenant to the recovery of the Security
Deposit. If Tenant complies with all of the terms, covenants, and conditions of
the Lease and pays all of the fixed and additional rent and all other sums
payable by Tenant to Landlord as they fall due, the Security Deposit shall be
promptly returned in full to Tenant after the expiration of the term of the
Lease and Tenant's satisfaction of all its obligations accruing prior to the
Lease expiration date. In the event of bankruptcy or other creditor-debtor
proceedings against Tenant, the Security Deposit and all other securities shall
be deemed to be applied first to the payment of fixed and additional rent and
other charges due Landlord for all periods prior to the filing of such
proceedings. In the event of sale by Landlord of the Building, Landlord may
deliver the then balance of the Security Deposit to the transferee of
Landlord's interest in the Demised Premises and Landlord shall thereupon be
discharged from any further liability with respect to the Security Deposit and
this provision shall also apply to any subsequent transferees. No holder of a
superior mortgage to which the Lease is subordinate shall be responsible in
connection with the Security Deposit, by way of credit or payment of any fixed
or additional rent, or otherwise, unless such mortgagee actually shall have
received the entire Security Deposit.
ARTICLE 36
PARTIES BOUND
36.1 The obligation of this Lease shall bind and benefit the successors and
assigns of the parties with the same effect as if mentioned in each instance
where a party is
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named or referred to, except that no violation of the provisions of Article 8
shall operate to vest any rights in any successor or assignee of Tenant and
that the provisions of this Article shall not be construed as modifying the
conditions of limitation contained in Article 24. However, the obligations of
Landlord under this Lease shall not be binding upon Landlord herein named with
respect to any period subsequent to the transfer of its interest in the
Building as owner or lessee thereof and in event of such transfer said
obligations shall thereafter be binding upon each transferee of the interest of
Landlord herein named as such owner or lessee of the Building, but only with
respect to the period ending with a subsequent transfer within the meaning of
this Article. Such transferee shall assumed all of Landlord's obligation to
Tenant pursuant to this Lease.
36.2 If Landlord shall be an individual, joint venture, tenancy in common,
partnership, unincorporated association, or other unincorporated aggregate of
individuals and/or entities or a corporation, Tenant shall look only to such
Landlord's estate and property in the Building (or the proceeds thereof) and
where expressly so provided in this Lease, to offset against the rents payable
under this Lease for the collection of a judgment (or other judicial process)
which requires the payment of money by Landlord in the event of any default by
Landlord hereunder. No other property or assets of such Landlord shall be
subject to levy, execution or other enforcement procedure for the satisfaction
of Tenants remedies under or with respect to this Lease, the relationship of
Landlord and Tenant hereunder or Tenants use or occupancy of the Demised
Premises. Further, Tenant agrees that Landlord shall not be liable to Tenant
for any special, indirect, or consequential damages arising out of Landlord's
breach of this Lease.
ARTICLE 37
CONSENTS
37.1 Wherever it is specifically provided in this Lease that a party's consent
is not to be unreasonably withheld, a response to a request for such consent
shall also not be unreasonably delayed. If either Landlord or Tenant considers
that the other had unreasonably withheld a consent, it shall so notify the
other party within ten (10) days after receipt of notice of denial of the
requested consent or, in case notice of denial is not received, within twenty
(20) days after mailing its request for the consent.
ARTICLE 38
MORTGAGE FINANCING TENANT COOPERATION
38.1 In the event that Landlord desires to seek mortgage financing secured by
the Demised Premises, Tenant agrees to cooperate with Landlord in the making of
any application(s) by Landlord for such financing including the delivery to
Landlord's mortgage broker or mortgagee, of such information as they shall
reasonably require with respect to Tenants occupancy of the Demised Premises,
including, but not limited to the current financial statement of Tenant, but
Tenant shall not be required to deliver such information directly to Landlord,
all of the above to be at no cost and expense of Tenant. In the event that
Landlord's
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mortgagee shall request changes to the within Lease in order to make same
acceptable to Landlord's mortgagee, Tenant agrees to consent to such changes,
provided such changes shall not affect the term of this case nor the financial
obligations of Tenant hereunder nor otherwise adversely affect Tenants rights
hereunder. Such changes must be agreed upon by both parties and shall be for
clarification purposes which are consistent with changes requested by financial
institutions which provide mortgages Class A office buildings similar to the
Building. The parties will agree to a request by such mortgagee for concurrent
notice of Landlord's defaults and reasonable opportunity to cure within
Landlord's grace period.
ARTICLE 39
ENVIRONMENTAL COMPLIANCE
39.1 Tenant shall at Tenants sole cost and expense, comply with the New Jersey
Industrial Site Recovery Act and the regulations promulgated thereunder
(referred to as "ISRA") as same relate to Tenant's occupancy of the Demised
Premises, as well as all other state, federal or local environmental law,
ordinance, rule, or regulation either in existence as of the date hereof or
enacted or promulgated after the date of this Lease, that concern the
management, control, discharge, treatment and/or removal of hazardous
discharges or otherwise affecting or affected by Tenant's use and occupancy of
the Demised Premises. Tenant represents that Tenant's SIC number is 0355, and
does not subject it to ISRA. Tenant shall at Tenant's own expense, make all
submissions to, provide all information to, and comply with all requirements of
the Bureau of Industrial Site Evaluation (the "Bureau") of the New Jersey
Department of Environmental Protection ("NJDEP"). Should the Bureau or any
other division of NJDEP, pursuant to any other environmental law, rule, or
regulation, determine that a cleanup plan be prepared and that a cleanup be
undertaken because of any spills or discharge of hazardous substances or wastes
at the Demised Premises which occur during the term of this Lease and were
caused by Tenant or its agents or contractors, then Tenant shall, at Tenant's
own expense prepare and submit the required plans and financial assurances, and
carry out the approved plans. In the event that Landlord shall have to comply
with ISRA by reason of Landlord's actions, Tenant shall promptly provide all
information requested by Landlord for preparation of non-applicability
affidavits or a Negative Declaration and shall promptly sign such affidavits
when requested by Landlord. Tenant shall indemnify, defend, and save harmless
Landlord from all fines, suits, procedures, claims, and actions of any kind
arising out of or in any way connected with any spills or discharges of
hazardous substances or wastes at the Demised Premises which occur during the
term of this lease and were caused by Tenant or its agents or contractors, and
from all fines, suits, procedures, claims, and actions of any kind arising out
of Tenant's failure to provide all information, make all submission and take
all actions required by the Bureau or any other division of NJDEP. Tenant's
obligations and liabilities under this Paragraph shall continue so long as
Landlord remains responsible for any spills or discharges of hazardous
substances or wastes at the Demised Premises which occur during the term of
this Lease and were caused by Tenant or its agents or contractors. Tenants
failure to abide by the terms of this paragraph shall be restrainable by
injunction. Tenant shall have no responsibility to obtain a "Negative
Declaration" or "Letter of Non-Applicability" from the NJDEP if the sole reason
for obtaining same is in connection with a sale or other disposition of the
real estate by Landlord but Tenant agrees to cooperate with Landlord in
Landlord's effort to obtain same and shall perform at
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Tenant's expense any clean up required by reason of Tenant's use and occupancy
of the Demised Premises. Landlord shall indemnify, defend, and save harmless
Tenant from all fines, suits, procedures, claims, and actions of any kind
arising out of or in any way connected with any spills or discharges of
hazardous substance or wastes at the Demised Premises, the Building or the
Landlord which occurred prior to the day the Tenant takes occupancy of the
Demised Premises and were not caused by Tenant and from all times, suits,
procedures, claims and actions of any kind arising out of or in any way
connected with any spills or discharges of hazardous substances or wastes at
the Demised Premises, the Building or the Landlord which occur during the term
of this Lease and were caused by Landlord or its agents or contractors, and
from all fines, suits, procedures, claims, and actions of any kind arising out
of Landlord's figure to provide all information, make all submission and take
all actions required by the Bureau or any other division of NJDEPE.
39.2 Landlord agrees that it shall use its best efforts to determine whether
any hazardous substances are present in or about the Demised Premises. Landlord
further agrees that if any such hazardous substances are discovered, it shall
remove such substance prior to Lease commencement at its sole cost and expense.
Tenant agrees that it shall maintain the Demised Premises and the Building free
from any hazardous substances or materials.
ARTICLE 40
HOLDING OVER
40.1 Tenant will have no right to remain in possession of all or part of the
Demised Praises after the expiration of the term. If Tenant remains in
possession of all or any part of the Demised Premises after the expiration of
the Lease, without the express consent of Landlord: (a) such tenancy will be
deemed to be a periodic tenancy from month-to-month only; (b) such tenancy will
not constitute a renewal or extension of this Lease for any further term; and
(c) such tenancy may be terminated by Landlord upon the earlier of (i) thirty
(30) days prior written notice, or (ii) the earliest date permitted by how. In
such event, monthly rent will be increased to an amount equal to 125% during
months 1 and 2; 150% during months 3 through 5; 175% during month 6 and 200%
thereafter, of the monthly rent payable during the last month of the term, and
any other sums due under this Lease will be payable in the amount and at the
times specified in this Lease. Such month-to-month tenancy will be subject to
every other term, condition, and covenant contained in this Lease. The
provisions of this Section shall not be construed to relieve Tenant from
liability to Landlord for damages resulting from any such holding over, or
preclude Landlord from implementing summary dispossess proceedings. Tenant
further acknowledges that its failure to perform any restoration required of it
under this Lease shall be deemed the same as its remaining in possession of the
Demised Premises after the explosion of the term, subjecting it to holdover
rent in accordance with this Article 40. Notwithstanding the foregoing,
Landlord agrees that Tenant may holdover for thirty (30) days after the
Expiration Date of this Lease without being liable to Landlord for damages
resulting from holdover or subject to summary dispossess proceeding provided
Tenant pays Landlord the holdover rent of 125% as set forth above.
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ARTICLE 41
CERTAIN DEFINITIONS AND CONSTRUCTIONS
41.1 For the purpose of this Lease and all agreements supplemental to this
Lease, unless the context otherwise requires, the definitions set forth in
Exhibit F annexed hereto shall be utilized.
41.2 The various terms which are italicized and defined in other Articles of
this Lease or are defined in Exhibits annexed hereto, shall have the meanings
specified in such other Articles and such Exhibits for all purposes of this
Lease and all agreements supplemental thereto, unless the context shall
otherwise require.
41.3 The submission of this Lease for examination does not constitute a
reservation of, or option for, the Demised Premises, and this Lease becomes
effective as a Lease only upon execution and delivery thereof by Landlord and
Tenant.
41.4 The Article headings in this Lease and the Index prefixed to this Lease
are inserted only as a matter of convenience in reference and are not to be
given any effect whatsoever in construing this Lease.
ARTICLE 42
RELOCATION OF TENANT
INTENTIONALLY DELETED
ARTICLE 43
OPTION TO RENEW
43.1 Provided that Tenant is not then in default of the terms, covenants, and
provisions of this Lease beyond the lapse of any applicable cure or grace
periods, Landlord hereby grants to Tenant the right to renew the term of this
Lease for one (1) additional period of five (5) years (the "Renewal Period")
commencing on the day after the initial Expiration Date upon the same terms and
conditions as set forth in this Lease other than the fixed annual rental which
shall be the Fair Market Rental of the Demised Premises at the time of the
commencement of the Renewal Period, adjusting as necessary for the lapse of
time between the date of Tenant's notification of intent to exercise its option
to renew and the date on which the Renewal Period is scheduled to commence.
Said fixed annual rental shall be payable in equal monthly installments in
advance on the first day of each and every month of the Renewal Period. Tenant
shall exercise the within Option by giving written notice to Landlord not later
than nine (9) months prior to the initial Expiration Date, TIME BEING OF THE
ESSENCE. If Tenant fails to give such notice, Tenant will be deemed to have
waived such Renewal Option and the provisions of
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this Section shall be null and void. Fair Market Value shall mean the rents
obtainable for comparable space in the Red Bank, New Jersey market area.
ARTICLE 44
RIGHT OF FIRST REFUSAL
44.1 Provided that Tenant is not then in default under the terms, covenants and
provisions of this Lease, Landlord hereby grants to Tenant the right at any
time during the term of this Lease to lease additional space on floors 3 and 4
in the Building (hereinafter "Expansion Space") which right is subject to the
prior rights of existing tenants. For purposes of this Section, "prior rights"
of existing tenants shall include an existing tenant's right of first refusal,
an option to expand, an option to renew or a renewal of an existing lease
whether or not pursuant to an option. The right of First Refusal is further
subject to the following terms and conditions:
(a) Tenant shall deliver to Landlord written notice of its Section
("Tenant's Election") to lease the Expansion Space on or before thirty
(30) calendar days after receipt of Landlord's Notice of
Negotiation/Intent to Lease (as defined in Section (b) below).
(b) Landlord, within ten (10) days after receiving Tenant's written
request and at Landlord's election, may either give Tenant written
notice of (1) its intention to negotiate with a third party for the
lease of such Expansion Space, which notice shall contain the terms
and conditions upon which Landlord initially intends to offer the
space to one or more third parties, or (2) of an offer received from a
third party to lease, which notice shall contain the terms and
conditions contained in said offer (collectively, "Landlord's Notice
of Negotiation/Intent to Lease"). For purposes hereof the terms shall
include rentable square footage and rate. If Tenant thereafter fails
to deliver to Landlord written notice of its Section to lease such
space within the applicable time periods set forth in Subsection (1)
above and on the same terms and conditions as contained in the
Landlord's Notice, Landlord may proceed to lease such Expansion Space
free and clear of this Right of First Refusal. If Tenant fails or
refuses to so exercise its Rights of First Refusal within thirty (30)
days after Landlord's written notice to Tenant, Tenant shall be deemed
to have waived its option to lease such space, and this Article shall
be null and void and have no further force and effect with respect to
such portion of the Expansion Space.
(c) In the event Landlord does not demise the Expansion Space to a
third party upon substantially the same terms and conditions contained
in Landlord's Notice of Intent to Lease, Landlord shall provide notice
to Tenant as set forth above with respect to any subsequent
negotiations or offer for said space.
(d) If Tenant exercises its Right of First Refusal then except for the
rate, then all terms and conditions of this Lease shall apply, except
as to the fixed rent and the term of to expansion space. As to such
term, no such term shall be less than the term of this Lease. If any
such terms is in excess of this Lease, then the term of this Lease
shall be deemed to have been extended commensurate with the term of
the Additional Space Lease pursuant to this Section.
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44.2 Tenant acknowledges that its Right of First Refusal shall not apply in
connection with the Lease currently being negotiated between Landlord and AT&T
for the balance of the 50,000 square feet of the Building.
ARTICLE 45
SATELLITE DISH
45.1 Permission is granted, free of rental charge, for the Tenant to install
one (1) satellite dish not to exceed two one-half (2 1/2) feet in diameter nor
protrude above the lowest part of the roof line by more than 4 feet, including
all cable, wiring, conduits and related equipment necessary for the reception
(but not the transmission) of radio and satellite-generated television
transmissions (collectively the "Antenna") at the Demised Premises on the roof
of the Building, at Tenant's sole cost and expense, subject to the following
restrictions:
(a) The location and means of securing the Antenna must be approved by Landlord
or its designated agent, and such location shall be selected with the goal of
minimizing its visual impact. Roof penetration will not be accepted except if
performed by Landlord or its designated agent, all at Tenant's sole cost and
expense. Tenant shall be responsible for any damage to the Building roof or any
surrounding property resulting from the installation or operation of the
Antenna, including, but not limited to, damage resulting from wind, ice or any
other causes. The Antenna shall not damage the Building or the system of
communication devised by any other user authorized by Landlord or users at
neighboring properties. If such damage or interference shall occur, Tenant
shall correct same promptly.
(b) Prior to installation, Tenant must provide Landlord with a copy of
all zoning or use approvals which may be required, including, without
limitation, any Federal Communications Commission ("FCC") licenses or
approvals. Landlord agrees to reasonably cooperate with Tenant in such
regard, all without cost to Landlord.
(c) Tenant agrees to maintain the Antenna in a proper and safe
operating condition and shall procure separate liability insurance
naming Landlord as an additional insured.
(d) Tenant shall comply with all applicable codes, rules, regulations and
conditions of the FCC, Federal Aviation Agency, and local governmental
agencies, and shall pay for all legal engineering and other expenses incident
thereto including all matters relating to hearings pursuant to the Municipal
Land and Use Law.
(e) Installation of the Antenna shall be performed in a responsible and
workmanlike manner by a recognized professional spite dish installer at
Tenant's sole cost and expense, through or under the supervision of Landlord.
Prior thereto, Tenant shall provide complete structural details signed and
sealed by an appropriately licensed engineer of the State of New Jersey, as
well as a sketch of the roof showing the proposed location of the antenna and
all relevant distances and heights. Landlord's supervision fee and, if the
presence or advice of Landlord's building engineer is required, Landlord's
building engineer fee shall be reimbursed to Landlord by Tenant for actual time
spent by Landlord's architect and building engineer at
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prevailing rates. Prior to installation, Tenant shall provide Landlord with a
copy of its FCC construction permit, license, or evidence of authority to
operate from this location. Landlord shall have final approval with respect to,
as well as the right to perform at Tenant's cost and expense, all roof
penetrations and repairs.
(f) Installations or substitutes shall meet all codes and shall be
made using Teflon wire (or by running wires through approved
conduits), rust-proof clamps, non-rustable hardware U-bolts, or other
similar devices of the highest quality commonly found in the industry,
capable of the bearing of the stress and strain of the installation
without impairing use and occupancy of the Building and without
adverse aesthetic impact upon any portion of the Demised Premises.
(g) Tenant shall be responsible for any costs associated with
furnishing electricity for the Antenna.
(h) Tenant shall not sublet, license or otherwise permit any third
party use of the Antenna.
(i) Access to the Antenna for inspection, servicing or any other
reason well only be allowed with prior permission and supervision by
Landlord or its agents and Tenant shall reimburse Landlord and/or its
agents at prevailing rates (during normal business hours) for time
spent by Landlord and/or its agents.
j) Landlord reserves the right to require the removal of the Antenna
at such time as the Landlord may have made provisions for acceptable
alternative arrangements, subject to Tenant's consent as to what
constitutes an acceptable alternative arrangement, which consent shall
not be unreasonably withheld. Landlord shall provide Tenant with prior
notice of the amount of time, if any, satellite services would be
interrupted and coordinate work with Tenant to avoid interruption of
Tenant's business.
(k) Tenant shall remove the Antenna and restore the roof to its
original condition at the earlier of Tenant's cessation of use of the
Antenna or the expiration of the term of this Lease or any renewal
term thereof, at Tenant's sole cost and expense, notwithstanding any
other provision of the Lease. The Antenna shall, at all times, remain
the property of Tenant and Tenant shall have the right to remove it at
any time, subject to the terms and conditions herein.
(l) Tenant acknowledges that it has been advised by Landlord that a
new roof was installed at the Building which is still the subject of a
manufacturers/installers warranty/guarantee. Tenant must install,
maintain and remove the Antenna in such a manner as to be consistent
with said warranty/guarantee and not perform or fail to perform any
act which would void, or cause to be voidable, Landlord's
warranty/guarantee.
(m) Tenant shall be responsible for implementing appropriate screening
as required by Landlord.
(n) Tenant agrees to indemnify, defend and hold Landlord harmless from
any claim resulting from property damage or personal injury arising in
connection with the
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installation, maintenance, existence or removal of the Antenna and shall carry
insurance to cover such liability and property damages.
ARTICLE 46
WAIVER OF DISTRAINT
46.1 Landlord hereby expressly waives any and all rights granted by or under
any present or future laws to levy or distrain for rent, in arrears, in advance
or both, on any goods, merchandise, equipment, fixtures (which Landlord and
Tenant agree are Tenant's Property), furniture or other personal property of
the Tenant (collectively defined for this Article only as "Tenant's Property"),
or any subtenant or licensee of Tenant except after Landlord has instituted a
legal action which permits the Landlord to levy or distrain on Tenant's
Property.
46.2 Tenant shall have the right to encumber and grant a security interest in
Tenant's Property in the Premises to a commercial bank trust company, mutual
savings bank savings and loan association or life insurance company ("Lender").
Any Lender to which the Tenant shall encumber its interest shall have the
right, but only after thirty (30) days from written notice to the Landlord, to
sell and remove from the Premises the Tenant's Property to satisfy the amount
of the outstanding lien; provided, however, that the Lender shall restore the
Premises to a condition satisfactory to the Landlord and repair any damage to
the Premises caused by such removal. Landlord hereby agrees to execute such
agreements of subordination and/or collateral assignment, in a form and consent
reasonably acceptable to Landlord, as Tenant's lenders may require from time to
time, within ten (10) business days of Landlord's receipt of said agreement.
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IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as of the
date and year first above written.
WITNESS: LANDLORD:
SHAV ASSOCIATES,
a New Jersey General Partnership
By: Xxxxxxxx Xxxxxxx
Title: General Partner
WITNESS: TENANT:
PARADYNE CORPORATION
a Delaware Corporation
By: XXXXX X. XXXXXXXX
Title: Senior Vice President
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EXHIBIT A
DESCRIPTION OF LAND
000 XXXXXX XXXXX
ALL that certain tract or parcel of land and premises, situate, lying and being
in the Township of Middletown, in the County of Monmouth, State of New Jersey,
more particularly described herein.
BEING known and designated as Lot 2 in Block 296, on a map entitled "Final Map
for the SHAV Corporation consisting of Lots 16, 16-D, 17, 18 and 19 in Block
000, Xxxxxxxxxx Xxx, Xxxxxxxx Co." dated June 2, 1980 and filed December 1,
1980 in the Monmouth County Clerk's Office as Case 170-6.
BEING more particularly described in accord with said filed map as follows:
BEGINNING at the point of intersection of the northerly line of the Garden
State Parkway and the westerly line of Xxxxxx Drive as marked by a monument and
running thence:
1. North 52 degrees 20' 10" West for a distance of 185.59 feet to Garden
State Parkway Monument #A-165; thence
2. North 47 degrees 42' 50" West for a distance of 374.45 to Garden State
Parkway Monument #A-167; thence
3. North 34 degrees 29' 19" West for a distance of 90.96 feet to a
monument; thence
4. Norm 2 degrees 51' 30" West for a distance of 258.85 feet; thence
5. South 87 degrees 26' 27" East for a distance of 313.90 feet; thence
6. South 7 degrees 42' 18" West for a divorce of 34.64 feet; thence
7. South 82 degrees 17' 42" East for a distance of 265.00 feet to the
said westerly line of Xxxxxx Drive; thence
8. South 7 degrees 42' 18" West for a distance of 620.57 feet along the
said westerly line of Xxxxxx Drive to the place find point of Beginning.
Being Xxx 00.00, Xxxxx 000, Xxx Xxx xx Xxxxxxxx of Middletown.
Subject to easements, restrictions and covenants of record and such state of
facts as an accurate survey may reveal.
X-0
00
XXXXXXX X
XXXXX PLAN
SEE ATTACHED
E-2
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EXHIBIT C
HVAC SPECIFICATIONS
Perimeter baseboard electric heat, central high velocity fan system with Xxxxxx
Xxxxxxx muting boxes, featuring return heat of light recaptured. System
utilizes a minimum of 10% to a maximum of 100% fresh air to maintain no less
than 68 degrees interior at zero degrees exterior, with a 15-mile per hour
wind. Air cooling shall maintain no more than 76 degrees F dry bulb with
approximately 50% relapse humidity when the outdoor conditions are 91 degrees F
dry bulb. Dual system - building standard. The above standard is for normal
office use only which shall be deemed to be one person for every, 200 sq. ft.
in any given or confined area which shall not include areas with special HVAC
requirements such as computer rooms, conference rooms, cafeterias, high density
or excessive heat producing equipment. Perimeter baseboard electric heat is
used during the winter operations and an air cooling system is utilized during
summer operations. One (1) diffuser per 250 sq. ft. of usable area. The
foregoing in Landlord's Building Standard HVAC and shall not apply to any
special HVAC requirements above Landlord's Building Standard such as computer
rooms, conference rooms, cafeterias, high density or excessive heat used during
winter operations and air cooling system. Any supplemental HVAC placed in the
Demised Premises shall be repaired and maintained by Landlord or Landlord's
contractor at Tenant's sole expense.
X-0
00
XXXXXXX X
CLEANING AND MAINTENANCE SPECIFICATIONS
Landlord will provide building standard cleaning services to the tenant area
and the ground floor lobby area in accordance with the following
specifications:
1. GENERAL CLEANING
NIGHTLY
a. Empty all waste receptacles, removing waste to designated
central location for disposal.
b. Empty and wipe clean all ashtrays. Screen and clean all sand
urns.
c. Wash and disinfect all water coolers and drinking fountains.
d. Wipe clean fingermarks, smudges, etc. from all doors and wall
surfaces.
e. Clean all tenants interior stairways.
f. Replace plastic liners in all waste-disposal cans.
WEEKLY
a. Hand-dust all office equipment, furniture, fixtures,
including panelling, shelving, window xxxxx, telephones, door
louvers, and all flat surfaces with a treated cloth or yard
duster.
2. GROUP A - Ceramic tile, marble, tempo.
GROUP B - Linotile, asphalt koroseal, plastic vinyl, rubber, wood, cork, or
other types of floors and base.
NIGHTLY
a. All floors in Group A to be swept and wet-mopped.
b. All floors in Group B to be dry mopped, using a "dustdown"
preparation, and spots to be removed by wet process.
PERIODIC
a. A wet mopping, waxing, buffing, stripping, or machine
scrubbing of the floors in Group B will be accomplished
whenever required to maintain a hard lustrous finish and will
be governed by the amount of wear due to weather and other
conditions.
X-0
00
0. VACUUMING
NIGHTLY
a. Vacuum once per week. Carpet-sweep four times per week all
rugs and carpeted areas, moving light furniture and office
equipment other than desks and file cabinets. Spot clean to
remove soluble spots which safely respond to standard
spotting procedures without risk of injury to color or
fabric.
4. HIGH DUSTING
PERIODIC
a. Dust all closet shelving and wash all closet floors when
accessible, monthly.
b. Damp dust all pictures, charts, graphs, etc., not reached in
nightly cleaning, quarterly.
c. Dust clean all vertical surfaces such as walls, partitions,
doors, door bucks, and other surfaces not reached in nightly
cleaning, quarterly.
d. Damp dust ceiling air conditioning diffusers, wall grills,
door louvers, registers, and venetian blinds, quarterly.
e. Dust exterior of light fixtures, annually.
5. WASHROOMS AND TOILETS
NIGHTLY
a. Sweep, mop, rinse, and dry floors. Polish mirrors and
bright-work. Clean enameled surfaces.
b. Wash and disinfect basins, urinals, and bowls using scouring
powder to remove stains, making certain to clean undersides
of rims of urinals and bowls.
c. Wash and disinfect both sides of all toilet seats.
d. Supply and service all toilet tissue, soap, towns, and
sanitary napkins. Sanitary napkins will be supplied in coin
operated dispensers.
e. All wash cans and all receptacles are to be emptied and new
plastic liners installed.
f. Hand dust and wash clean all partitions, tile walls,
dispenses, and receptacles in lavatories and vanity area.
g. Empty and clean sanitary disposal receptacles.
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WEEKLY
a. Wash down walls in washrooms and stalls, from trim to floor.
6. ELEVATORS
NIGHTLY
a. Clean the floor in accordance with specifications outlined
above based upon the type of flooring installed. The doors,
surfaces, and fixtures shall be dusted daily and damp wiped
weekly.
7. GLASS
PERIODIC
a. Clean both sides of all lobby glass including the building
entrance doors, nightly.
b. Clean all perimeter windows quarterly.
c. Clean glass partitions, doors, and furniture once every six
months (limited to reasonable quantities).
8. MISCELLANEOUS
a. Check all stairwells and landings nightly throughout entire
demised area, and keep in clean condition. All stairways and
landings will be dry mopped nightly. Railings, ledges, and
equipment will be dusted nightly. These areas will be wet
mopped weekly, scrubbed when necessary, and shall be waxed
and buffed weekly where required.
b. Wipe down mail chute and mail depository nightly.
c. On completion of work, all slop sinks are to be thoroughly
cleaned, and cleaning equipment to be stored needy in
designated locations.
d. All cleaning services except those performed by day porters,
window cleaners, and matrons are to be performed nightly,
five nights per week No Saturday, Sunday or bank holiday
service to be provided. In no event shall performance of any
cleaning service interfere with Tenant's normal business
operation.
e. The Contractor or Landlord is to furnish all necessary
approved cleaning materials, implements, and machinery for
the satisfactory completion of the work. This includes
scaffolding, vacuum machines, scrubbing machines, etc.
f. Contractor shall furnish proof of liability and property
damage insurance suitable to the bank and Xxxxxxx'x
Compensation Insurance in amounts required under the laws of
New Jersey.
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g. Tenant will be charged for cleaning services in excess of the
specifications outlined above.
h. Tenant will be charged for the incremental cost to clean any
areas of the Demised Premises used for special purposes
requiring more difficult cleaning work than office areas
including, but not limited to, private toilets and showers,
dining areas, cafeteria, kitchen, etc.
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EXHIBIT E
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors, elevators, and escalators
of the Building are limited to ingress to and egress from the tenants' demised
premises for the tenants and their employees, licensees, and invitees, and no
tenant shall use or permit the use of the entrances, corridors, escalators, or
elevators for any other purpose. No tenant shall invite to the tenant's demised
premises, or permit the visit of, persons in such numbers or under such
conditions as to interfere with the use and enjoyment of any of the plazas,
entrances, corridors, escalators, elevators, and other facilities of the
Building by other tenants. Fire exits and stairways are for emergency use only,
and they shall not be used for any other purpose by the tenants, their
employees, licensees, or invitees. No tenant shall encumber or obstruct, or
permit the encumbrance or obstruction of any of the sidewalks, plazas,
entrances, corridors, escalators, elevators, fire exits, or stairways of the
Building. The Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best
for the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building outside of ordinary
business hours to any person not having a pass issued by the Landlord or the
tenant whose demised premises are to be entered or not otherwise property
identified, and may require all persons admitted to or leaving the Building
outside of ordinary business hours to register. Any person whose presence in
the Building at any time shall, in the judgment of the Landlord, be prejudicial
to the safety, character, reputation, and interests of the Building or of its
tenants may be denied access to the Building or may be ejected therefrom. In
case of invasion, riot, public excitement, or other commotion, the Landlord may
prevent all access to the Building during the continuance of the same, by
closing the doors or otherwise, for the safety of the tenants and protection of
property of the Building. The Landlord may require any person leaving the
Building with any package or other object to exhibit a pass from the tenant
from whose premises the packaging or object is being removed, but the
establishment and enforcement of such requirement shall not impose any
responsibilities on the Landlord for the protection of any tenant against the
removal of property from the premises of the tenant. The Landlord shall in no
way be liable to any tenant for damages or loss arising from the admission,
exclusion, or ejection of any person to or from the tenant's premises or the
Building under the provisions of this rule. Canvassing, soliciting, or peddling
in the Building is prohibited, and every tenant shall cooperate to prevent the
same.
3. No tenant shall obtain or accept for use in its demised premises ice, food
for on premises preparation other than warming, beverage towel, barbering, boot
blackening, floor polishing, lighting maintenance, cleaning, or other similar
services from any persons not authorized by the Landlord in writing to furnish
such services, provided that the charges for such services by persons
authorized by the Landlord are not excessive and where appropriate and
consonant with the security and proper operation of the Building sufficient
persons are so authorized for the same service to provide tenants with a
reasonably competitive selection. Such services shall be furnished only at such
hours, in such places within the Tenant's Demised
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Premises and under such reasonable regulations as may be fixed by the Landlord.
Tenant may have a coffee service, subject to Landlord's approval, and a kitchen
for the use of its employees commensurate with normal office use.
4. The cost of repairing any damage to the public portions of the Building or
the public facilities or to any facilities in common with other tenants, caused
by a tenant or the employees, licensees, or invitees of the tenant shall be
paid by such tenant.
5. No lettering, sign, advertisement, notice or object shall be displayed in or
on the windows or doors, or on the outside of any tenant's demised premises, or
at any point inside any tenant's premises where the same might be visible
outside of such demised premises, except that the name of the tenant may be
displayed on the entrance door of the tenant's demised premises, and in the
elevator lobbies of the floors which are occupied entirely by any tenant,
subject to the approval of the Landlord as to the size, color, and style of
such display. The inscription of the name of the tenant on the door of the
tenant's demised premises shall be done by the Landlord at the expense of the
tenant.
6. No awnings or other projections over or around the windows shall be
installed by any tenant, and only such window blinds as are supplied or
permitted by the Landlord shall be used in a tenant's demised premises.
Linoleum, tile, or other floor covering shall be laid in a tenant's demised
premises only in a manner approved by the Landlord.
7. The Landlord shall have the right to prescribe the weight and position of
safes and other objects of excessive weight, and no safe or other object whose
weight exceeds the lawful load for the area upon which it would stand shall be
brought into or kept upon a tenant's demised premises. If, in the judgment of
the Landlord, it is necessary to distribute the concentrated weight of any
heavy object, the work involved in such distribution shall be done at the
expense of the tenant and in such manner as the Landlord shall determine. The
moving of safes and other heavy objects shall take place only outside of
ordinary business hours upon the same upon previous notice to the Landlord, and
the persons employed to move the same in and out of the Building shall be
reasonably acceptable to the Landlord and if so required by law, shall hold a
Master Rigger's license. Freight, furniture, business equipment, merchandise,
and bulky matter of any description shall be delivered to and removed from the
demised premises only in the freight elevators and through the service
entrances and corridors, and only during hours and in a manner approved by the
Landlord. Arrangements will be made by the Landlord with any tenant for moving
large quantities of furniture and equipment into or out of the Building.
8. No machines or mechanical equipment of any kind other than typewriters and
other ordinary business machines, may be installed or operated in any tenant's
demised premises without Landlord's prior written consent, and in no case (even
where the same are of a type so accepted or as so consented to by Landlord)
shall any machines or mechanical equipment be so placed or operated as to
disturb other tenants; but machines and mechanical equipment which may be
permitted to be installed and used in a tenant's demised premises shall be so
equipped, installed and maintained by such tenant as to prevent any disturbing
noise, vibration, or electrical or other interference from being transmitted
from such premises to any other area of the Building.
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0. No noise, including the playing of any musical instruments, radio or
television, which, in the judgment of the Landlord might disturb other tenants
in the building, shall be made or permitted by any tenant, and no cooking, other
than microwaving, shall be done in the tenant's demised premises, except as
expressly approved by the Landlord. Nothing shall be done or permitted in any
tenants' demised premises, and nothing shall be brought into or kept in any
tenants' demised premises, which would impair or interfere with any of the
Building services or the proper and economic heating, cleaning, or other
servicing of the Building or the demised premises, or the use of enjoyment by
any other tenant of any other demised premises, nor shall there be installed by
any tenant any ventilating, air conditioning, electrical or other equipment of
any kind which, in the judgment of the Landlord, might cause any such
impairment or interference. No dangerous, inflammable, combustible, or
explosive object or material shall be brought into the building by any tenant
or with the permission of any tenant. Any cuspidors or similar containers or
receptacles used in any tenants' demised premises shall be cared for and
cleaned by and at the expense of the tenant.
10. No acids, vapors, or other materials shall be discharged or permitted to be
discharged into the waste lines, vents or flues of the Building which may
damage them. The water and wash closets and other plumbing fixtures in or
serving any tenant's premises shall not be used for any purpose other than the
purposes for which they were designed or constructed, and no sweepings,
rubbish, rags, acids or other foreign substances shall be deposited therein.
11. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows in any tenants' demised premises and no lock on any door
therein shall be changed or altered in any respect. Additional keys for a
tenant's demised premises and toilet rooms shall be procured only from the
Landlord, which may make a reasonable charge therefor. Upon the termination of
a tenant's lease, all keys of the tenant's demised premises and toilet rooms
shall be delivered to the Landlord.
12. All entrance doors in each tenants' demised premises shall be left locked,
and all windows shall be left closed by the tenant when the tenant's demised
premises are not in use. Entrance doors shall not be left open at any time.
13. Hand trucks not equipped with rubber tires and side guards shall not be
used within the Building.
14. All windows in each tenant's demised premises shall be kept closed and all
blinds therein above the ground floor shall be lowered when and as reasonably
required because of the position of the sun, during the operation of the
Building air conditioning system to cool or ventilate the tenant's demised
premises.
15. The Landlord reserves the right to rescind, alter, or waive any rule or
regulation at any time prescribed for the Building when, in its judgment, it
deems it necessary, desirable, or proper for its best interest and for the best
interests of the tenants, and no alteration or waiver of any rule or regulation
in favor of one tenant shall operate as an alteration or waiver in favor of any
other tenant. The Landlord shall not be responsible to any tenant for the
non-observance or violation by any other tenant of any of the rules and
regulations at any time prescribed by the Building.
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EXHIBIT F
DEFINITIONS
(a) The term "mortgage" shall mean an indenture of mortgage and deed
of trust to a trustee to secure an issue of bonds, and the term
"mortgagee" shall mean such a trustee.
(b) The terms "include," "including," and "such as" shall each be
construed as if followed by the phrase "without being limited to."
(c) References to Landlord as having no liability to Tenant or being
without liability to Tenant, shall mean the Tenant is not entitled to
terminate this Lease, or to claim actual or constructive eviction,
partial or total, or to receive any abatement or diminution of rent,
or to be relieved in any manner of any of its other obligations
hereunder, or to be compensated.
(d) The term laws and/or requirements of public authorities and words
of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county, and borough governments and rules,
regulations, orders and/or directives of any or all departments,
subdivisions, bureaus, agencies, or office thereof, or of any other
governmental, public, or quasipublic authorities, having jurisdiction
in the premises, and/or the direction of any public officer pursuant
to law.
(e) The term requirements of insurance bodies and words of like import
shall mean rules, regulations, orders, and other requirements of the
New Jersey Board of Fire Underwriters and/or similar body performing
the same or similar functions and having jurisdiction or cognizance of
the Building and/or the Demised Premises.
(f) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good
working order and condition.
(g) Reference to termination of this Lease includes expiration or
earlier termination of the term of this Lease or cancellation of this
Lease pursuant to any of the provisions of this Lease or to law. Upon
a termination of this Lease, the term and estate granted by this Lease
shall end at noon of the date of termination as if such date were the
date of expiration of the term of this Lease and neither party shall
have any further obligation or liability to the other after such
termination (i) except as shall be expressly provided for in this
Lease, or (ii) except for such obligation as by its nature or under
the circumstances can only be, or by the provisions of this Lease, may
be performed after such termination and, in any event, unless
expressly otherwise provided in this Lease, any liability for a
payment which shall have accrued to or with respect to any period
ending at the time of termination shall survive the termination of
this Lease.
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EXHIBIT G
NON-DISTURBANCE AGREEMENT
SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT
This Agreement dated ____________________, between NEW YORK LIFE INSURANCE
COMPANY, a corporation duly organized and existing under the laws of the State
of New York, having its principal place of business at 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("New York Life"), and _____________________________ the
address of which is ______________________________ ("Tenant").
RECITALS
Tenant has entered into a lease dated _______________________ ("Lease"),
leasing part of a certain premises located in _____________________________
("Premises"). The Premises are more particularly described in said Lease;
New York Life is the holder of a certain Note secured by a Mortgage or a Deed
of Trust, Security Agreement, Assignment of Rents and Leases and Financing
Statement ("Mortgage") upon the Premises, and as provided hereafter, the
Mortgage is prior to the Tenant's Lease. Tenant desires to be assured of the
continued use and occupancy of the Premises under the terms of the Lease;
New York Life agrees to such continued use and occupancy by Tenant provided
that Tenant agrees to recognize and attorn to New York Life or a purchaser in
the event of transfer of title to the Premises by foreclosure or otherwise.
NOW, THEREFORE, for good and valuable consideration being the mutual premises
herein contained, it is agreed:
1. In the event it should become necessary to foreclose the Mortgage or New
York Life should otherwise come into possession or title to the Premises, New
York Life will not join Tenant in summary or foreclosure proceedings unless
required by law in order to obtain jurisdiction, but in such event no judgment
foreclosing the Lease will be sought, and New York Life will not disturb the
use and occupancy of Tenant under the Lease so long as Tenant is not in default
under any of the terms, covenants or conditions of the Lease and has not
prepaid the rent except monthly in advance as provided by the terms of the
Lease.
2. Tenant agrees that in the event any proceedings are brought for foreclosure
of the Mortgage, it will attorn to the purchaser as the landlord under the
Lease. The purchaser by virtue of such foreclosure shall be deemed to have
assumed and agreed to be bound, as substitute landlord, by the terms and
conditions of the Lease until the resale or other disposition of its interest
by such purchaser, except that such assumption shall not be deemed of itself an
acknowledgment of such purchaser of the validity of any then existing claims of
Tenant against any prior landlord. All rights and obligations under the Lease
shall continue as though such foreclosure proceeding had not been brought,
except as aforesaid. Tenant waives the
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provisions of any statute or rule of law now or hereafter in effect which may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease and the obligations of Tenant thereunder by reason
of any foreclosure proceeding.
3. Notwithstanding the foregoing, neither New York Life nor purchaser shall in
any event (a) be liable for any previous act or omission of any prior landlord,
(b) nor be subject to any offsets or defenses which Tenant may be entitled to
assert against any (including Landlord) prior landlord, (c) nor be bound by any
amendment to or modification of the Lease made without the prior written
consent of New York Life (d) or be bound by any payment by Tenant of any rent
in advance beyond one month's rent made subsequent to the date on which Tenant
shall have received notice that New York Life, or purchaser has succeeded to
the rights of the landlord under the Lease, it being expressly understood and
agreed that the liability of New York Life or such purchaser under the lease
covenants will be limited to such covenants as shall be applicable after such
attornment, (e) be obligated to cure any defaults of any prior landlord
(including Landlord) which occurred prior to the time that New York Life or
such other purchaser succeeded to the interest of such prior landlord under the
Lease, or (f) be liable or responsible for or with respect to the retention,
application and/or return to Tenant of any security deposit paid to any prior
landlord (including Landlord), whether or not still held by such prior
landlord, unless and until New York Life or such other purchaser has actually
received for its own account as landlord the full amount of such security
deposit.
4. Tenant acknowledges that it has notice that the Lease and the rent and all
other sums due thereunder have been assigned or are to be assigned to New York
Life as security for the Loan secured by the Mortgage. In the event that New
York Life notifies Tenant of a default under the Mortgage and demands that
Tenant pay its rent and all other sums due under the Lease to New York Life,
Tenant agrees that it will honor such demand and pay its rent and all other
sums due under the Lease directly to New York Life or as otherwise required
pursuant to such notice.
5. In all events, the liability of New York Life or any purchaser to Tenant
shall be limited and restricted to their interest in the Premises and shall in
no event exceed such interest.
6. Tenant acknowledges and agrees that notwithstanding the date of the Lease or
New York Life's knowledge thereof, the Lease shall be and remain subordinate in
all respects to the Mortgage and any modification, reinstatement, extension,
supplement, consolidation or replacement thereof as well as any advances or
readvances with interest thereof and to any other mortgage on the Premises which
may hereafter be held by New York Life.
7. Tenant will give written notice to New York Life of any default by landlord
under the lease by mailing a copy of the same by certified mail, postage
prepaid, addressed as follows (or to such other address as may be specified
from time to time by New York Life to Tenant):
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To New York Life: New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Real Estate
Upon such notice, New York Life shall be permitted and shall have the option,
in its sole and absolute discretion, to cure any such default during the period
of time during which the landlord would be permitted to cure such default, but
in any event New York Life shall have a reasonable period of time after the
receipt of such notification to cure such default.
8. The provisions of this Agreement are binding upon and shall inure to the
benefit of
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