Exhibit 10.11
AGREEMENT OF LEASE
BETWEEN
SOUTH BRUNSWICK INVESTORS, L.P. (LANDLORD)
AND
TELEPORT COMMUNICATIONS GROUP INC. (TENANT)
DATED AUGUST 19, 1996
AGREEMENT OF LEASE
BETWEEN
SOUTH BRUNSWICK INVESTORS, L.P. (LANDLORD)
AND
TELEPORT COMMUNICATIONS GROUP INC. (TENANT)
DATED AUGUST 19, 1996
TABLE OF CONTENTS
SECTION TITLE PAGE NO.
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1. DEMISED PREMISES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. LEASE TERM. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
3. FIXED RENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
4. ADDITIONAL RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
5. USE OF BUILDING 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
6. COMPLETION OF BUILDING 3. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
7. ALTERATIONS OR IMPROVEMENTS BY TENANT . . . . . . . . . . . . . . . . . . . . 2
8. COVENANTS OF LANDLORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
9. COVENANTS OF TENANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10. ASSIGNMENT AND SUBLETTING . . . . . . . . . . . . . . . . . . . . . . . . . . 5
11. EMINENT DOMAIN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
12. CASUALTY DAMAGE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
13. INSURANCE; INDEMNIFICATION OF LANDLORD; WAIVER OF SUBROGATION . . . . . . . . 6
14. INSPECTION; ACCESS; CHANGES IN BUILDING FACILITIES. . . . . . . . . . . . . . 6
15. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
16. LANDLORD'S REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
17. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT . . . . . . . . . . . . . . . . . . 8
18. TENANT'S REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
19. ESTOPPEL CERTIFICATE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
20. HOLDING OVER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
21. SURRENDER OF BUILDING 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
22. SUBORDINATION, ATTORNMENT AND NONDISTURBANCE. . . . . . . . . . . . . . . . . 8
23. BROKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
24. NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
25. [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
26. [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
27. [INTENTIONALLY OMITTED] . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
28. RENEWAL TERMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
29. SIGNS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
30. PARKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
31. ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
32. ADDITIONAL RIGHTS OF TENANT . . . . . . . . . . . . . . . . . . . . . . . . . 10
33. BUILDING 3 SECURITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
34. RESTRICTIONS ON OTHER TENANTS IN BUILDING 3 . . . . . . . . . . . . . . . . . 11
35. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
(i)
List of Exhibits
Exhibit "A": Plan of Demised Premises
Exhibit "B": Rent Schedule
Exhibit "C": Taxes, Operating Expense and Other Additional Rent
Exhibit "D": Schedule of Landlord's Work
Exhibit "E": Janitorial Specifications
Exhibit "F": Rules and Regulations
Exhibit "G": Tenant Estoppel Certificate and Statement
Exhibit "H": Property Environmental Status
Exhibit "I": HVAC Specifications
Exhibit "J": Holidays
Exhibit "K": Plan of Project and Parking Areas
Exhibit "L": Tenant Work
Exhibit "M": Form of Subordination,
Non-disturbance and Attornment Agreement
(ii)
AGREEMENT OF LEASE
THIS AGREEMENT OF LEASE ("Lease") is made this 19th day of August, 1996,
by and between SOUTH BRUNSWICK INVESTORS, L.P., a Delaware limited
partnership ("Landlord") and TELEPORT COMMUNICATIONS GROUP INC., a Delaware
corporation ("Tenant").
Background
Pursuant to a lease dated February 20, 1996 by and between Tenant and
Landlord (the "First Lease"), Tenant currently leases from Landlord certain
space (the "First Space") containing 87,550 rentable square feet in buildings
erected on certain property ("Lot #1") designated as Lot #1 on that certain
subdivision plan entitled "Plan of Minor Subdivision" prepared by Xxxx Xxxxx
Associates and recorded in the Clerk's Office of Middlesex County in Book
4300, page 868 (the "Plan"). Lot #1 comprises a portion of the Princeton
Technology Center, formerly known as South Brunswick Corporate Center,
located on Ridge Road, Dayton, New Jersey (the "Project").
Pursuant to a lease by and between Landlord and International Business
Machines ("IBM") dated August 11, 1995 (the "IBM Lease"), IBM currently
leases certain other space in the Project (the "IBM Space") containing
200,000 rentable square feet and located in buildings (the "Buildings")
erected on certain property (the "Land") designated as Lot #2 on the Plan.
The Buildings consist of one building containing 170,000 rentable square feet
("Building 1") and one building containing 30,000 rentable square feet
("Building 3"). The Land and Buildings are depicted on Exhibit "K" attached
hereto and incorporated herein by reference. The IBM Lease expires on March
31, 2002 (the "Initial IBM Lease Term"). IBM has the option to extend the
IBM Lease for either or both of the Buildings by five years.
Tenant desires to lease Building 3 for a period commencing on
___________, 1996 and terminating on December 31, 2006, with options to
extend. In connection therewith, IBM, Tenant and Landlord have agreed to
enter into the following three agreements: (i) a sublease between IBM, as
landlord, and Tenant, as tenant, for Building 3 for the remainder of the
Initial IBM Lease Term (the "IBM Sublease"), (ii) an amendment to the IBM
Lease, eliminating IBM's option to extend the IBM Lease for Building 3 at the
expiration of the Initial IBM Lease Term, and (iii) this lease agreement
between Tenant and Landlord, providing for Tenant's continued tenancy of
Building 3 after expiration of the Initial IBM Lease Term, subject to the
terms hereof.
Under the terms of the IBM Sublease, Tenant will be responsible for
constructing certain improvements in Building 3. Landlord is willing to
advance certain sums to Tenant for a portion of the cost of these
improvements, and Tenant shall thereafter reimburse Landlord for such
advances through a series of monthly payments commencing during the term of
the IBM Sublease and continuing on during the terms of both the IBM Sublease
and this Lease.
Intending to be legally bound, Landlord and Tenant agree as set forth
below.
1. DEMISED PREMISES. Landlord, for the term and subject to the provisions
and conditions hereof, leases to Tenant, and Tenant rents from Landlord,
approximately 30,000 rentable square feet of space consisting of Building 3
(depicted in Exhibit "A" attached hereto and made a part hereof), together
with rights of ingress and egress thereto, and with the right in common with
others to use, to the extent applicable, the elevators and common lobbies,
loading docks, passageways, stairways and vestibules, and to pass over and
park on those areas designated by Landlord for tenant parking.
2. LEASE TERM. The Lease Term (the "Lease Term") shall commence on April
1, 2002 (the "Commencement Date") and shall continue until December 31, 2006,
unless extended or sooner terminated as provided herein. Unless otherwise
expressly set forth herein, all obligations of Landlord and Tenant hereunder
shall commence on the Commencement Date.
3. FIXED RENT. Fixed rent (the "Fixed Rent") is payable by Tenant
beginning on the Commencement Date in monthly installments equal to
one-twelfth (1/12th) of the total annual Fixed Rent (the "Annual Fixed Rent")
payable for the applicable period as set forth in Exhibit "B" attached
hereto, without prior notice or demand, and without any setoff or deduction
whatsoever, in advance, on the first day of each month at such place as
Landlord may direct. The Annual Fixed Rent set forth herein is an annualized
amount. In addition, if the Lease Term commences on a day other than the
first day of a calendar month, Tenant shall pay to Landlord, on or before the
Commencement Date of the Lease Term, a pro rata portion of the monthly
installment of rent (including Fixed Rent and any Additional Rent, as
hereinafter defined), such pro rata portion to be based on the actual number
of calendar days remaining in such partial month after the Commencement Date
of the Lease Term. If the Lease Term shall expire on other than the last day
of a calendar month, such monthly installment of Fixed Rent and Additional
Rent shall be prorated for each calendar day of such partial month. Upon the
second occurrence and those thereafter within any six-month period during the
Lease Term, if any portion of Fixed Rent, Additional Rent or any other sum
payable to Landlord hereunder shall be due and unpaid for more than ten (10)
days, Tenant shall pay to Landlord, without notice or demand, a late charge
equal to 5% of such overdue amount to partially compensate Landlord for its
administrative costs. Tenant acknowledges that such late fee is a reasonable
approximation of such costs and does not constitute a penalty. In addition,
all amounts overdue and unpaid in excess of ten (10) days after notice by
Landlord that such amounts are overdue and unpaid shall bear interest at a
rate equal to two percent (2%) per annum greater than the prime rate of
interest as published in the Wall Street Journal, eastern edition, from time
to time (the "Default Rate"), as the same may change from time to time, from
the due date until the date of payment thereof by Tenant, provided, however,
that nothing contained herein or elsewhere in this Lease shall be construed
or implemented in such a manner as to allow Landlord to charge or receive
interest in excess of the maximum legal rate then allowed by law. Landlord
and Tenant understand and agree that memos written on rental checks or any
other payment forms delivered to Landlord do not and shall not, throughout
the Lease Term hereunder, constitute satisfaction of any current or
outstanding debt of Tenant pursuant to this Lease, and, provided further that
any such memo shall not preclude Landlord from recovering any balance of any
sum or sums due under this Lease. In addition, a letter or similar type
statement accompanying any rental check or payment form delivered to Landlord
pursuant to this Lease also shall have no force or effect under this Lease as
such may relate to the satisfaction of any debt of Tenant hereunder.
4. ADDITIONAL RENT. Tenant shall pay, without any setoff or deduction
whatsoever, (i) the Tax Adjustment and the Operating Expense Adjustment, as
such terms are defined in Exhibit "C" hereto, in the amounts and in the
manner set forth in Exhibit "C", and (ii) the Tenant Improvement Payments, as
such term is defined in Exhibit "L" hereto, in the amounts and in the manner
set forth in Exhibit "L". The Tax Adjustment, the Operating Expense
Adjustment, the Tenant Improvement Payments and all other sums due hereunder
(other than Fixed Rent) are sometimes hereinafter referred to together as the
Additional Rent.
5. USE OF BUILDING 3.
5.1. Subject to all other restrictions set forth in this Lease, the
Tenant may use Building 3 only for the installation, operation and
maintenance (including repair and replacement) of equipment and facilities in
connection with Tenant's telecommunications business, executive and general
office uses and any other legally permitted uses related thereto, and for no
other purpose. For purposes of this Lease, the term "general office use"
shall not include use as a school, college, university or educational
institution of any type other than the training of Tenant's customers, agents
and employees, use as a governmental agency, use for any purpose which is not
consistent
with the operation of the Buildings as first-class office buildings, use as
an employment, recruitment or temporary help service or agency, or any use
involving regular traffic by the general public.
5.2. Tenant shall not use or permit any use of Building 3 which creates
any safety or environmental hazard, or which would: (i) be dangerous to the
Buildings or other tenants in the Buildings, (ii) be disturbing to other
tenants of the Buildings, or (iii) cause any increase in the premium cost for
any insurance which Landlord may then have in effect with respect to the
Buildings generally, unless Tenant refuses to pay such additional costs.
5.3. This Lease includes the right of Tenant to use the Common Building
Facilities. The words "Common Building Facilities" shall mean all of the
facilities in or around Building 3 designed and intended for use by tenants
of Building 3 in common with Landlord and other tenants of Building 3, if
any, including corridors; elevators; fire stairs; telephone and electric
closets; telephone trunk lines and electric risers; aisles; walkways; truck
docks; plazas; the roof and parking areas dedicated for use by occupants of
and visitors to the Buildings (the "Building Parking Area") to the extent not
reserved for exclusive use by Landlord or others; courts; restrooms; service
areas; lobbies; landscaped areas, and all other common and service areas of
Building 3 intended for such use on the date hereof; excluding, however,
restrooms, lobbies, corridors and telephone and electric closets on floors
leased entirely by Tenant which shall be for the exclusive use of Tenant and
shall not be used in common with other tenants or occupants of the Buildings.
5.4. (a) Tenant shall comply with all statutes, rules, ordinances,
orders, codes and regulations, other governmental requirements and legal
requirements and standards issued thereunder (collectively referred to in
this Lease as the "Laws") which are applicable to Tenant's use and occupancy
of Building 3. Nothing herein shall be deemed to impose any obligation upon
Tenant for any portion of Building 3 for which Tenant is not otherwise
responsible pursuant to the provisions of this Lease or for any restorations,
alterations, replacements or repairs to the Buildings required to be made by
Landlord pursuant to the provisions of this Lease.
(b) (i) Except as otherwise set forth herein, Landlord shall
comply with all Laws which (1) affect the Buildings and Land or (2) relate to
the performance by Landlord of any duties or obligations to be performed by
Landlord under this Lease. Landlord represents that, except as otherwise set
forth in Exhibit "H" and with regard to matters covered by the Americans with
Disabilities Act, the Buildings and Land are in compliance with all
applicable Laws as of the date of this Lease. Except as otherwise set forth
in Exhibit "H", Landlord shall be responsible for ensuring that the
Buildings and Land comply with all design, construction, energy conservation,
environmental, fire, health, and safety Laws, provided, however, that Tenant
shall be responsible for ensuring, at its sole cost, that the Tenant Work (as
defined in Exhibit "L") and any other alterations, additions or improvements
to the Buildings or on the Land constructed by Tenant (collectively with the
Tenant Work, "Tenant Improvements") comply, at all times from the date hereof
to the date of expiration of this Lease, with all design, construction,
energy conservation, environmental, fire, health, and safety Laws and the
requirements of Landlord's insurance underwriters.
(ii) All boilers and other pressure vessel equipment shall be
constructed and maintained by Landlord in accordance with ASME Standards and
Codes.
(iii) Landlord shall regularly inspect and maintain the HVAC
system and treat the cooling tower with U.S. Environmental Protection Agency
registered chemicals to prevent the buildup of slime, algae, and bacteria,
and shall follow the current practices of the American Society of Heating,
Refrigeration and Air Conditioning Engineers.
6. COMPLETION OF BUILDING 3. Tenant agrees to accept possession of the
Building 3 in an "AS IS" condition. Notwithstanding the foregoing, Landlord
agrees that it shall promptly correct any latent defects in Building 3, other
than those relating to Tenant Improvements, provided that such defects are
reported to Landlord within nine months after the date hereof.
7. ALTERATIONS OR IMPROVEMENTS BY TENANT.
7.1. (a) Tenant shall not make any alterations, additions or
improvements to Building 3 in excess of $25,000 without the prior written
approval of Landlord, and then only in accordance with plans and
specifications previously approved in writing by Landlord, which approval
shall not be unreasonably withheld or delayed, provided, however, that such
approval may be subject to reasonable conditions including, without
limitation, that Tenant be required to pay for any out-of-pocket cost to
Landlord occasioned thereby. Notwithstanding the foregoing, Landlord agrees
that Tenant shall be permitted, if necessary, to reinforce a portion of the
floor(s) within Building 3 to support battery stacks and other equipment.
7.2. (a) Notwithstanding the foregoing, Tenant shall not alter,
improve, replace or change the Structure except in accordance with this
Section 7.2. Tenant may make alterations, improvements, replacements and
other changes to the Structure, provided that Landlord consents thereto,
which consent may be withheld at Landlord's reasonable discretion.
(b) If Tenant desires to make alterations, improvements,
replacements or other changes to the Structure, Tenant shall make a request
for Landlord's approval by submitting to Landlord a list of proposed
contractors and detailed plans and specifications for the work to be
performed. Landlord shall respond within ten (10) business days from receipt
of the same, approving those contractors and those portions of the work that
are acceptable and disapproving those contractors and portions of the work
that are, in Landlord's reasonable judgment, unacceptable, and specifying in
detail the nature of Landlord's objection.
(c) The word "Structure" shall mean bearing walls, roof, exterior
walls, support beams, foundation, window frames, floor slabs and support
columns of the Buildings.
7.3. Regardless of whether or not Tenant is required under this Lease to
obtain Landlord's consent to the construction of a particular Tenant
Improvement, Tenant shall, in all cases, prior to construction of the Tenant
Improvement, provide Landlord, with (i) notice of its intent to construct
such Tenant Improvement, and (ii) copies of all permits required to construct
the Tenant Improvement. All Tenant Improvements shall be constructed in
accordance with the requirements of all applicable laws, ordinances,
regulations, codes and other requirements of governmental authorities and
with the regulations of Landlord's insurance underwriter. In addition, all
Tenant Improvements shall be constructed in a thorough, first-class and
workmanlike manner and shall be in good and usable condition at the date of
completion. At any time and from time to time during the construction of
Tenant Improvements, Landlord, Landlord's architect and Landlord's general
contractor may enter Building 3 and inspect the Tenant Improvements for the
protection of Building 3. Such inspection shall, however, be for Landlord's
benefit only and may not be relied upon by Tenant or any other party. When
constructing any Tenant Improvements, Tenant shall comply with the
requirements of Sections 7, 8, 9, 10, 11 and 12 of Exhibit "L" attached
hereto.
7.4. Tenant Improvements shall be deemed part of Building 3 and shall
not be removed by Tenant. Notwithstanding the foregoing, by notice to Tenant
given at the time of approval, Landlord may require that Tenant either: (i)
remove any such alterations, additions or improvements, repair any damage to
Building 3 occasioned by their installation or removal, and restore Building
3 to substantially the same condition as existed prior to the time when any
such alterations, additions or improvements were made, or (ii) reimburse
Landlord for the cost of such removal, repair and restoration. With regard
to any alterations, additions or improvements which Tenant is entitled to
construct without Landlord consent, Tenant may, prior to constructing such
alterations, additions or
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improvements, request that Landlord inform Tenant whether it will require
that such alterations, additions or improvements be removed and Landlord
shall, with reasonable promptness, so inform Tenant.
7.5. As used in this Lease, the term "Tenant Improvements" shall not
include Tenant's moveable personal property, trade fixtures and equipment
(collectively, "Tenant's Owned Property"). Tenant's Owned Property shall be
owned by and remain the property of Tenant and, subject to the provisions of
Section 15, Tenant may remove all or any of Tenant's Owned Property at any
time during the Term. If Tenant removes such things or any of them, Tenant
shall not be required to remove pipes, wires and the like from the walls,
ceilings or floors, provided Tenant properly cuts, disconnects and caps such
pipes and wires and seals them off as required by Laws and Landlord's
insurance underwriters.
7.6. In the event of a dispute arising concerning the provisions of this
Section 7, either party shall be permitted to submit such dispute to
arbitration under the provisions of Section 31 hereof.
8. COVENANTS OF LANDLORD.
8.1. Tenant shall be granted access to Building 3, including facilities
for loading, unloading, delivery and pickup in the ordinary course of
business, twenty-four (24) hours per day, seven (7) days a week. Landlord
shall provide passenger elevator service twenty-four (24) hours a day, seven
(7) days a week, subject to reasonable outages for repairs or maintenance.
8.2. Landlord will supply, for normal office use, heat or air
conditioning Monday through Friday from 7:00 a.m. to 6:00 p.m., and Saturday
from 8:00 a.m. to 1:00 p.m. local time excluding Holidays (as defined in
Exhibit "J"), elevator service (where applicable), janitorial and cleaning
services as set forth in Exhibit "E" hereto, electricity, and hot and cold
potable water, all in amounts consistent with services provided in similar
first-class buildings in the community, provided that: (i) Landlord shall not
be liable for failure to supply or interruption of any such service by reason
of any cause beyond Landlord's reasonable control and Landlord shall not be
liable for consequential damages in any event; (ii) Landlord shall install
meters to measure the electricity consumed in Building 3 and Tenant shall pay
directly for the cost of all electrical consumption therein; (iii) if Tenant
requires janitorial and cleaning services beyond those provided by Landlord,
Tenant shall arrange for such additional services through Landlord, and
Tenant shall pay Landlord for such additional services upon receipt of
billing therefor; and (iv) if Tenant requires installation of a separate or
supplementary heating, cooling, ventilating and/or air conditioning system
Tenant shall pay all costs in connection with the furnishing, installation
and operation thereof.
8.3. In the event that Tenant requires heat or air conditioning beyond
the hours set forth in Section 8.2 above, Tenant shall so notify Landlord (i)
before noon on the business day when such service is required for the evening
or (ii) by noon of the preceding business day when such service is required
on a Saturday, Sunday or Holiday, and Tenant shall pay Landlord for
Landlord's actual costs incurred thereby, within thirty (30) days of being
billed therefor. Any such xxxx shall include a tabulation of the days and
hours upon which such services were provided.
8.4. Landlord shall make all necessary repairs to the exterior windows,
walls and other structural parts of Building 3, the plumbing, heating,
ventilating, air conditioning and electrical systems of Building 3, the roof
of Building 3, the common areas of Building 3, and the parking areas,
sidewalks and other common areas of the Land, and shall keep all such common
areas reasonably free of debris, ice and snow. Notwithstanding the foregoing,
Landlord shall not be obligated to make any such repair until the expiration
of a reasonable period of time after Landlord becomes aware that such repair
is needed. Furthermore, in no event shall Landlord be obligated to repair
any damage caused by any act, omission or negligence of Tenant or any of its
employees, agents, invitees, licensees, subtenants or contractors, or any
defect or damage attributable to failure by Tenant or any of its employees,
agents, invitees, licensees, subtenants or contractors to construct any
Tenant Improvements in compliance with the terms of this Lease. Tenant shall
reimburse Landlord for all costs and expenses of repairing and replacing all
damage or injury to Building 3 caused by Tenant or any of its employees,
agents, invitees, licensees, subtenants or contractors, or by all or any of
them moving in or out of Building 3, or by installation or removal of
furniture, fixtures or other property by all or any of them, or by the
failure of all or any of them to construct any Tenant Improvements in
compliance with the terms of this Lease. Such costs and expenses shall be
payable as Additional Rent hereunder and shall be paid by Tenant within
thirty (30) days after Tenant is billed therefor.
8.5. Tenant, upon paying the Annual Fixed Rent and all Additional Rent
when due, and upon observing, keeping and performing when required all of the
covenants, agreements and conditions of this Lease on Tenant's part to be
observed, kept and performed, shall quietly have and enjoy Building 3
throughout the Lease Term without hindrance or molestation by Landlord or by
anyone claiming in, through or under Landlord, subject, however, to the terms
of this Lease.
8.6. (a) If, after notice by Tenant, Landlord fails or refuses to make
any repairs, restoration, or replacements which it is required to make under
Section 8 or elsewhere in this Lease (other than repairs following a
casualty, which are covered in Section 12) within thirty (30) days, or if
such repairs, restorations or replacements cannot reasonably be made within
thirty (30) days, if Landlord shall not commence such repairs within thirty
(30) days and thereafter diligently pursue the same to completion, Tenant may
declare an event of default and cure such default. Landlord shall reimburse
Tenant for the cost of such cure within thirty (30) days after Landlord
receives Tenant's invoice.
(b) In the event of a dispute arising concerning the provisions of
this Section 8.6, either party shall be permitted to submit such dispute to
arbitration under the provisions of Section 31 hereof.
8.7. If, by reason of an emergency, repairs, restoration, or
replacements become necessary and by the provisions hereof are the
responsibility of Landlord, Tenant may make such repairs, restoration or
replacements which, in the opinion of Tenant, are necessary for the
preservation of Building 3, or of the safety or health of the occupants in
the Project, or of Tenant's Owned Property, or are required by the Laws;
provided, however, that Tenant shall first make a reasonable effort to inform
Landlord before making them.
9. COVENANTS OF TENANT.
9.1. Except as otherwise set forth in Section 8.4 hereof, Tenant will,
at Tenant's sole cost and expense, keep Building 3 and the fixtures and
appurtenances therein in good order and repair at all times, reasonable wear
and tear excepted. Notwithstanding the foregoing, Landlord may, upon thirty
(30) days' written notice (except in case of emergency), but shall not be
required to, perform all or any portion of Tenant's repair obligations as set
forth above on Tenant's behalf. In such event, following the performance of
such repairs by Landlord, Landlord shall charge Tenant the amount of the
expense therefor. If Tenant fails to pay such amount within thirty (30) days
following delivery of Landlord's invoice therefor, such amount shall
thereafter bear interest at the Default Rate until the date of payment by
Tenant. In the event Landlord does not elect to perform all or any portion
of Tenant's repair obligations as set forth above and Tenant fails to make
such repairs within thirty (30) days of the date such work becomes necessary,
Landlord may, but shall not be required to, perform such work and charge the
amount of the expense therefor, with interest accruing and payable thereon,
all in accordance with Section 19 below;
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9.2. Tenant will comply with any covenants, easements and restrictions
governing the Land or Buildings (including, but not limited to (i) that
certain Declaration of Cross-Easements, Covenants and Restrictions of South
Brunswick Corporate Center made by Landlord, dated October 9, 1995 and
recorded in the Clerk's Office of Middlesex County in Deed Book 4304, page
745 and (ii) that certain Declaration of Certain Easements and Covenants of
South Brunswick Corporate Center made by Landlord, dated October 9, 1995 and
recorded in the Clerk's Office of Middlesex County in Deed Book 4304, page
773) and shall indemnify, defend and hold Landlord harmless from all
consequences from Tenant's failure to do so;
9.3. Tenant will promptly notify Landlord of any damage to or defects in
Building 3 of which it becomes aware, any notices of violation received by
Tenant and any injuries to person or property which occur therein or claims
relating thereto;
9.4. Tenant will not place within or bring into Building 3 any machinery
or other personalty having a weight in excess of the design capacity of
Building 3, such capacity on above-grade floors being 100 pounds per square
foot, without the prior written consent of Landlord and without full
compliance with all applicable building security measures;
9.5. Tenant will comply with the rules and regulations set forth in
Exhibit "F" hereto and with all reasonable changes and additions thereto upon
notice by Landlord to Tenant (such rules and regulations, together with all
changes and additions thereto, being part of this Lease);
9.6. Tenant will comply with all reasonable recommendations of
Landlord's or Tenant's insurance carriers relating to layout, use, storage of
materials and maintenance of Building 3; and
9.7. Tenant further agrees to the following:
(a) As used in this Lease, the following terms shall have the
following meanings:
(i) "Environmental Laws" shall mean all federal, state or
local laws, regulations, rules, ordinances or administrative or judicial
rulings relating to (A) releases or threatened releases of Hazardous
Materials or materials containing Hazardous Materials, including, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act or the New Jersey Spill Compensation and Control Act; (B) the
manufacture, handling, transport, use, treatment, storage or disposal of
Hazardous Materials or materials containing Hazardous Materials (C) the
transfer of industrial facilities, including, without limitation, ISRA; (D)
storage tanks; or (E) otherwise relating to the environment or to the
protection of human health.
(ii) "Hazardous Materials" shall mean all chemical,
biological, organic, inorganic, infectious, toxic or hazardous pollutants,
contaminants, chemicals, substances, materials or wastes of whatever kind or
nature, whether liquid, solid or gaseous, including, without limitation,
pollutants, contaminants, chemicals, substances, materials and wastes
regulated under, defined, listed or included in any Environmental Laws.
Hazardous Materials shall include, without limitation, asbestos,
polychlorinated biphenyls, and petroleum products.
(iii) "Hazardous Materials Inventory" shall mean a
comprehensive inventory of all Hazardous Materials used, generated, stored,
treated or disposed of by Tenant at or about Building 3.
(iv) "ISRA" shall mean the New Jersey Industrial Site Recovery
Act, N.J.S.A. 13:1K-6 et seq. and the regulations promulgated thereunder, as
amended from time to time.
(v) "Losses" shall mean all liabilities, obligations, losses,
damages, penalties, actions, judgment, lawsuits, costs, expenses,
disbursements, orders or decrees, including, without limitation, attorneys'
and consultants' fees and expenses.
(vi) "NJDEP" shall mean the New Jersey Department of
Environmental Protection.
(b) Tenant shall not use Building 3 or the Land for the
generation, use, manufacture, recycling, transportation, treatment, storage,
handling, discharge or disposal of any Hazardous Materials; provided,
however, that the foregoing shall not be deemed or construed to prohibit
Tenant's possession or use of products containing Hazardous Materials so long
as such products are commonly found in an office environment or
non-manufacturing telecommunications business and are handled, stored, used
and disposed of in compliance with all Environmental Laws. Furthermore,
Tenant will not engage in any activity at Building 3 or the Land which poses
a risk of damage to the environment or which would subject Tenant, Landlord,
Building 3 or the Land to responsibility or liability under any Environmental
Law.
(c) Tenant shall (i) comply with all Environmental Laws in
connection with Tenant's use or occupancy of Building 3 and the Land; (ii)
obtain, maintain in full force and effect, and comply with, all permits
required under Environmental Laws; (iii) comply with all record keeping and
reporting requirements imposed by Environmental Laws concerning the use,
handling, treatment, storage, disposal or release of Hazardous Materials at
Building 3 and the Land; (iv) report to Landlord any release or discharge of
Hazardous Materials within two business days of such discharge or release;
(v) provide to Landlord copies of all written reports concerning such
discharge of Hazardous Materials that are required to be filed with
Governmental Entities under Environmental Laws; (vi) maintain and annually
update a Hazardous Materials Inventory with respect to Hazardous Materials
used, generated, treated, stored or disposed of at Building 3 and the Land;
and (vii) make available to Landlord for inspection and copying (at
Landlord's expense), upon reasonable notice and at reasonable times, such
Hazardous Materials Inventory and any other reports, inventories or other
records required to be kept under Environmental Laws concerning the use,
generation, treatment, storage, disposal or release of Hazardous Materials.
(d) In the event that Tenant's operations at Building 3 or the
Land cause any part of Building 3 or the Land to be deemed an industrial
establishment (as such term is defined by ISRA) and such Tenant takes any
action that triggers the applicability of ISRA, Tenant shall: (i) take all
steps necessary to achieve compliance with ISRA with respect to such
transaction or event; (ii) pay all costs and fees associated with achieving
compliance with ISRA in connection with such matter; and (iii) provide
Landlord with copies of: (a) all correspondence with the NJDEP; (b) all
field and laboratory data generated by or on behalf of Tenant; and (c) all
reports, summaries proposals and recommendations submitted to the NJDEP in
connection with such matter.
(e) Tenant does hereby agree to indemnify, defend and save
harmless Landlord from any and all Losses resulting from any claim, demand,
liability, obligation, right or cause of action, including but not limited to
governmental action or other third party action, (collectively, "Claims"),
that is asserted against or incurred by Landlord, Building 3 or the Land as a
result of Tenant's breach of any representation, warranty, or covenant
hereof; or arising out of the operations or activities or presence of Tenant
or any assignee, sublessee, agent, or representative of Tenant at Building 3
or the Land; or arising from environmental conditions or violations at
Building 3. including without limitation the presence of Hazardous Materials
at, on, or under Building 3 or the discharge or release of Hazardous
Materials from Building 3, provided, however, that Tenant shall not be
obligated to indemnify Landlord under this paragraph if (i) the Claim arises
due to events or conditions which occurred prior to the date of this Lease or
(ii) Tenant is not responsible for such Claim under Environmental Laws,
except as consequence of any negligence or willful misconduct of Landlord.
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(f) Landlord does hereby agree to indemnify and save harmless
Tenant from all Losses resulting from any Claims that are asserted against
Tenant or Building 3 as a result of the presence of Hazardous Materials at
Building 3 (i) deposited at Building 3 prior to the date of this Lease or
(ii) for which Tenant is not responsible under Environmental Laws. To the
best of Landlord's knowledge, Building 3 is in compliance with Environmental
Laws as of the date hereof.
(g) The indemnities contained herein and the environmental
representations, warranties and covenants of Landlord and Tenant shall
survive termination of this Lease.
(h) Exhibit "H" contains a summary of certain environmental
conditions on the Project concerning which IBM has certain remediation
obligations pursuant to an agreement with Landlord and various agreements
with NJDEP.
10. ASSIGNMENT AND SUBLETTING.
10.1. Tenant shall not assign, pledge, mortgage or otherwise
transfer or encumber this Lease, nor sublet all or any part of Building 3 or
permit the same to be occupied or used by anyone other than Tenant or its
employees, without Landlord's prior written consent, which consent shall not
be unreasonably withheld or delayed. It will not be unreasonable for Landlord
to withhold its consent if the financial responsibility or business of a
proposed assignee or subtenant is unsatisfactory to Landlord, or if Landlord
deems such business not to be consonant with that of other tenants in the
Buildings.
10.2. Tenant's request for consent to any sublet or assignment shall
be in writing and shall contain the name, address, and description of the
business of the proposed assignee or subtenant, its most recent financial
statement and other evidence of financial responsibility, its intended use of
Building 3, and the terms and conditions of the proposed assignment or
subletting. Within twenty (20) days from receipt of such request, Landlord
shall either: (1) grant or refuse consent; or (2) if the request is for
consent to a proposed assignment of this Lease, to terminate this Lease and
the Lease Term effective as of the last day of the third month following the
month in which the request was received.
10.3. Each assignee hereunder shall assume and be deemed to have
assumed this Lease and shall be and remain liable jointly and severally with
Tenant for all payments and for the due performance of all terms, covenants,
conditions and provisions herein contained on Tenant's part to be observed
and performed. No assignment shall be binding upon Landlord unless the
assignee shall deliver to Landlord an instrument in form and substance
satisfactory to Landlord containing a covenant of assumption by the assignee,
but the failure or refusal of assignee to execute and deliver the same shall
not release assignee from its liability as set forth herein. Any sublease or
assignment document shall comply with the requirements of Section 5 of this
Lease. Fifty percent (50%) of any profit or additional consideration or rent
in excess of the Fixed Rent or Additional Rent payable by Tenant hereunder
which is payable to Tenant as a result of any assignment or subletting
(excluding any assignment or subletting to Related Parties (as defined
hereafter)) after subtraction of Tenant's subleasing expenses, shall be paid
to Landlord as Additional Rent when received by Tenant; provided that, in no
event shall any rental paid for use of Tenant's Owned Property be payable to
Landlord. Any such purported lease, sublease, license, concession or other
agreement shall be absolutely void and ineffective as a conveyance of any
right or interest in the possession, use or occupancy of any part of Building
3. Notwithstanding the foregoing, Tenant shall have the right to place the
telecommunication equipment of other tenants and/or other of its customers in
Building 3 and such placement shall not be deemed an assignment or sublease,
provided, however, that except for a right of use, neither such placement nor
any agreement between Tenant and any other tenant or customer with regard to
such placement shall grant to any such tenant or customer any rights
whatsoever in or to Building 3.
10.4. Any consent by Landlord hereunder shall not constitute a
waiver of strict future compliance by Tenant with the provisions of this
Section or a release of Tenant from the full performance by Tenant of any of
the terms, covenants, provisions, or conditions in this Lease contained.
10.5. Notwithstanding any of the foregoing, Tenant may assign or
sublet this Agreement, or any portion thereof, without Landlord's consent, to
any entity (i) which controls, is controlled by or is under common control
with Tenant, (ii) resulting from the merger or consolidation with Tenant, or
to any entity which acquires all of the assets of Tenant as a going concern
or the assets of the business that is being conducted in Building 3, (iii) in
which Tenant, or any entity affiliated with Tenant has at least a ten percent
(10%) ownership interest, or (iv) which has entered into a management
contract with Tenant or any entity in which Tenant, or any entity having at
least a ten percent (10%) ownership interest in Tenant, has at least a ten
percent (10%) ownership interest (collectively, "Related Parties"). Any such
assignment or sublease shall not, in any way, affect or limit the liability
of Tenant under the terms of this Agreement.
11. EMINENT DOMAIN.
11.1. If the whole or more than fifty percent (50%) of Building 3 or
the Land (or use or occupancy of Building 3) shall be taken or condemned by
any governmental or quasi-governmental authority for any public or
quasi-public use or purpose (including sale under threat of such a taking),
or if the owner elects to convey title to the condemnor by a deed in lieu of
condemnation, then this Lease shall cease and terminate on the earlier of (i)
the date when title vests in such governmental or quasi-governmental
authority or (ii) the date upon which such governmental or quasi-governmental
authority takes possession. The Fixed Rent and Additional Rent shall be
abated from and after such date.
11.2. If fifty percent (50%) or less of Building 3 or the Land shall
be taken or condemned by any governmental or quasi-governmental authority for
any public or quasi-public use or purpose (including sale under threat of
such a taking), or if the owner elects to convey title to the condemnor by a
deed in lieu of condemnation, and as a result thereof, in Tenant's reasonable
judgment, Building 3 cannot be used for Tenant's permitted use as set forth
herein, then this Lease shall cease and terminate on the earlier of (i) the
date when title vests in such governmental or quasi-governmental authority or
(ii) the date upon which such governmental or quasi-governmental authority
takes possession. The Fixed Rent and Additional Rent shall be abated from
and after such date.
11.3. If fifty percent (50%) or less of Building 3, or the Land
shall be taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose (including sale under
threat of such a taking), or if the owner elects to convey title to the
condemnor by a deed in lieu of condemnation, and this Lease is not terminated
as set forth in Section 11.2 above, the Fixed Rent and Tenant's Proportionate
Share (as defined in Exhibit "C") shall be equitably adjusted from and after
the earlier of (i) the date when title vests in such governmental or
quasi-governmental authority or (ii) the date upon which such governmental or
quasi-governmental authority takes possession. The Lease shall otherwise
continue in full force and effect.
11.4. Tenant shall have no claim against Landlord for any portion of
the amount that may be awarded as damages as a result of any governmental or
quasi-governmental taking or condemnation (or sale under threat of such
taking or condemnation) and all rights of Tenant or damages therefore are
hereby assigned by Tenant to Landlord. The foregoing shall not, however,
deprive Tenant of any separate award for moving expenses, dislocation damages
or for any other award which would not reduce the award payable to Landlord.
5
12. CASUALTY DAMAGE.
12.1. In the event of damage to or destruction of Building 3 caused
by fire or other casualty, or any such damage or destruction to the
facilities necessary to provide services and normal access to Building 3 in
accordance herewith, Landlord shall undertake to make repairs and
restorations with reasonable diligence within two hundred forty (240) days of
the casualty as hereinafter provided, unless this Lease has been terminated
by Landlord or Tenant as hereinafter provided or unless any mortgagee which
is entitled to receive casualty insurance proceeds fails to make available to
Landlord a sufficient amount of such proceeds to cover the cost of such
repairs and restoration. If (i) the damage is of such nature or extent that,
in Landlord's reasonable judgment, more than two hundred forty (240) days
would be required (with normal work crews and hours) to repair and restore
the part of Building 3 which has been damaged, or (ii) Building 3 is so
damaged that, in Landlord's reasonable judgment, it is uneconomical to
restore or repair Building 3, as the case may be, or (iii) less than two (2)
years then remain on the current Lease Term, Landlord shall so advise Tenant
promptly, and either party, in the case described in clause (i) above, or
Landlord, in the cases described in clauses (ii) or (iii) above, within
thirty (30) days after any such damage or destruction, shall have the right
to terminate this Lease by written notice to the other, as of the date
specified in such notice, which termination date shall be no later than ten
(10) days after the date of such notice. In the event that less than two (2)
years remain on the current Lease Term and the damage is of such a nature or
extent that, in Landlord's reasonable judgment, more than ninety (90) days
would be required (with normal work crews) to repair and restore the part of
Building 3 which has been damaged, Tenant shall have the right to terminate
this Lease by written notice to Landlord, as of the date specified in such
notice, which termination date shall be no later than ten (10) days after the
date of such notice.
12.2. In the event of fire or other casualty damage, provided this
Lease is not terminated pursuant to the terms of this Section and is
otherwise in full force and effect, and sufficient casualty insurance
proceeds are available for application to such restoration or repair,
Landlord shall proceed diligently to restore Building 3 to substantially its
condition prior to the occurrence of the damage. Tenant shall be responsible
for the repair or restoration of all of Tenant's Owned Property located in,
at or about Building 3, subject to Section 7 and such other conditions as
Landlord may require.
12.3. The validity and effect of this Lease shall not be impaired in
any way by the failure of Landlord to complete repairs and restoration of
Building 3 or of the Buildings within two hundred forty (240) days after
commencement of the work, even if Landlord had in good faith notified Tenant
that the repair and restoration could be completed within such period,
provided that Landlord proceeds diligently with such repair and restoration
and completes such repair and restoration within two hundred seventy (270)
days after commencement of the work. In the event the work is not completed
within such two hundred seventy (270) day period, Tenant shall have the
right, by notice given within fifteen (15) days after the expiration of such
two hundred seventy (270) day period, to terminate the Lease. In the case of
damage to Building 3 which is of a nature or extent that Tenant's continued
occupancy is in the judgment of Landlord substantially impaired, then the
Annual Fixed Rent payable by Tenant hereunder and Tenant's Proportionate
Share shall be equitably abated or adjusted for the duration of such
impairment.
13. INSURANCE; INDEMNIFICATION OF LANDLORD; WAIVER OF SUBROGATION.
13.1. Tenant covenants and agrees to exonerate, indemnify, defend,
protect and save Landlord, its representatives and Landlord's managing agent,
if any, harmless from and against any and all claims, demands, expenses,
losses, suits and damages as may be occasioned by reason of (i) any accident
or matter occurring at or about Building 3, causing injury to persons or
damage to property (including, without limitation, Building 3), unless such
accident or other matter resulted from the negligence or otherwise tortious
act of Landlord or Landlord's agents or employees, (ii) the failure of Tenant
fully and faithfully to perform the obligations and observe the conditions of
this Lease, and (iii) the negligence or otherwise tortious act of Tenant or
anyone in or about the Project on behalf of or at the invitation or right of
Tenant. Tenant shall maintain in full force and effect, at its own expense,
comprehensive general liability insurance (including a contractual liability
and fire legal liability insurance endorsement) naming as an additional
insured Landlord and Landlord's managing agent, if any, against claims for
bodily injury, death or property damage in amounts not less than
$2,000,000.00 (or such higher limits as may be determined by Landlord from
time to time) and business interruption insurance in an amount sufficient to
reimburse Tenant for loss of earnings attributable to prevention of access to
Building 3 for a period of at least twelve (12) months. All policies shall
be issued by companies having a Best's financial rating of A or better and a
size class rating of XII (12) or larger or otherwise acceptable to Landlord.
At or prior to the Commencement Date, Tenant shall deposit certificates of
such insurance with Landlord and shall deposit with Landlord renewals thereof
at least fifteen (15) days prior to the expiration thereof. Such policy or
policies of insurance or certificates thereof shall have attached thereto an
endorsement that such policy shall not be canceled without at least thirty
(30) days prior written notice to Landlord and Landlord's managing agent, if
any, that no act or omission of Tenant shall invalidate the interest of
Landlord under such insurance and expressly waiving all rights of subrogation
as set forth below. At Landlord's request, Tenant shall provide Landlord with
a letter from an authorized representative of its insurance carrier stating
that Tenant's current and effective insurance coverage complies with the
requirements contained herein. Any insurance required of Tenant hereunder
may be furnished by Tenant under a blanket policy carried by it, provided
that such blanket policy shall contain an endorsement that names Landlord as
an additional insured, specifically references Building 3, and guarantees a
minimum limit available for Building 3 equal to or greater than the insurance
amounts required under this Section. Each policy evidencing the insurance to
be carried by Tenant hereunder shall contain a clause that such policy and
the coverage evidenced thereby shall be primary with respect to any policies
carried by Landlord, and that any coverage carried by Landlord shall be
excess insurance.
13.2. Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
covered by insurance then in force, even if any such fire or other casualty
occurrence shall have been caused by the fault or negligence of the other
party, or anyone for whom such party may be responsible. This release shall
be applicable and in full force and effect, however, only to the extent of
and with respect to any loss or damage occurring during such time as the
policy or policies of insurance covering such loss shall contain a clause or
endorsement to the effect that this release shall not adversely affect or
impair such insurance or prejudice the right of the insured to recover
thereunder. To the extent available, Landlord and Tenant further agree to
provide such endorsements for such insurance policies agreeing to the waiver
of subrogation as required herein.
14. INSPECTION; ACCESS; CHANGES IN BUILDING FACILITIES.
14.1. Upon reasonable notice and at reasonable times, accompanied by
Tenant's employee or agent, Landlord and its agents or other representatives
shall be permitted to enter Building 3 (i) to examine, inspect and protect
Building 3, (ii) during the last nine (9) months of the Lease Term, or prior
thereto if Tenant vacates Building 3, to show Building 3 to prospective
tenants and to affix to any suitable part of Building 3 a notice for letting
Building 3, or (iii) to show Building 3 to prospective purchasers, lenders
and other interested parties and to affix to any suitable part of Building 3
a notice for sale of Building 3. Notwithstanding the foregoing, notice of
entry shall not be required in the event of an emergency.
14.2. Upon reasonable notice and at reasonable times, accompanied by
Tenant's employee or agent, Landlord shall have access to and use of all
areas in Building 3 (including exterior building walls, core corridor walls
and doors and any core corridor entrances), any roofs, and any space used for
shafts, stacks, pipes, conduits, fan rooms, ducts, electric or other
utilities, sinks or other facilities, as well as access to and through
Building 3 for the purpose of operation, maintenance, decoration and repair,
provided, however,
6
that except in emergencies such access shall not be exercised so as to
interfere unreasonably with Tenant's use of Building 3. Tenant shall permit
Landlord to install, use and maintain pipes, ducts and conduits in and
through Building 3, provided that the installation work is performed at such
times and by such methods as will not materially interfere with Tenant's use
of Building 3, materially reduce the floor area thereof or materially and
adversely affect Tenant's layout. Landlord and Tenant shall cooperate with
each other in the location of Landlord's and Tenant's facilities requiring
such access.
14.3. Landlord reserves the right at any time upon ten (10) days'
prior notice, without incurring any liability to Tenant therefor, to make
such changes in or to the interior and exterior of Building 3 and the
fixtures and equipment thereof, as well as in or to the entrances, halls,
foyers, passages, doors, doorways, corridors, elevators, if any, stairways,
bathrooms and other public parts thereof, and to the Land and any other
improvements thereon, as Landlord may deem necessary or desirable; provided
that there shall be no change that materially detracts from the character or
quality of Building 3 or, in Tenant's reasonable judgment, materially and
adversely affects Tenant's use and enjoyment of Building 3 and other rights
granted pursuant to this Lease.
14.4. In the event of a dispute arising concerning the provisions of
this Section 14, either party shall be permitted to submit such dispute to
arbitration under the provisions of Section 31 hereof.
15. DEFAULT.
15.1. Any other provisions in this Lease notwithstanding, it shall
be an event of default ("Event of Default") under this Lease if, during the
Term: (i) Tenant fails to pay any installment of Fixed Rent, Additional Rent
or other sum payable by Tenant hereunder when due and such failure continues
for a period of ten (10) days after written notice from Landlord of such
failure, or (ii) Tenant fails to observe or perform any other covenant or
agreement of Tenant herein contained and such failure continues after written
notice given by or on behalf of Landlord to Tenant for more than 30 days, or
(iii) Tenant uses or occupies Building 3 other than as permitted hereunder,
or (iv) Tenant assigns or sublets, or purports to assign or sublet, Building
3 or any part thereof other than in the manner and upon the conditions set
forth herein, or (v) Tenant abandons or vacates Building 3 without paying
rent. The notice and grace period provisions in clauses (i) and (ii) above
shall have no application to the Events of Default referred to in clauses
(iii) through (v) above.
15.2. It shall also be an Event of Default if, during the period
from the date hereof to the Commencement Date: (i) Tenant fails to pay any
installment of the Tenant Improvement Payments or other sum payable by Tenant
hereunder when due and such failure continues for a period of ten (10) days
after written notice from Landlord of such failure, or (ii) Tenant fails to
observe or perform any other covenant or agreement of Tenant herein contained
which Tenant is required to observe or perform prior to the Commencement
Date, and such failure continues after written notice given by or on behalf
of Landlord to Tenant for more than 30 days, or (iii) Tenant fails to pay any
installment of Fixed Rent, Additional Rent or other sum payable by Tenant
under the IBM Sublease when due, and such failure continues beyond any
applicable grace period (and the IBM Sublease or Tenant's right of possession
under the IBM Sublease is terminated as a result thereof), or (iv) Tenant
uses or occupies Building 3 other than as permitted under the IBM Sublease
(and the IBM Sublease or Tenant's right of possession under the IBM Sublease
is terminated as a result thereof), or (v) Tenant assigns or sublets, or
purports to assign or sublet, Building 3 or any part thereof other than in
the manner and upon the conditions set forth herein or in the IBM Sublease
(and the IBM Sublease or Tenant's right of possession under the IBM Sublease
is terminated as a result thereof). The notice and grace period provisions
in clauses (i) and (ii) above shall have no application to the Events of
Default referred to in clauses (iii) through (v) above.
15.3. It shall also be an Event of Default if, at any time from and
after the date hereof: (i) Tenant files a petition commencing a voluntary
case, or has filed against it a petition commencing an involuntary case,
under the Federal Bankruptcy Code (Title 11 of the United States Code), as
now or hereafter in effect, or under any similar law, or files or has filed
against it a petition or answer in bankruptcy or for reorganization or for an
arrangement pursuant to any state bankruptcy law or any similar state law,
and, in the case of any such involuntary action, such action shall not be
dismissed, discharged or denied within sixty (60) days after the filing
thereof, or Tenant consents or acquiesces in the filing thereof, or (ii) if
Tenant is a banking organization, Tenant files an application for protection,
voluntary liquidation or dissolution applicable to banking organizations, or
(iii) a custodian, receiver, trustee or liquidator of Tenant or of all or
substantially all of Tenant's property or of Building 3 shall be appointed in
any proceedings brought by or against Tenant and, in the latter case, such
entity shall not be discharged within sixty (60) days after such appointment
or Tenant consents to or acquiesces in such appointment, or (iv) Tenant shall
generally not pay Tenant's debts as such debts become due, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due. The notice and
grace period provisions in Sections 15.1 (i) and (ii) and 15.2 (i) and (ii)
above shall have no application to the Events of Default referred to this
Section 15.3.
16. LANDLORD'S REMEDIES.
16.1. Upon the occurrence of any Event of Default, Landlord at any
time thereafter may at its option exercise any one or more of the following
remedies:
(a) Landlord may terminate this Lease, by written notice to
Tenant, without any right by Tenant to reinstate its rights by payment of
rent due or other performance of the terms and conditions hereof. Upon such
termination Tenant shall immediately surrender possession of Building 3 to
Landlord, and Landlord shall immediately become entitled to receive from
Tenant an amount equal to the aggregate of all unpaid Fixed Rent and
Additional Rent (which Additional Rent shall be fixed at the level of the
last complete Operating Year prior to such termination) reserved under this
Lease through the end of the Term, determined as of the date of such
termination.
(b) Landlord may, at Landlord's option, with or without
terminating this Lease, enter upon Building 3 and remove any and all persons
therefrom and take and retain possession thereof by any means available to
Landlord, including summary dispossess proceedings.
(c) If Landlord elects to terminate Tenant's right to possession
only, without terminating the Lease, Landlord may, at the Landlord's option,
enter into Building 3, remove Tenant's signs and other evidences of tenancy,
and take and hold possession thereof as hereinabove provided, without such
entry and possession terminating the Lease or releasing Tenant, in whole or
in part, from Tenant's obligations to pay the rent hereunder or for any other
of its obligations under this Lease. Landlord may, but will not be under
obligation to, relet all or any part of Building 3 in any manner, for any
term, for such rent and upon terms satisfactory to Landlord and may decorate
or make any repairs, changes, alterations or additions in or to Building 3
that may be necessary or convenient. If Landlord does not relet Building 3,
Tenant will pay the Landlord on demand all unpaid amounts due from Tenant to
Landlord under this Lease through the end of the Term. If Building 3 is
relet, Tenant shall pay any excess of the rent over the actual proceeds of
such reletting, net of all expenses, including repairs or construction costs
and leasing commissions. If Building 3 is at the time of any Event of Default
sublet or leased by Tenant to others, Landlord may collect rents due from any
subtenant or other tenant and apply such rents to the rent and other amounts
due hereunder without in any way affecting Tenant's obligation to Landlord
hereunder.
(d) Landlord may declare all unpaid Fixed Rent and all items of
Additional Rent (the amount thereof to be based on historical amounts and
Landlord's estimates for future amounts) through the end of the Term
immediately due and payable, together with all other charges, payments,
costs, and expenses payable by Tenant as though such amounts were payable in
advance on the date the Event of Default occurred.
7
(e) Landlord may remove all persons and property from Building 3,
and store such property in a public warehouse or elsewhere at the cost of and
for the account of Tenant, upon service of notice or resort to legal process
and without being deemed guilty of trespass or becoming liable for any loss
or damage which may be occasioned thereby.
16.2. No expiration or termination of this Lease by operation of law
or otherwise (except as expressly provided herein), and no repossession of
Building 3 or any part thereof shall relieve Tenant of its liabilities and
obligations hereunder, all of which shall survive such expiration,
termination or repossession, and Landlord may, at its option, xxx for and
collect all rent and other charges due hereunder at any time as and when such
charges accrue.
16.3. In the event of breach or threatened breach by Tenant of any
provision of this Lease, Landlord shall have the right of injunction and the
right to invoke any remedy allowed at law or in equity in addition to other
remedies provided for herein.
16.4. Tenant hereby expressly waives any and all rights of
redemption granted by or under any present or future law in the event this
Lease is terminated, or in the event of Landlord obtaining possession of
Building 3, or in the event Tenant is evicted or dispossessed for any cause,
by reason of violation by Tenant of any of the provisions of this Lease.
16.5. No right or remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other right or remedy herein or
by law provided, but each shall be cumulative and in addition to every other
right or remedy given herein or now or hereafter existing at law or in equity
or by statute.
16.6. In the event that Landlord commences suit for the repossession
of Building 3, for the recovery of rent or any other amount due under the
provisions of this Lease, or because of the breach of any other covenant
herein contained on the part of Tenant to be kept or performed, Tenant shall,
if Landlord shall prevail in such suit, pay to Landlord all reasonable
expenses incurred in connection therewith, including reasonable attorneys'
fees.
17. LANDLORD'S RIGHT TO CURE TENANT'S DEFAULT. If Tenant defaults in the
making of any payment or in the doing of any act herein required to be made
or done by Tenant (including expiration of any applicable cure periods), then
Landlord may, but shall not be required to, make such payment or do such act,
and charge the amount of Landlord's expense, with interest accruing and
payable thereon at the Default Rate as of the date of the expenditure by
Landlord or as of the date of payment thereof by Tenant, whichever is higher,
from the date paid or incurred by Landlord to the date of payment thereof by
Tenant. Such payment and interest shall constitute Additional Rent hereunder
due and payable with the next monthly installment of Fixed Rent, but the
making of such payment or the taking of such action by Landlord shall not
operate to cure such default by Tenant or to estop Landlord from the pursuit
of any remedy to which Landlord would otherwise be entitled.
18. TENANT'S REMEDIES. In the event of breach or threatened breach by
Landlord of any provision of this Lease, Tenant shall have the right of
injunction and the right to invoke any remedy allowed at law or in equity in
addition to other remedies provided for herein.
19. ESTOPPEL CERTIFICATE. Tenant shall, at any time and from time to time,
at the request of Landlord, upon ten (10) business days notice, execute and
deliver to Landlord a certificate in the form of Exhibit "G" attached hereto
or some other reasonable form supplied by Landlord, it being intended that
any such certificate delivered pursuant hereto may be relied upon by others
with whom Landlord may be dealing.
20. HOLDING OVER. If Tenant retains possession of Building 3 or any part
thereof after the termination of this Lease by expiration of the Lease Term
or otherwise, in the absence of any written agreement between Landlord and
Tenant concerning any such continuance of the Lease Term, Tenant shall pay
Landlord (i) an amount, calculated on a per diem basis for each day of such
unlawful retention, equal to the greater of (a) 150% the Annual Fixed Rent in
effect immediately prior to the expiration or earlier termination of the
Lease Term, or (b) the market rental for Building 3, as determined by
Landlord, for the time Tenant thus remains in possession, plus, in each case,
all Additional Rent and other sums payable hereunder. Without limiting any
rights and remedies of Landlord resulting by reason of the wrongful holding
over by Tenant, or creating any right in Tenant to continue in possession of
Building 3, all Tenant's obligations with respect to the use, occupancy and
maintenance of Building 3 shall continue during such period of unlawful
retention.
21. SURRENDER OF BUILDING 3. Tenant shall, at the expiration or earlier
termination of this Lease, promptly surrender Building 3 in good order and
condition and in conformity with the applicable provisions of this Lease,
excepting only reasonable wear and tear and casualty. Any of Tenant's Owned
Property which shall remain in Building 3 after the expiration or earlier
termination of this Lease shall be deemed to have been abandoned and either
may be retained by Landlord as Landlord's property or may be disposed of in
such manner as Landlord may see fit, provided that, notwithstanding the
foregoing, Tenant shall, upon request of Landlord made prior to or within a
reasonable period after the expiration or earlier termination of this Lease,
promptly remove from Building 3 any such Tenant's Owned Property at Tenant's
sole cost and expense. Should Tenant fail to do so, Landlord may do so, and
the cost and expense thereof, together with interest at the Default Rate from
the date such costs and expenses are incurred by Landlord, shall be paid by
Tenant to Landlord as "Additional Rent" within fifteen (15) days after Tenant
is billed therefor. If such Tenant's Owned Property or any part thereof
shall be sold by Landlord, Landlord may receive and retain the proceeds of
such sale as Landlord's property.
22. SUBORDINATION, ATTORNMENT AND NONDISTURBANCE.
22.1. This Lease and the estate, interest and rights hereby created
are subordinate to any mortgage now or hereafter placed upon Building 3 or
the Land or any estate or interest therein, including, without limitation,
any mortgage on any leasehold estate, and to all renewals, modifications,
consolidations, replacements and extensions of same as well as any
substitutions therefor. Tenant agrees that in the event any person, firm,
corporation or other entity acquires the right to possession of Building 3 or
the Land, including any mortgagee or holder of any estate or interest having
priority over this Lease, Tenant shall, if requested by such person, firm,
corporation or other entity, attorn to and become the tenant of such person,
firm, corporation or other entity, upon the same terms and conditions as are
set forth herein for the balance of the Lease Term. Notwithstanding the
foregoing, any mortgagee may, at any time, subordinate its mortgage to this
Lease, without Tenant's consent, by notice in writing to Tenant, and
thereupon this Lease shall be deemed prior to such mortgage without regard to
their respective dates of execution and delivery, and in that event, such
mortgagee shall have the same rights with respect to this Lease as though it
had been executed prior to the execution and delivery of the mortgage.
Tenant, if requested by Landlord, shall execute such instruments in
recordable form as may reasonably be required by Landlord in order to confirm
or effect the subordination or priority of this Lease, as the case may be,
and the attornment of Tenant to future landlords in accordance with the terms
of this Section.
22.2. With respect to any existing lease, estate, interest and/or
mortgage, no later than the date sixty (60) days after Tenant executes and
delivers this Lease, and with respect to any future lease, estate and/or
mortgage, on or before the effective date thereof, Landlord shall obtain from
its lessor and/or mortgagee, as the case may be, a written agreement with
Tenant in a form substantially in conformity with the form attached hereto as
Exhibit "M", which agreement shall be binding on their respective legal
representatives, successors and assigns and shall provide, among other
provisions, that so long as this Lease shall be in full force and effect (a)
Tenant shall not be joined as a defendant in any proceeding which may be
instituted to terminate or enforce the lease or to foreclose or enforce the
8
mortgage, and (b) Tenant's possession and use of Building 3 in accordance
with the provisions of this Lease shall not be affected or disturbed by
reason of the subordination to or any modification of or default under the
ground or underlying lease or mortgage. If such lessor and/or mortgagee or
any successor -in-interest shall succeed to the rights of Landlord under this
Lease, whether through possession, surrender, assignment, subletting,
judicial or foreclosure action, or delivery of a deed or otherwise, Tenant
will attorn to and recognize such successor-landlord as Tenant's landlord and
the successor-landlord will accept such attornment and recognize Tenant's
rights of possession and use of Building 3 in accordance with the provisions
of this Lease. This clause shall be self-operative and no further instrument
of attornment or recognition shall be required.
23. BROKERS. The parties agree that Xxxxxxxx/Xxxxxxx-Xxxxx, Inc. (the
"Broker") and Xxxxxxx and Wakefield, Inc. (the "Cooperating Broker") are the
real estate broker and cooperating broker, respectively, who have brought the
parties together in connection with the transactions contemplated hereby and
that Landlord shall be responsible for all brokerage commissions to be paid
to Broker and Cooperating Broker on the terms and conditions set forth in a
separate agreement between Landlord and Broker. Each party represents and
warrants to the other that he, she or they have not made any agreement or
taken any action which may cause anyone (other than Broker or Cooperating
Broker) to become entitled to a commission as a result of the transactions
contemplated by this Lease, and each will indemnify and defend the other from
any and all claims, actual or threatened, for compensation by any such third
person (other than Broker or Cooperating Broker) by reason of such party's
breach of his, her or their representation or warranty contained in this
Section.
24. NOTICES. All notices or other communications hereunder shall be in
writing and shall be sent to the address of the party for whom such notice is
intended as set forth below (or to such other address as a party may
hereafter designate for itself by notice to the other party as required
hereby). Any such notice or communication shall be sufficient if sent by
registered or certified mail, return receipt requested, postage prepaid, by
prepaid overnight delivery service, or by hand delivery. Any such notice or
communication shall be deemed to have been given: if hand delivered, then
when delivered or when such delivery is refused; if sent by an overnight
delivery service, then on the day following the day deposited with such
service; or if sent by registered or certified mail, then on the third
business day following the date deposited in the United States mails. All
notices and communications to Tenant may also be given by leaving same at
Building 3 during the hours set forth in Section 8 hereof.
24.1. If to Landlord:
South Brunswick Investors, L.P.
c/o South Brunswick Investment Company, L.L.C.
Xxxxx 0000, Xxx Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxx, III
With a required copy to:
Saul, Ewing, Xxxxxx & Xxxx
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxxxxxx, XX 00000
Attention: F. Xxxxxxx Xxxxxxx, Esquire
Notice to mortgagees: All notices by Tenant to Landlord relating to any
default by Landlord under this Lease must also be
given by Tenant to the holders of any mortgage on
the Land and/or Building 3 of which Tenant has
notice.
24.2. If to Tenant:
Teleport Communications Group Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attention: General Counsel
With a required copy to:
Teleport Communications Group Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attention: S.V.P. Engineering
Teleport Communications Group Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxx Xxxxxx, XX 00000
Attention: Controller
25. [INTENTIONALLY OMITTED]
26. [INTENTIONALLY OMITTED]
27. [INTENTIONALLY OMITTED]
28. RENEWAL TERMS. Tenant shall have the option to extend the term of this
Lease for Building 3 for two consecutive five-year terms (each a "Renewal
Term"), on the same terms and conditions as set forth herein except that (i)
Tenant shall be entitled to a Tenant Allowance at the commencement of each
Renewal Term equal to Ten Dollars ($10) per square foot included in Building
3, and (ii) Tenant shall not be entitled to any further Renewal Terms after
the second Renewal Term. The Annual Fixed Rent during each Renewal Term is
set forth in Exhibit "B" hereto. Each option to extend shall be exercised by
written notice to Landlord given at least 270 days prior to the then-current
expiration date for the Term. Notwithstanding anything herein to the
contrary, the term shall not be extended if Tenant is in default under the
terms of this Lease on the date which is 270 days prior to the commencement
of a Renewal Term. As used in this Lease, the word "Term" and the words
"term of this Lease" shall mean the initial Lease Term, any extensions
pursuant to Section 27 and any Renewal Terms which may become effective.
9
29. SIGNS.
29.1. So long as Tenant shall lease Building 3, it shall have the
right, upon Landlord's approval, to (1) name Building 3, and (2) design and
designate the location of signs naming Building 3, including such locations
on the facade of Building 3, and (3) install such signs.
29.2. Neither Tenant nor Landlord shall install or permit
installation of any signs, sculptures and/or graphics which adversely reflect
on the dignity or character of the Project as a first-class office Project.
30. PARKING.
30.1. (a) Landlord shall, at its expense, provide Tenant with 99
self-parking spaces within the Building Parking Area and Visitors Parking
Area (collectively, the "Parking Areas") for Tenant's use. The Parking Areas
are shown on Exhibit "K". The Parking Areas shall be available for use
twenty-four (24) hours a day, every day of the year during the term of this
Lease and shall be illuminated when necessary to maintain a safe environment.
Further, Landlord shall, at its expense, keep and maintain the Parking Areas
in a clean, safe and first-class condition.
(b) If Tenant, its employees, licensees or guests are not able to
use the Parking Areas and access ways thereto because of unauthorized use
thereof by others, Landlord shall take whatever steps are necessary to end
and prevent further unauthorized use including, if appropriate, posting
signs, distributing parking stickers and towing away unauthorized vehicles.
30.2. Landlord shall reserve (as a component of the spaces allocated
to Tenant pursuant to Section 29.1) at least three (3) parking spaces in the
Visitors Parking Area, for use by invitees of Tenant. These parking spaces
shall be designated for transient use, and Landlord shall take reasonable
steps to see that these parking spaces are available for such use at all
times.
31. ARBITRATION.
31.1. If arbitration is agreed upon hereunder as a dispute
resolution procedure, the arbitration shall be conducted as provided in this
Section. All proceedings shall be conducted according to the Commercial
Arbitration Rules of the American Arbitration Association, except as
hereinafter provided. No action at law or in equity in connection with any
such dispute shall be brought until arbitration hereunder shall have been
waived, either expressly or pursuant to this Section. The judgment upon the
award rendered in any arbitration hereunder shall be final and binding on
both parties hereto and may be entered in any court having jurisdiction
thereof.
31.2. During an arbitration proceeding pursuant to this Section, the
parties shall continue to perform and discharge all of their respective
obligations under this Lease, except as otherwise provided in this Lease.
31.3. All disputes that may be arbitrated in accordance with this
Lease shall be raised by notice to the other party, which notice shall state
with particularity the nature of the dispute and the demand for relief,
making specific reference by section number and title of the provisions of
this Lease alleged to have given rise to the dispute. The notice shall also
refer to this Section and shall state whether or not the party giving the
notice demands arbitration under this Section. If no such demand is
contained in the notice, the other party against whom relief is sought shall
have the right to demand arbitration under this Section within five (5)
business days after such notice is received. Unless one of the parties
demands arbitration, the provisions of this Section shall be deemed to have
been waived with respect to the dispute in question.
31.4. Tenant and Landlord shall mutually and promptly select one
person who has demonstrated at least ten year's experience in commercial real
estate matters and, in particular, the subject matter of the dispute, to act
as arbitrator hereunder. If a selection is not made within thirty (30) days
after a demand for arbitration is made, upon the request of either party the
arbitrator shall be appointed by The American Arbitration Association. The
arbitration proceedings shall take place at a mutually acceptable location in
New Jersey.
31.5. When resolving any dispute, the arbitrator shall apply the
pertinent provisions of this Lease without departure therefrom in any
respect. The arbitrator shall not have the power to change any of the
provisions of this Lease, but this Section shall not prevent in any
appropriate case the interpretation, construction and determination by the
arbitrator of the applicable provisions of this Lease to the extent necessary
in applying the same to the matters to be determined by arbitration. The
arbitrator shall limit his deliberations to the following issues only and no
others:
(i) resolution of those disputes expressly agreed in this Lease to be
subject to submission to arbitration, and
(ii) whether an item included in Landlord Statement as Operating
Expenses or Real Estate Taxes is properly includable pursuant to
Exhibit "C".
32. ADDITIONAL RIGHTS OF TENANT.
32.1. So long as Tenant shall lease space on the Project under
either this Lease, the First Lease, or any lease executed hereafter, Tenant
shall be permitted to install and maintain a generator on the existing pad on
the Land, in the location depicted on Exhibit "K". Tenant shall repair any
damage to the pad site which results from the installation or maintenance of
such generator. Tenant shall during such period also have exclusive use of
an existing fuel tank, located in the location on the Land depicted on
Exhibit "K". Tenant shall maintain the fuel tank and keep it in good repair
and condition.
32.2. Tenant may install a generator plug on the outside wall of
Building 3 to accommodate a mobile generator.
32.3. Tenant shall be permitted to install four (4) 6" conduits from
the street or the First Space to Building 3.
32.4. Tenant shall have the right to contact other tenants within
the Project regarding sales of Tenant's telecommunication services.
32.5. Landlord grants to Tenant the license and right during the
term of this Lease (i) to utilize space and conduits which exist on the Land
and in Building 3 during the term of this Lease for the purpose of using
existing risers and conduit and/or installing conduit (in the event existing
conduit space is insufficient), (ii) to install cable in, across and through
such risers and conduit, and (iii) to make connections to all electrical and
mechanical closets as necessary for the use of such cable for the purposes of
connection of Tenant's equipment and facilities within Building 3 to Tenant's
telecommunication system network outside Building 3 and connection of
Tenant's equipment and facilities in Building 3 to other tenant premises.
The location of such risers and conduit shall be designated by Landlord in
its reasonable discretion. The method of installation of conduit or cable
shall be subject to the prior approval of Landlord, which approval
10
shall not be unreasonably withheld or delayed. Tenant shall be responsible
for maintaining any conduit and cable which is used solely by Tenant at its
cost.
32.6. Prior to exercising any rights under this Section, Tenant
shall provide Landlord with plans and specifications detailing Tenant's
plans, which plans and specifications shall be subject to Landlord's
approval, which approval shall not be unreasonably withheld or delayed,
provided, however, that such approval may be subject to reasonable conditions
including, without limitation, that Tenant be required to pay for any
out-of-pocket cost to Landlord occasioned thereby. Tenant shall bear all
costs incurred in the exercise of its rights set forth above shall exercise
these rights in full compliance with all applicable governmental laws,
regulations and rules (including without limitation the obtaining of all
required permits) or any other requirements reasonably imposed by Landlord.
Tenant shall not, in the exercise of its rights under this Section, interfere
with Landlord, other tenants at the Project and the operations of Building 3
or the Project. Tenant shall take all precautionary steps to protect its
facilities and the facilities of other affected by performance of work and
shall police same properly. Tenant will replace or restore any disturbance
or damage it caused to Building 3 or other improvements at the Project. Any
alteration, additions or improvements constructed by Tenant in the course of
exercising its rights under this Section shall be deemed to be Tenant
Improvements.
32.7. Except as otherwise expressly provided herein, Tenant shall
not be charged any amounts by Landlord for the enjoyment of the additional
rights of Tenant set forth in this Section 32.
33. BUILDING 3 SECURITY. Tenant agrees that it shall, as part of the Tenant
Work, install a security system in Building 3 providing for card key access.
At such time as any tenant other than Tenant shall lease any portion of
Building 3, Tenant shall, at its sole cost and expense, modify the security
system (if necessary) so as to provide separately controlled access into
Building 3 for such other tenant.
34. RESTRICTIONS ON OTHER TENANTS IN BUILDING 3.
34.1. In order to protect Tenant's trade secrets and confidential
information and enhance security in Xxxxxxxx 0, Xxxxxxxx shall not assign
this Lease to, any person or entity which, as a major part of its business,
(1) leases or sells or otherwise trades in telecommunications products or
services of the kind sold by Tenant, or (2) provides consulting services or
advice in the use or application of such products or services.
34.2. Landlord shall include the foregoing prohibition in all leases
which are executed after the date hereof and cover space in Building 3, and
shall, in such leases, require the tenant thereunder to include the same in
all subleases and assignments executed after the date hereof.
34.3. Landlord shall consult with Tenant before (i) leasing space in
Building 3 to any tenant, (ii) approving any subtenant or assignee of any
tenant in the Building 3, or (iii) making any other commitment which may
violate this Section.
35. MISCELLANEOUS.
35.1. The obligations of this Lease shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns; provided that Landlord and each successive owner of Building 3
and/or the Land shall be liable only for obligations accruing during the
period of its ownership or interest in Building 3, and from and after the
transfer by Landlord or such successive owner of its ownership or other
interest in Building 3, Tenant shall look solely to the successors in title
for the performance of Landlord's obligations hereunder arising thereafter.
35.2. No delay or forbearance by Landlord in exercising any right or
remedy hereunder or in undertaking or performing any act or matter which is
not expressly required to be undertaken by Landlord shall be construed,
respectively, to be a waiver of Landlord's rights or to represent any
agreement by Landlord to undertake or perform such act or matter thereafter.
35.3. TENANT HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF THE STATE WHERE BUILDING 3 IS LOCATED AND IN ANY AND ALL ACTIONS OR
PROCEEDINGS ARISING HEREUNDER OR PURSUANT HERETO. LANDLORD AND TENANT AGREE
TO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THE PARTIES HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF
LANDLORD AND TENANT AND/OR TENANT'S USE OF OR OCCUPANCY OF BUILDING 3. IT IS
FURTHER MUTUALLY AGREED THAT IN THE EVENT LANDLORD COMMENCES ANY SUMMARY
PROCEEDING FOR NON-PAYMENT OF RENT, TENANT WILL NOT INTERPOSE ANY
COUNTERCLAIM OF WHATEVER NATURE OR DESCRIPTION IN ANY SUCH PROCEEDING, UNLESS
TENANT CANNOT BRING SEPARATE ACTION.
35.4. Tenant shall look solely to Building 3 and rents derived
therefrom for enforcement of any obligation hereunder or by law assumed or
enforceable against Landlord, and no other property or other assets of
Landlord shall be subjected to levy, execution or other enforcement
proceeding for the satisfaction of Tenant's remedies or with respect to this
Lease, the relationship of landlord and tenant hereunder or Tenant's use and
occupancy of Building 3.
35.5. All times, wherever specified herein for the performance by
Landlord or Tenant of their respective obligations hereunder, are of the
essence of this Lease.
35.6. Each covenant and agreement in this Lease shall for all
purposes be construed to be a separate and independent covenant or agreement.
If any provision in this Lease or the application thereof shall to any
extent be invalid, illegal or otherwise unenforceable, the remainder of this
Lease, and the application of such provision other than as invalid, illegal
or unenforceable, shall not be affected thereby; and such provisions in this
Lease shall be valid and enforceable to the fullest extent permitted by law.
35.7. This Lease, including all Exhibits hereto, each of which is
incorporated in this Lease, contains the entire agreement between the parties
hereto, and shall not be amended, modified or supplemented unless by
agreement in writing signed by both Landlord and Tenant, except as
specifically provided for herein.
35.8. The title and headings and table of contents of this Lease are
for convenience of reference only and shall not in any way be utilized to
construe or interpret the agreement of the parties as otherwise set forth
herein. The term "Landlord" and term "Tenant" as used herein shall mean,
where appropriate, all persons acting by or on behalf of the respective
parties, except as to any required approvals, consents or amendments,
modifications or supplements hereunder when such terms shall only mean the
parties originally named on the first page of this Lease as Landlord and
Tenant, respectively, and their agents so authorized in writing.
35.9. If Tenant is a corporation or a limited liability company,
each person signing this Lease on behalf of Tenant represents and warrants
that he/she has full authority to do so and that this Lease is fully and
completely binding on the corporation or limited liability
11
company. If at any time during the Lease Term hereunder, or any extension or
renewal thereof, Tenant shall change its corporate or company name, by
operation of law or otherwise, Tenant shall deliver to Landlord a copy of a
certificate of name change filed with the state of Tenant's jurisdiction
evidencing such name change, or such other evidence of Tenant's name change
and authority as is reasonably acceptable to Landlord. Such evidence shall
be delivered to Landlord within sixty (60) days after Tenant's official name
change. If Tenant is a general partnership, limited partnership or limited
liability partnership, each person or entity signing this Lease for Tenant
represents that he/she or it has full authority to sign for the partnership
and that this Lease is completely and fully binding on the partnership and
all general partners of the partnership. Tenant shall give written notice to
Landlord of any general partner's withdrawal or addition and, in the event of
a name change of the partnership, the same conditions regarding a name change
of a corporate or limited liability company Tenant, as stated above, shall
apply.
35.10. This Lease shall be governed by and construed in accordance
with the laws of the State of New Jersey.
35.11. Within ten (10) days after receipt, Landlord and Tenant shall
advise the other party in writing, and provide the other with copies of (as
applicable), any notices alleging violation of the Americans with
Disabilities Act of 1990 ("ADA") relating to any portion of Building 3; any
claims made or threatened in writing regarding noncompliance with the ADA and
relating to any portion of Building 3; or any governmental or regulatory
actions or investigations instituted or threatened regarding noncompliance
with the ADA and relating to any portion of Building 3.
35.12. If Tenant is comprised of more than one signatory, each
signatory shall be jointly and severally liable with each other signatory for
payment and performance according to this Lease.
35.13. Any covenants set forth in this Lease which, by their nature,
would reasonably be expected to be performed after the expiration or earlier
termination of this Lease, shall survive the expiration or earlier
termination of this Lease.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Lease to be executed on the day and year first above written.
LANDLORD:
SOUTH BRUNSWICK INVESTORS, L.P., a Delaware
limited partnership
By: South Brunswick Investment Company, L.L.C.
By:______________________________________
Name:____________________________________
Title:___________________________________
TENANT:
TELEPORT COMMUNICATIONS GROUP INC.
By:________________________________________
Name: _____________________________________
Title: ____________________________________
12
EXHIBIT "A"
PLAN OF DEMISED PREMISES
EXHIBIT "B"
RENT SCHEDULE
EXHIBIT "C"
TAXES, OPERATING EXPENSE AND OTHER ADDITIONAL RENT
1. Taxes.
A. Definitions
I. "ADJUSTED TAXES" shall mean the Taxes for any Tax Year, plus the
expenses of any contests (administrative or otherwise) of tax
assessments or proceedings for refunds incurred during such Tax
Year. If Landlord is successful in obtaining a refund for any Tax
Year(s), the Adjusted Taxes for the Tax Year(s) to which such
refund is applicable shall be recalculated to reflect the amount
of the refund received by Landlord, and Tenant shall receive a
credit, if appropriate, equal to the amount of the difference
between the Tax Adjustment which was actually paid by Tenant and
the Tax Adjustment which actually is due, taking into account
the amount of the refund.
II. "TAX ADJUSTMENT" shall have the meaning set forth in Subsection
1B below.
III. "TAX ALLOWANCE" shall mean the actual Taxes for Tax Year 1997.
IV. "TAX ESTIMATE" shall have the meaning set forth in Subsection 1B
below.
V. "TAX STATEMENT" shall mean a statement in writing signed by
Landlord, setting forth (a) the Adjusted Taxes for the applicable
Tax Year, (b) the Tax Allowance, (c) the Tax Adjustment payable
for such Tax Year, or portion thereof, and (d) such other
information as Landlord deems appropriate.
VI. "TAX YEAR" shall mean each calendar year, or such other period of
twelve (12) months as hereafter may be duly adopted by the
applicable governmental or quasi-governmental body or authority
or special service district as its fiscal year for purposes of
Taxes, occurring during the Lease Term.
VII. "TAXES" shall mean all taxes, charges, impositions, levies,
assessments and burdens of every kind and nature, whether general
or special, ordinary or extraordinary, foreseen or unforeseen,
assessed or imposed by any governmental or quasi-governmental
body or authority or special service district on and/or with
respect to the Land or the Buildings or their operation or the
rents therefrom (including taxes based on gross receipts),
whether or not directly paid by Landlord, subject to the
following:
(1) there shall be excluded from Taxes all income taxes, excess
profit taxes, excise taxes, franchise taxes, estate,
succession, inheritance and transfer taxes; provided,
however, that if, due to a future change in the method of
taxation or assessment, any such tax, however designated,
shall be imposed in substitution, in whole or in part, for
(or in lieu of all or any part of any contemplated increase
in) any tax, charge, imposition, levy, assessment or burden
which would otherwise be included within the definition of
Taxes, such other tax shall be deemed to be included within
the definition of Taxes as defined herein to the extent of
such substitution or imposition in lieu; and
(2) there shall be excluded from Taxes any use and occupancy
tax, which shall be paid by Tenant to the appropriate
governmental authority; provided, however, that Tenant shall
pay such use and occupancy tax to Landlord as Additional
Rent upon demand if Landlord is required by law to collect
such tax for any governmental authority, in which case
Landlord shall remit any amounts paid to Landlord to the
appropriate governmental authority.
VIII. "TENANT'S PROPORTIONATE SHARE" shall mean a fraction, the
numerator of which shall be the rentable square feet of
Building 3, and the denominator of which shall be the
aggregate rentable square feet in the Buildings, and,
expressed as a percentage, shall be 15% (30,000/200,000). If
the rentable square feet of the Buildings increases or
decreases during any Operating Year or Tax Year, the rentable
square feet of the Buildings for purposes of determining the
numerator and/or denominator of the fraction shall be the
weighted average of the rentable square feet in the Buildings
for such Operating Year or Tax Year.
B. Payment of Tax Adjustment. If the Adjusted Taxes for any Tax Year
shall be in excess of the Tax Allowance, Tenant shall pay to Landlord
as Additional Rent an amount equal to Tenant's Proportionate Share of
such excess. (The amount of Tenant's Proportionate Share of such
excess is hereinafter referred to as the "Tax Adjustment".) If the
Commencement Date is any date other than the first day of a Tax Year
or if the expiration date of the Lease Term is any date other than the
last day of a Tax Year, the Tax Adjustment shall be allocated
proportionately to the amount of time in such Tax Year that the Lease
Term is in effect.
Tenant shall pay to Landlord, on account of the Tax Adjustment for
each Tax Year, monthly installments in advance equal to one-twelfth
(1/12) of the estimated Tax Adjustment for such Tax Year (the "Tax
Estimate"). Such installments shall be payable at such place as
Landlord may direct. From time to time during any Tax Year, Landlord
may furnish to Tenant the Tax Estimate for such Tax Year and, on the
first day of the first month following the receipt of such Tax
Estimate, in addition to the monthly installment of such new Tax
Estimate, Tenant shall pay to Landlord (or Landlord shall credit to
Tenant) any deficiency (or excess) between (i) the total of the
installments paid on account of the Tax Adjustment for such Tax Year,
and (ii) the product of one-twelfth (1/12) of such Tax Estimate for
such Tax Year and the number of months which have elapsed during such
Tax Year prior to the due date of such payment. Until the Tax
Estimate for any Tax Year is furnished by Landlord, Tenant shall
continue to pay monthly installments on account of such Tax Year's Tax
Adjustment based upon the last Tax Estimate provided by Landlord to
Tenant. Following the end of each Tax Year, Landlord shall furnish to
Tenant a Tax Statement. On the first day of the first month following
the receipt of such Tax Statement, Tenant shall pay to Landlord (or
Landlord shall credit or refund to Tenant) any deficiency (or excess)
between the installments paid on account of the preceding Tax Year's
Tax Adjustment and the actual Tax Adjustment for such Tax Year.
Notwithstanding the foregoing, Landlord from time to time during the
Term may elect to waive the requirement for payment of monthly
installments on account of the Tax Adjustment and, in such case,
Tenant shall pay the full amount of any unpaid Tax Adjustment within
fifteen (15) days after Tenant receives any Tax Statement.
Furthermore, notwithstanding the foregoing, more than one (1) Tax
Statement may be sent to Tenant during any Tax Year. Such
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election by Landlord shall not preclude Landlord from thereafter
requiring Tenant to commence paying monthly installments on account of
the Tax Adjustment as set forth above.
C. Tax Contest.
In consideration of Tenant's undertaking to reimburse Landlord for
Tenant's Share of an increase in Real Estate Taxes, Tenant shall have
the right, by appropriate proceedings, to protest any assessment or
reassessment or any special assessment, or any change in the tax rate,
or the validity of any of the above. During the pendency of any
protest, Landlord shall be permitted to continue to pay any disputed
taxes and Tenant shall continue to reimburse Landlord in accordance
with the provisions of Section 1(B) above.
Landlord shall notify Tenant in writing of all assessments and the tax
rates and any proposed changes to them. Tenant shall notify Landlord
in writing within fifteen (15) business days after receipt of
Landlord's notice if Tenant wants to file a protest. If Landlord
receives written notice of a change in assessment and fails to give
notice to Tenant of such change and, as a result, Tenant is unable
to review the change, and if it so desires, to files a protest, Tenant
shall not be obligated to reimburse Landlord for any increase in Real
Estate Taxes resulting therefrom.
In the tax proceedings, Tenant may act in its own name and/or the name
of Landlord and Landlord will, at Tenant's request and provided
Landlord is not put to any expense thereby, cooperate with Tenant in
any way Tenant may reasonably require in connection with such protest.
Any protest conducted by Tenant hereunder shall be at Tenant's expense
and if interest or late charges become payable with respect to the
Real Estate Taxes as a result, Tenant shall reimburse Landlord for the
same. However, Landlord shall be solely responsible for any
penalties, interest or late charges imposed on Landlord through no
fault of Tenant.
Tenant shall be responsible for posting any security and/or paying any
fees required in connection with any protest initiated by Tenant.
Landlord agrees to keep Tenant apprised of all tax protest filings and
proceedings undertaken by Landlord or others to obtain a tax reduction
or refund. Landlord may deduct from the total refund any reasonable
attorneys' fees and other reasonable expenses incurred by Landlord
therefor. However, if the refund or reduction resulted from Tenant's
efforts, Landlord shall also reimburse Tenant for reasonable
attorneys' fees and any other reasonably expenses incurred by Tenant
in connection with the protest, such reimbursement not to exceed
Tenant's Proportionate Share of the refund or reduction.
2. Operating Expense.
A. Definitions.
I. "ESSENTIAL CAPITAL IMPROVEMENT" shall mean (a) a labor saving
device, energy saving device or other installation, improvement
or replacement which is intended to reduce Operating Expense,
whether or not voluntary or required by governmental mandate, or
(b) an installation or improvement required by reason of any law,
ordinance or regulation which was not applicable to the Buildings
on the date of the execution of this Lease, or (c) an
installation or improvement intended to improve the health or
safety of tenants in the Buildings generally, whether or not
voluntary or required by governmental mandate.
II. "OPERATING EXPENSE" shall mean all costs and expenses of whatever
kind or nature paid or incurred by Landlord from time to time in
connection with the ownership, management, maintenance,
operation, replacement, restoration and repair of the Buildings
and the Land, all computed on the accrual basis, including,
without limitation, the following items:
(a) gas, oil, electricity, steam, fuel, water, sewer and other
utility charges (including surcharges) of whatever nature
(excepting electricity charges for usage by tenants for
which any such tenant is billed separately), including,
without limitation, the proportion of costs (including but
not limited to oil, gas and electricity, repairs and
personnel) of the central heating and air conditioning plant
located on Lot 2 allocable to the provision of services to
the Buildings;
(b) insurance premiums and the amounts of any deductibles paid
by Landlord;
(c) on-site building personnel costs, including, but not limited
to, salaries, wages, fringe benefits, taxes, insurance and
other direct and indirect costs;
(d) costs of service and maintenance contracts including, but
not limited to, standard trash removal, cleaning and
security services;
(e) Landlord's share, as owner of Lot 2, of costs relating to
maintenance and operation of the Project which are shared
and allocated among owners of lots comprising the Project;
(f) all other maintenance, preventive maintenance, painting,
repair, restoration and replacement expenses (including, but
not limited to, all of Landlord's repairs in Section 8), and
the cost of materials, supplies and uniforms;
(g) the cost of an on-site office and segregated storage area
for Landlord's parts, tools, supplies;
(h) all professional fees incurred in connection with the
operation of the Buildings;
(i) management fees payable to the managing agent, provided that
such management fees shall not exceed 2% of annual fixed and
additional rent payable by all tenants of the Buildings;
(j) sales and use taxes and any taxes imposed on personal
property owned by Landlord and used in connection with the
Buildings and taxes on any of the expenses which are
included in Operating Expense;
(k) decorations for the lobby and other public portions of the
Buildings;
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(l) all costs and expenses of maintaining (including snow
removal), repairing and replacing paving, curbs, walkways,
driveways, roadways and landscaping; and
(m) the annual amortization of any Essential Capital Improvement
made by Landlord, computed based on the useful life of the
improvement with interest at the prime rate referenced in
Section 3 of the Lease determined as of the date of
completion of such Essential Capital Improvement. If
Landlord shall lease such Essential Capital Improvement,
then the rentals or other operating costs paid pursuant to
such lease shall be included in Operating Expense for each
Operating Year in which they are incurred.
Notwithstanding the foregoing, Operating Expense shall not
include the following:
(i) costs to prepare space for occupancy by a new tenant;
(ii) costs of capital improvements (except for costs of any
Essential Capital Improvement);
(iii) advertising expenses and leasing commissions;
(iv) any cost or expenditure for which Landlord is reimbursed,
whether by insurance proceeds or otherwise, but not
including costs and expenditures for which Landlord is
reimbursed by tenants of the Buildings pursuant to
operating expense reimbursement provisions;
(v) legal expenses of negotiating and enforcing leases;
(vi) special cleaning or other services not offered to all
tenants of the Buildings;
(vii) any charge for depreciation, interest or rental (except as
set forth above with respect to any Essential Capital
Improvement);
(viii) the cost of removal of asbestos-containing material not
related to the repair, maintenance or restoration of
equipment, as referred to in Section 8;
(ix) salaries of Landlord's officers and partners and its
headquarters staff;
(x) the cost of any repair made in accordance with Sections 11
or 12 of this Lease, except to the extent such cost is not
reimbursed by insurance;
(xi) any costs representing an amount paid to an affiliated
person of Landlord which is in excess of the amount which
would have been paid in the absence of such relationship;
and
(xii) any expenses of repairs or maintenance which are covered by
warranties, guarantees or service contracts (excluding any
mandatory deductibles).
In determining Operating Expense for any Operating Year, if the
Buildings were less than fully occupied during such entire year,
or were not in operation during such entire year, then Operating
Expense shall be adjusted by Landlord to reflect the amount that
such expenses would normally be expected to have been, in the
reasonable opinion of Landlord, had the Buildings been fully
occupied and operational throughout such year, except that in no
event shall such adjustment result in the recovery by Landlord of
an amount in excess of the actual Operating Expense. In
addition, if Landlord is not furnishing any particular work or
service (the cost of which, if performed by Landlord, would
constitute an Operating Expense) to a tenant who has undertaken
to perform such work or service in lieu of performance by
Landlord, Operating Expense shall nevertheless be deemed to
include the amount Landlord would reasonably have incurred if
Landlord had in fact performed the work or service at its
expense.
III. "OPERATING EXPENSE ADJUSTMENT" shall have the meaning set forth
in Subsection 2B below.
IV. "OPERATING EXPENSE ALLOWANCE" shall mean the actual Operating
Expense for Operating Year 1997, adjusted as set forth above.
V. "OPERATING EXPENSE ESTIMATE" shall have the meaning set forth in
Subsection 2B below.
VI. "OPERATING EXPENSE STATEMENT" shall mean a statement in writing
signed by Landlord, setting forth in reasonable detail (a) the
Operating Expense for the applicable Operating Year, (b) the
Operating Expense Allowance, (c) the Operating Expense Adjustment
for such Operating Year, or portion thereof, and (d) such other
information as Landlord deems appropriate.
VII. "OPERATING YEAR" shall mean each calendar year, or such other
period of twelve (12) months as hereafter may be adopted by
Landlord as its fiscal year for purposes of Operating Expense,
occurring during the Lease Term.
B. Payment of Operating Expense Adjustment. If the Operating Expense
for any Operating Year shall be in excess of the Operating Expense
Allowance, Tenant shall pay to Landlord as Additional Rent an amount
equal to Tenant's Proportionate Share (as defined in Subsection 1A of
this Exhibit) of such excess. (The amount of Tenant's Proportionate
Share of such excess is hereinafter referred to as the "Operating
Expense Adjustment".) If the Commencement Date is any date other than
the first day of an Operating Year or if the expiration date of the
Lease Term is any date other than the last day of an Operating Year,
the Operating Expense Adjustment shall be allocated proportionately
to the amount of time in such Operating Year that the Lease Term is in
effect.
Tenant shall pay to Landlord, on account of the Operating Expense
Adjustment for each Operating Year, monthly installments in advance
equal to one-twelfth (1/12) of the estimated Operating Expense
Adjustment for such Operating Year (the "Operating Expense
Estimate"). Such installments shall be payable at such place as
Landlord may direct. From time to time during any Operating Year,
Landlord may furnish to Tenant the Operating Expense Estimate for
such Operating Year and, on the first day of the first month
following receipt of such Operating Expense Estimate, in addition
to the monthly installment of such new Operating Expense Estimate,
Tenant shall pay to Landlord (or
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Landlord shall credit to Tenant) any deficiency (or excess) between
(i) the total of the installments paid on account of the Operating
Expense Adjustment for such Operating Year, and (ii) the product of
one-twelfth (1/12) of such Operating Expense Estimate for such
Operating Year and the number of months which have elapsed during
such Operating Year prior to the due date of such payment. Until
the Operating Expense Estimate for any Operating Year is furnished
by Landlord, Tenant shall continue to pay monthly installments on
account of such Operating Year's Operating Expense Adjustment based
upon the last Operating Expense Estimate provided by Landlord to
Tenant. Following the end of each Operating Year, Landlord shall
furnish to Tenant an Operating Expense Statement. On the first day
of the first month following the receipt of such Operating Expense
Statement, Tenant shall pay to Landlord (or Landlord shall credit
or refund to Tenant) any deficiency (or excess) between the
installments paid on account of the preceding Operating Year's
Operating Expense Adjustment and the actual Operating Expense
Adjustment for such Operating Year.
Tenant shall have the right, during regular business hours, to
inspect the books and records used by Landlord in calculating the
Operating Expense Adjustment for a particular Operating Year, upon
not less than thirty (30) days prior notice given any time within
two (2) years following Tenant's receipt of the Operating Expense
Statement for such year; provided, however, that Tenant shall make
all payments required hereunder without delay. Unless Tenant shall
take written exception to any Operating Expense Statement within
sixty (60) days after the end of such two (2) year period (such
date, the "Exception Date"), such statement shall be final and
binding upon Tenant. Tenant's inspection of Landlord's books and
records shall be performed by an employee or employees of Tenant or
by a reputable public accounting firm or real estate company.
Tenant agrees that all information obtained by Tenant or by those
performing such inspection on behalf of Tenant shall at all times
remain confidential, and Tenant further agrees to take such action
as is necessary to insure the continued confidentiality of all such
information.
Landlord shall be permitted to adjust the Operating Expense
Adjustment for a particular Operating Year any time up to the
Exception Date relating to such Operating Year. Thereafter, such
Operating Expense Statement shall be final and binding upon
Landlord.
3. Personal Property Taxes. Tenant shall be responsible for all ad valorem
taxes on its personal property and on the value of the leasehold
improvements in Building 3 to the extent that the same exceed building
standard allowances (and if the taxing authorities do not separately
assess Tenant's leasehold improvements, Landlord may make a reasonable
allocation of imposition to such improvements).
4. Survival. If, upon expiration or termination of this Lease for any
cause, the amount of any Additional Rent due under this Lease has not
yet been determined, an appropriate payment from Tenant to Landlord, or
refund from Landlord to Tenant, shall be made promptly after such
determination, and such obligation shall survive the expiration or
termination of this Lease.
5. Adjustment of Fixed and Additional Rent. At Tenant's option, to be
exercised not more than ninety (90) days prior to the Commencement Date,
Landlord agrees to enter into an amendment to this Lease so that the
Fixed Rent will be increased to incorporate Tenant's proportionate share
of increases in real estate taxes and operating expenses for the years
1997 through 2001. To achieve this, the Fixed Rent for the period
commencing upon the Commencement Date will be increased by the sum of
(i) the Tax Adjustment for Tax Year 2001, and (ii) the Operating Expense
Adjustment for Operating Year 2001. Additional Rent thereafter will be
computed utilizing (i) a Tax Allowance defined as the Adjusted Taxes for
Tax Year 2001, and (ii) an Operating Expense Allowance defined as the
Operating Expense for Operating Year 2001. It is the intent of this
provision that the net income of the Landlord over the term of the Lease
not be reduced as a result of any of the foregoing adjustments.
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EXHIBIT "D"
SCHEDULE OF LANDLORD'S WORK
At no cost to Tenant, Landlord will:
Remove asbestos as reasonably necessary to permit Tenant to complete the
Tenant Work.
Create ADA-mandated parking spaces, curb cuts and access grades for the
disabled.
Rehabilitate landscaping in courtyard and at main entry.
Provide street number signage.
EXHIBIT "E"
JANITORIAL SPECIFICATIONS
DAILY - Night time coverage Monday through Friday.
1. Office Areas
a. Empty all trash containers and waste baskets.
b. Replace all trash liners.
c. Empty all ashtrays and receptacles and wipe clean with damp
cloth.
d. Dust all uncluttered desktops, file cabinets, counters, xxxxx
and ledges.
e. Vacuum all carpeted traffic lanes.
f. Dust mop and spot mop tile floors.
g. Vacuum all entrance mats and runners.
h. Remove smudges and finger prints from all doors, door frames,
partitions and switch plates.
i. Arrange all furniture neatly.
j. Wash and squeegee all entrance door glass, both sides.
k. Clean all entrance frames and ledges.
l. Highlight all lobbies, elevators, conference room and executive
areas to maintain superior level of appearance.
m. Remove all trash in specifically designated area and dispose of
in prescribed manner.
n. Clean and polish all drinking fountains.
o. Remove finger prints and smudges and dust all xxxxx and ledges.
p. Clean all coffee stations.
q. Clean chalkboards.
r. Provide shared use of day xxxxxx.
2. Restrooms
a. Clean and disinfect all restrooms.
b. Empty all waste containers.
c. Dry mop floor.
d. Fill all dispensers.
e. Spray disinfect all fixtures and urinals inside and outside.
f. Clean all toilet fixtures and urinals inside and outside.
g. Clean all sinks and counter tops.
h. Clean and polish all mirrors and brightwork.
i. Clean and polish outside of all waste containers.
j. Wash floor with disinfectant cleaner making sure all corners are
cleaned.
WEEKLY
a. Vacuum and spot clean all carpets.
b. Wipe desks and telephones.
c. Sweep stairwells.
MONTHLY
a. Clean all ceramic tile walls.
b. Clean all diffusers, registers and Venetian blinds.
c. Wash interior glass, both sides.
d. Wash stairwell treads and landings.
SEMI-ANNUALLY
a. Clean outside of windows.
b. Damp wipe diffusers and vents.
ANNUALLY
a. Clean inside of windows.
b. Shampoo carpeted traffic lanes.
c. Strip and refinish resilient floors.
d. Clean vertical surfaces.
EXHIBIT "F"
RULES AND REGULATIONS
1. DEFINITIONS. Wherever in these Rules and Regulations the word "Tenant"
is used, it shall be taken to apply to and include Tenant and its agents,
employees, invitees, licensees, subtenants and contractors, and is to be
deemed of such number and gender as the circumstances require. The word
"room" shall be taken to include the space covered by this Lease. The word
"Landlord" shall be taken to include the employees and agents of Landlord.
2. CONSTRUCTION. The streets, sidewalks, entrances, halls, passages,
elevators, stairways and other common areas provided by Landlord shall not be
obstructed by Tenant, or used by it for any other purpose than for ingress
and egress.
3. WASHROOMS. Toilet rooms, water-closets and other water apparatus shall
not be used for any purposes other than those for which they are constructed.
4. GENERAL PROHIBITIONS. In order to insure proper use and care of the
Buildings, without Landlord's prior written consent, to be withheld or
granted in Landlord's sole discretion, Tenant shall not:
a. Allow any sign, advertisement, notice or other marking to be
affixed to the interior or exterior of the Buildings, other than any signs
which are located within Building 3 and are not visible from outside of
Building 3;
b. Make improper noises or disturbances of any kind;
c. Xxxx or defile elevators, water-closets, toilet rooms, walls,
windows, doors or any other part of the Buildings;
d. Place anything on the outside of the Buildings, including roof
setbacks, window ledges and other projections;
e. Use or place any curtains, blinds, drapes or coverings over any
windows or upon the window surfaces which are visible from the outside of
Building 3;
f. Other than in connection with normal office decoration, fasten
any article, drill holes, drive nails or screws into the walls, floors,
woodwork, window mullions, or partitions; nor shall the same be painted,
papered or otherwise covered or in any way marked or broken;
g. Interfere with the heating or cooling apparatus;
h. Allow anyone but Landlord's employees to clean rooms;
i. Leave Building 3 without locking doors, stopping all office
machines (other than those machines required to be operated at all times),
and extinguishing all lights;
j. Install any shades, blinds, or awnings;
k. Use any electrical heating device;
l. Install call boxes or any kind of wire in or on the Buildings;
m. Manufacture any commodity, or prepare to dispense any foods or
beverages, whether by vending or dispensing machines or otherwise (other than
as may be permitted in any kitchenette/vending area(s) located within
Building 3 for use by Tenant's employees), or alcoholic beverages, tobacco,
drugs, flowers, or other commodities or articles;
n. Secure duplicate keys for rooms, except from Landlord, or
change the locks of any doors to or in Building 3;
o. Give its employees or other persons permission to go upon the
roofs of the Buildings; or
p. Place door mats in public corridors.
5. PUBLICITY. Tenant shall not use the names of the Buildings or the
Princeton Technology Center in any way in connection with its business except
as the address thereof. Landlord also shall have the right to prohibit any
advertising by Tenant which, in Landlord's opinion, tends to impair the
reputation of the Buildings or the Princeton Technology Center or their
desirability as buildings or locations for offices; and upon written notice
from Landlord, Tenant shall refrain from or discontinue such advertising.
6. BUSINESS MACHINES. Business machines and mechanical equipment which
cause vibration, noise, cold or heat that may be transmitted to any space
outside Building 3 shall be placed and maintained by Tenant, at its sole cost
and expense, in settings of cork, rubber or spring type vibration eliminators
sufficient to absorb and prevent such vibration, noise, cold or heat.
7. MOVEMENT OF EQUIPMENT. Landlord reserves the right to designate the
time when and the method whereby freight, small or large office equipment,
furniture, safes and other like articles may be brought into, moved, or
removed from the Buildings or rooms, and to designate the location for
temporary disposition of such items. In no event shall any of the foregoing
items be taken from Tenant's space for the purpose of removing same from the
Buildings, other than in the ordinary course of Tenant's business, without
the express consent of both Landlord and Tenant.
8. PUBLIC ENTRANCE. Landlord reserves the right to exclude the general
public from the Buildings upon such days and at such hours as in Landlord's
judgment will be for the best interest of the Buildings and its tenants.
9. RIGHTS RESERVED TO LANDLORD. Without abatement or diminution in rent,
Landlord reserves and shall have the following additional rights:
a. To change the name and/or street address of the Buildings;
b. To install and maintain a sign or signs on the exterior of the
Buildings;
F-1
c. To approve all sources furnishing sign painting and lettering,
ice, drinking water, towels and toilet supplies, and other like services used
in Building 3;
d. To make, either voluntarily or pursuant to governmental
requirement, repairs, alterations or improvements in or to the Buildings or
any part thereof and during alterations, to close entrances, doors, windows,
corridors, elevators or other facilities, provided that such acts (except in
emergencies) shall not unreasonably interfere with Tenant's use and occupancy
of Building 3 as a whole;
e. If Tenant vacates all or any portion of Building 3 prior to
the expiration of the Lease Term, to decorate, remodel, repair, alter or
otherwise prepare all or such portion of Building 3, as applicable, for
re-occupancy;
f. To constantly have pass keys to Building 3, which keys
Landlord must secure at all times;
g. To grant to anyone the exclusive right to conduct any
particular business or undertaking in the Buildings; and
h. To take any and all measures, including inspections, repairs,
alterations, additions and improvements to the Buildings, as may be necessary
or desirable in the operation of the Buildings, provided that such acts
(except in emergencies) shall not unreasonably interfere with Tenant's use
and occupancy of Building 3 as a whole.
Subject to the provisions hereof, Landlord may enter Building 3 and may
exercise any or all of the foregoing rights hereby reserved without being
deemed guilty of an eviction or disturbance of Tenant's use or possession and
without being liable in any manner to Tenant.
10. REGULATION CHANGE. Landlord shall have the right to make such other and
further reasonable Rules and Regulations, as in the judgment of Landlord, may
from time to time be needful for the appearance, care and cleanliness of the
Buildings, for the preservation of good order therein, and for the health and
safety of the tenants and their visitors, provided that all such Rules and
Regulations shall be enforced by Landlord in a nondiscriminatory fashion.
Landlord shall not be responsible to Tenant for any violation of Rules and
Regulations by any other tenant, but shall use reasonable efforts to enforce
such compliance with the Rules and Regulations.
10. CONFLICT WITH LEASE. If the terms of this Exhibit shall be in conflict
with the terms set forth in the body of the Lease, the terms set forth in the
body of the Lease shall prevail.
F-2
EXHIBIT "G"
FORM OF
TENANT ESTOPPEL CERTIFICATE AND STATEMENT
_____________________
(Tenant)
The undersigned (jointly and severally if more than one) hereby
represents, warrants and certifies to _______________________________________
(the "Landlord") that it is the tenant and present occupant (the "Tenant") of
certain premises (the "Demised Premises") comprising a portion of the real
property and improvements in the buildings (the "Buildings") located at
___________________________________ and that:
1. Basic Lease Terms - The Demised Premises are more specifically described
in, and are leased under the provisions of, a lease agreement (the
"Lease"), the basic terms of which are described below:
1.1. Demised Premises/Suite: _____________; Floor_______
1.2. Rentable Square Feet of Demised Premises: _________
1.3. Date of Lease: ____________________________________
1.4. Commencement Date: _____________________________
1.5. Expiration Date: __________________________________
1.6. Current Annual/Monthly Fixed Rent: $_____ / $______
1.7. Current Monthly Additional Rent: $_________________
1.8. Total Monthly Rent As of : $____________
1.9. Tenant's Proportionate Share: ____________________%
1.10. Security Deposit: $________________________________
1.11. Total Rent Is Paid Through: _______________________
2. MODIFICATIONS. The Lease contains all of the understandings and agreements
between Tenant and Landlord, and is in full force and effect, without
modification, addition, extension, or renewal on the date hereof, except as
indicated below:
___________________________________________________________________________
___________________________________________________________________________
3. ACCEPTANCE OF DEMISED PREMISES. Tenant has accepted possession of
Building 3 and is now in possession of same, and the improvements and space
required to be furnished according to the Lease have been fully delivered
by Landlord and accepted by Tenant.
4. OPTIONS. There are no purchase options, rights of first refusal, rights of
first offer, options to terminate, exclusive business rights, or other
rights in Tenant to extend or renew the Lease Term or to expand or
otherwise modify Building 3, except as indicated below:
_______________________________________________________
_______________________________________________________
_______________________________________________________
5. COMMENCEMENT OF RENTAL OBLIGATION. Tenant's obligation to pay rent has
commenced, unless indicated below:
_______________________________________
_______________________________________________________________________
6. Rent Payment. No rent has been paid by Tenant in advance under the Lease,
except for the Total Monthly Rent, as described above, that became due
for the current month.
7. No Tenant Default. Tenant is not in default under the Lease and is
current in the payment of any and all charges required to be paid by
Tenant, except as indicated below:_______________________________
_____________________________________________________________________
__________________________________.
8. SUBORDINATION AND ATTORNMENT. In the event that Landlord's interest is
conveyed or Landlord otherwise relinquishes possession of Building 3 to a
third party, including but not limited to any mortgagee or successor in
interest to any such mortgagee, the undersigned agrees to attorn to such
third party and to recognize such third party as landlord. Tenant agrees
to subordinate to any mortgagee or successor in interest to any such
mortgagee as more fully set forth in the Lease. Any such attornment or
subordination shall be effective and self-operative without the execution
of any other instrument by either party hereto but, upon the request of
such landlord, the undersigned shall execute and deliver an instrument
confirming such attornment or subordination.
9. NO DEFENSE. Tenant has no defenses, set-offs, basis for withholding of
rent, claims or counterclaims against Landlord for any failure of
performance of any of the terms of the Lease, nor to the best of Tenant's
knowledge are there defaults or breaches by Landlord under the Lease,
including, without limitation, defaults relating to the design, condition
and tenant uses of the Buildings.
10. NO PRIOR ASSIGNMENT OR SUBLETTING. Tenant has not assigned, pledged,
mortgaged or otherwise transferred or encumbered the Lease or the rental
payments thereunder, nor sublet all or any part of Building 3 and is not
presently permitting the same to be occupied or used by anyone other than
Tenant except as indicated below:
___________________________________________________________________________
_______________________________________________________________________.
11. USE OF PREMISES. Tenant has not accumulated, recycled, stored, treated,
spilled, emitted, leaked or disposed of any hazardous, toxic or polluting
substances or wastes at the property. Tenant has not received notice from
any governmental agency that it may be
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responsible for clean-up of the property or surrounding areas pursuant to
the Federal Comprehensive Environmental, Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq., the Federal Water Pollution
Control Act (33 U.S.C.A. Section 1151 et seq.), the Clean Water Act of 1977
(33 U.S.C.A. Section 1251 et seq.), or the regulations promulgated
thereunder (if applicable), or any other federal, state or local
environmental law, regulation or ordinance.
The undersigned makes this Certificate and Statement with the
understanding that Landlord and any others with which Landlord may be dealing
intend to rely upon this Certificate and Statement and the undersigned agrees
that they may so rely.
Dated: ________________, 199_.
_________________________________________
(Name of Tenant)
By:______________________________________
Name: ___________________________________
Title: __________________________________
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EXHIBIT "H"
PROPERTY ENVIRONMENTAL STATUS
IBM, the former owner of the property, manufactured computer punch cards
and printer ribbons at the South Brunswick facility during which time IBM
utilized a common degreasing agent known as TCA. In December 1977, TCA was
discovered in the groundwater beneath the Land. As a result, IBM entered
into an Administrative Consent Order ("ACO") with the New Jersey Department
of Environmental Protection ("NJDEP") to perform a groundwater remediation
program which is still ongoing. IBM is solely responsible for the complete
remediation of the Land with respect to pre-purchase conditions to current
NJDEP standards. The ACO, as amended, is filed of public record.
EXHIBIT "I"
HEATING, VENTILATION AND AIR CONDITIONING SPECIFICATIONS
Landlord shall provide air conditioning and winter humidification on a
year-round basis throughout Building 3. The equipment shall maintain a
uniform (1) indoor temperature of 76 degrees F.D.B. at 50% R.H, 5% automatic
control in summer based on the local 2-1/2% outdoor design condition as
specified in the latest edition of the "ASHRAE HANDBOOK OF FUNDAMENTALS" and
(2) indoor temperature of 72 degrees F.D.B. at 30% R.H. minimum in winter
based on the local 97.5% outdoor design condition as specified in the latest
edition of the "ASHRAE HANDBOOK OF FUNDAMENTALS". Automatic reset on the
humidifiers to prevent condensation on walls and glass during extreme cold
weather shall be installed. Temperature control shall be automatic and shall
maintain temperature set at + or - 2 degrees F. All systems shall conform to
local and national codes. In the event that Tenant exercises any right under
the Lease, or otherwise, to modify the systems in Building 3, such that the
air conditioning and winter humidification systems do not meet the above
standards, Tenant shall be responsible for performing such additional work so
that the air conditioning and winter humidification systems do meet the above
standards.
EXHIBIT "J"
HOLIDAYS
New Year's Day
Presidents' Day
Memorial Day
Independence Day*
Labor Day
Thanksgiving
Day following Thanksgiving
Christmas*
* When July 4 or Christmas falls on a Tuesday, Monday is also
deemed a Holiday; and when July 4 or Christmas falls on a
Thursday, Friday is also deemed a Holiday.
EXHIBIT "K"
PLAN OF PROPERTY AND PARKING AREAS
(to be provided)
EXHIBIT "L"
TENANT WORK
1. Completion Schedule. Within one hundred twenty (120) days after the
execution of this Lease, Tenant shall deliver to Landlord, for Landlord's
review and approval, a schedule ("Work Schedule") setting forth a timetable
for the planning and completion of the installation of improvements to be
constructed by Tenant in Building 3 (the "Tenant Work"). The Work Schedule
shall set forth each of the various items of work to be done by or approval
to be given by Landlord and Tenant in connection with the completion of the
Tenant Work. Such Work Schedule shall be submitted to Landlord for its
approval and, upon approval by both Landlord and Tenant, such Work Schedule
shall become the basis for completing the Tenant Work.
2. Tenant Work. Reference herein to "Tenant Work" shall include all work
to be done in Building 3 pursuant to the Tenant Work Plans described in
Section 3 below, including, but not limited to, partitioning, doors,
ceilings, floor coverings, wall finishes (including paint and wall covering),
electrical (including lighting, switching, telephones, outlets, etc.),
plumbing, heating, ventilating and air conditioning, fire protection,
cabinets and other millwork.
3. Tenant Work Plans. Immediately after the execution of the Lease,
Tenant's architect shall prepare final working drawings and specifications
for the Tenant Work. Such final working drawings and specifications are
referred to herein as the "Tenant Work Plans." The Tenant Work Plans must be
consistent with Landlord standards, conform to all applicable laws,
ordinances, regulations, codes and other requirements of governmental
authorities and with the regulations of Landlord's insurance underwriter and
meet the further requirements set forth in the Schedule attached hereto. Any
such working drawings shall be reviewed and approved or disapproved by
Landlord (any disapproval being accompanied by a detailed explanation of the
reason for such disapproval) within ten (10) days after submission to
Landlord. Following approval of such working drawings, or revised working
drawings, as the case may be, the working drawings shall be submitted to the
appropriate governmental bodies by Tenant's architect for plan checking, the
issuance of a building permit, and securing of all other necessary
governmental approvals. Tenant, with Landlord's cooperation and subject to
Landlord's approval, not to be unreasonably withheld, shall cause to be made
any changes in the plans and specifications necessary to obtain the building
permit.
4. Construction of Tenant Work. After the Tenant Work Plans have been
prepared and approved, and a building permit for the Tenant Work has been
issued, Tenant, upon Landlord's approval, shall enter into a construction
contract with its contractor for the installation of the Tenant Work in
accordance with the Tenant Work Plans. All contractors or subcontractors of
Tenant, and any contract entered into between Tenant and any contractor,
shall be approved by Landlord prior to work commencement. Tenant shall
supervise the completion of such work and shall use due diligence to secure
substantial completion of the work in accordance with the Work Schedule. The
Tenant Work shall be constructed in accordance with the Tenant Work Plans
approved by Landlord, the requirements of all applicable laws, ordinances,
regulations, codes and other requirements of governmental authorities and
with the regulations of Landlord's underwriter. In addition, the Tenant Work
shall be constructed in a thorough, first-class and workmanlike manner and
shall be in good and usable condition at the date of completion. At any time
and from time to time during the construction of the Tenant Work, Landlord,
Landlord's architect and Landlord's general contractor may enter upon
Building 3 and inspect the Tenant Work and take such steps as they may deem
necessary for the protection of the Buildings. Such inspection shall,
however, be for Landlord's benefit only and may not be relied upon by Tenant
or any other party. A portion of the cost of constructing the Tenant Work
shall be paid as provided in Section 5 hereof.
5. Payment of Cost of the Tenant Work.
(a) Landlord hereby grants to Tenant a "Tenant Allowance" of up to
Twenty Dollars ($20.00) per square foot of Rentable Area of Building 3 for a
total of up to Six Hundred Thousand Dollars ($600,000). Such Tenant
Allowance shall be used only for:
(1) Preparing the drawings and specifications, including
architectural, mechanical, electrical, plumbing and structural drawings
and all other aspects of the Tenant Work Plans.
(2) Plan check, permit and license fees relating to construction of
the Tenant Work.
(3) Construction of the Tenant Work, including, without limitation,
the following:
(a) Installation within Building 3 of all partitioning, doors,
floor coverings, ceilings, wall coverings and painting,
millwork and similar items.
(b) All electrical wiring, lighting fixtures, outlets, emergency
generators and switches, and other electrical work to be
installed within or outside of Building 3.
(c) The furnishing and installation of all duct work, terminal
boxes, diffusers and accessories required for the completion
of the heating, ventilation and air conditioning systems
within Building 3.
(d) Any additional Tenant requirements including, but not
limited to, odor control, special heating, ventilation and
air conditioning, noise or vibration control or other
special systems.
(e) All fire and life protection systems such as fire walls,
alarms, including accessories, safety control systems,
sprinklers, fire piping, and wiring installed within
Building 3.
(f) Installation of the security systems in Building 3.
(g) All plumbing, fixtures, pipes and accessories to be
installed within Building 3.
(h) Testing and inspection costs.
(i) Reasonable contractors' fees, including, but not limited to,
any fees based on general conditions.
(4) All other out-of-pocket costs to be expended by Landlord in
the approval or construction of the Tenant Work, excluding those costs
incurred by Landlord for construction of Landlord's Work, as noted in Exhibit
"D".
(b) The cost of each item shall be charged against the Tenant
Allowance. In the event that the cost of installing the Tenant Work, as
established by Tenant's final pricing schedule, shall exceed the Tenant
Allowance, or if any of the Tenant Work is not to be paid out of the Tenant
Allowance as provided above, the excess shall be paid by Tenant.
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6. Applications for Tenant Allowance.
(a) At any time after the date hereof, the Tenant Allowance shall be
paid by Landlord (x) to Tenant to reimburse Tenant for amounts theretofore
paid to Tenant's vendors, suppliers or contractors upon receipt of paid
invoices, or (y) directly to Tenant's vendors, suppliers or contractors,
promptly upon Landlord's receipt of invoices for the cost of the work
delivered by Tenant to Landlord for payment to such vendors, suppliers or
contractors together with a letter (a "Direction of Payment Letter")
authorizing and directing Landlord to pay such invoices, and, provided that
whether Landlord shall reimburse Tenant pursuant to clause (x) or shall pay
Tenant's vendors, suppliers or contractors pursuant to clause (y), Landlord
shall have received (a) a certificate signed by Tenant and Tenant's Architect
setting forth (i) that the sum then requested was paid or is owed by Tenant
and was or is due to contractors, subcontractors, materialmen, engineers and
other persons who have rendered services or furnished materials in connection
with work on the Tenant Work, (ii) a complete description of such services
and materials and the amounts paid or to be paid to each of such persons in
respect thereof, (iii) that the work described in the certificate has been
completed substantially in accordance with the Tenant Work Plans and (iv) the
amount of all previous payments made by Landlord hereunder with respect to
Tenant Work and that no part of the sums being requested were part of a prior
request for which payment was made, (b) paid receipts or such other proof of
payment as Landlord shall reasonably require for all such work completed
(other than that which is the subject of the then pending disbursement in the
event Landlord is paying Tenant's vendors, suppliers or contractors directly)
and (c) lien waivers satisfactory to Landlord executed by any contractors or
subcontractors furnishing labor or supplying materials in connection with
such work with respect to all portions thereof previously completed (other
than that which is the subject of the then pending disbursement in the event
Landlord is paying Tenant's vendors, suppliers or contractors directly).
Landlord shall reimburse Tenant or pay such invoices on behalf of Tenant
within thirty (30) days after Landlord's receipt of a written request for
reimbursement from Tenant or Direction of Payment Letter and shall debit the
Tenant Allowance therefor, provided further, however, that (x) Tenant shall
not submit a request for reimbursement or a Direction of Payment Letter more
than once per calendar month, and (y) an amount equal to 10% of the Tenant
Allowance shall be held back by Landlord until Tenant has complied with the
requirements of subsection (b) below.
(b) The funds remaining to be advanced hereunder but not advanced
pursuant to subsection (a) above shall not be deemed to be due and payable
until (i) the Tenant shall submit to the Landlord a final application, and
(ii) the Tenant shall deliver to the Landlord reasonably satisfactory
evidence that final payment has been made for all materials and labor
furnished in connection with the Tenant Work; and (B) a copy of a final
unconditional certificate of occupancy evidencing that Tenant may commence
occupancy of Building 3 for all purposes set forth in this Lease.
7. Insurance.
(a) All of Tenant's contractors shall maintain the following insurance
coverages in the minimum amounts specified below or such greater amounts as
may be required by Landlord based upon the risks of the project or good
insurance practices:
(1) Commercial General Liability Insurance including
Products/Completed Operations, Owners and Contractors Protective
Liability and Broad Form Contractual Liability with the exclusion
pertaining to explosion collapse and underground property damage
hazards eliminated.
(2) Business Automobile Liability Insurance including owned, hired,
and non-owned automobiles.
(3) Statutory Workers' Compensation Insurance, including occupational
disease with employers' liability limits not less than mandated
by statute.
(b) In addition to the foregoing insurance coverages, during the course
of construction, Tenant or Tenant's general contractor or construction
manager shall maintain "All-risk" builder's risk insurance for the full
replacement cost of the Tenant Work.
(c) The insurance identified under a(i) and (ii) above shall (a) be in
such amounts as may be reasonably determined by Landlord (but not less than
$1,000,000 or more than $5,000,000), depending on the scope and nature of the
Tenant Work, (b) name Landlord and any other parties designated by Landlord
as additional insureds, (c) be in companies licensed to do business in New
Jersey and reasonably satisfactory to Landlord, and (d) provide that the
policies will not be changed, canceled or expire until at least thirty (30)
days prior written notice has been given to Landlord. Evidence of all
coverage shall be delivered to Landlord prior to any such contractor or
subcontractor commencing work in the Buildings. The liability of Tenant, its
contractors and subcontractors shall not be limited because of the insurance
required hereunder nor to the amounts thereof nor because of any exclusions
from coverage in any insurance policy.
8. Performance Bonds. Unless Tenant or its general contractor provides
payment and performance bonds for the full cost of the Tenant Work, each
contract and subcontract providing for materials and/or services with a value
in excess of $25,000 shall require the Tenant's general contractor thereunder
to obtain payment and performance bonds in the full amount of its contract or
subcontract. All bonds required pursuant to this provision shall be in form
reasonably acceptable to Landlord, shall be issued by reputable surety
companies licensed to do business in New Jersey and shall name Landlord and
Tenant as obligees.
9. Landlord Procedures. Tenant shall comply with all procedures and
policies established by Landlord from time to time relating to construction
by tenants in the Building.
10. Coordination of Work. Construction of the Tenant Work shall be
coordinated with all work being performed by Landlord to the end that the
Tenant Work will not interfere with the operation of the Building or
interfere with or delay the completion of any other construction within the
Building. Such work shall be performed in a manner so as not to disturb or
annoy other tenants or occupants of the Project and shall be performed only
during such hours and under such conditions as shall be established by
Landlord.
11. Safety. Tenant shall cause Tenant's contractors to (i) take all
precautions necessary for the prevention of accidents and for the safety of
persons and property, (ii) comply with all applicable laws, ordinances,
rules, regulations and orders of any public authority relating thereto, and
(iii) promptly report to Landlord any injury and furnish Landlord a written
accident report within 24 hours of the accident and a copy of the accident
report filed with its insurance carrier at the time of filing of such report.
12. Miscellaneous Construction Obligations.
(a) Tenant and Tenant's contractors shall be solely responsible for the
transportation, safekeeping and storage of materials and equipment used in
the performance of the Tenant Work, for the removal of waste and debris
resulting therefrom, and for any damage caused by them to any part of the
Project. It shall be Tenant's responsibility to cause each of Tenant's
contractors to maintain continuous protection of adjacent property and
improvements against damage by reason of the performance of the Tenant Work.
It shall also be Tenant's responsibility to cause each Tenant's contractor to
properly protect the Tenant Work. Any damage caused by Tenant's contractors
to any portion of the Building or to any property of Landlord shall be
repaired to its condition prior to such damage at no expense to Landlord.
L-2
(b) Tenant shall cause Tenant's contractors to (i) keep Building 3 and
adjacent areas, including without limitation the loading docks, elevators,
logistic areas and surrounding areas, free from accumulations of waste
material or rubbish, (ii) keep dirt and dust from infiltrating into adjacent
tenant, common and mechanical areas, (iii) protect the front and top of all
perimeter HVAC units and thoroughly clean them upon completion of work, (iv)
block off supply and return grills, diffusers and ducts to keep dust from
entering into the building HVAC system, (iii) forthwith remove all rubbish,
tools, equipment and materials from in and about Building 3 upon completion
of the work.
(c) Tenant's contractors may not use any space within the Building for
storage handling or moving of materials or equipment and/or for the location
of a field office or facilities for the employees of such contractor or
subcontractor without obtaining Landlord's prior written approval for each
such use. If any Tenant's contractor shall use any space in the Building for
any or all of the aforesaid enumerated purposes or any other similar purpose
without obtaining Landlord's written approval therefor, Landlord shall have
the right to terminate such use and remove all of such Tenant's Contractor's
materials, equipment and other property from such space, without Landlord
being liable to Tenant and/or to such Tenant's contractor, and the cost of
such termination and/or removal shall be paid by Tenant to Landlord.
(d) Tenant shall promptly pay all Tenant's contractors or apply for
such payment under the Tenant Allowance. Should any lien be made or filed in
connection with the Tenant Work the cost of which is Tenant's responsibility,
Tenant shall bond against or discharge the same within (10) days after
receiving notice thereof. If Tenant shall fail to cause such lien to be
bonded against or to be discharged within such period, then, in addition to
any other right or remedy which Landlord may have under this Lease, at law or
in equity, Landlord may, but shall not be obligated to, discharge the same
either by paying the amount claimed to be due or by procuring the discharge
of such lien by deposit or by bonding. Any amount so paid by Landlord and
all costs and expenses incurred by Landlord in connection therewith, together
with interest at the Default Rate from the respective dates of Landlord's
making of the payment and incurring of the cost and expense, shall constitute
Additional Rent payable by Tenant under this Lease and shall be paid by
Tenant to Landlord on demand.
(e) Upon completion of the Tenant Work, Tenant shall furnish Landlord
with contractors' affidavits and full and final waivers of liens and
receipted bills covering all labor and materials.
(f) Within sixty (60) days after the Tenant Work have been completed,
Tenant shall provide Landlord with a complete set of reproducible, record
drawings for the Buildings showing as-built conditions, including any
manuals, warranties or other such documents relating to the Tenant Work.
(g) Tenant shall indemnify, defend and hold harmless Landlord, its
agents, contractors and employees from and against all claims, damages,
liabilities, losses and expenses of whatever nature, including but not
limited to, reasonable attorneys' fees, arising out of or resulting from the
negligence or willful misconduct of Tenant, Tenant's contractors, or their
respective agents and employees in the course of exercising its rights under
this Exhibit "L". Tenant shall provide or cause to be provided in all
contracts with each Tenant's contractor that such Tenant's contractor shall
indemnify, defend and hold harmless Landlord, its agents and employees, from
and against all claims, damages, liabilities, losses and expenses of whatever
nature, including but not limited to, reasonable attorneys' fees, arising out
of or resulting from the negligence or willful misconduct of such Tenant's
contractor or its agents or employees in connection with the performance of
the Tenant Work. The foregoing indemnities shall be in addition to the
insurance requirements set forth in this Exhibit and shall not be in
discharge or substitution of same, and shall not be limited in any way by any
limitations on the amount or type of damages.
13. Tenant Improvement Payments. As noted in Exhibit "B", Fixed Rent to be
paid by Tenant from and after the Commencement Date includes amounts designed
to reimburse Landlord for a portion of the Tenant Allowance advanced by
Landlord, such amounts being based upon a 10 year level payment amortization
schedule with interest at 10%. Prior to the Commencement Date, Tenant shall
reimburse Landlord for the remainder of the Tenant Allowance (based upon the
same amortization schedule and interest rate), in equal consecutive monthly
payments of $7,875.00 (the "Tenant Improvement Payments"). The Tenant
Improvement Payments shall be due on the first day of each month during the
period commencing on January 1, 1997 and terminating on March 1, 2002. The
Tenant Improvement Payments shall constitute Additional Rent under this Lease.
L-3
Schedule
In addition to complying with the requirements for Plans and
Specifications generally (as set forth in this Exhibit "L"), the Tenant Work
Plans shall comply with the following requirements:
1. Architectural drawings must include the following:
(a) Partition locations and types (including any slab-to-slab partitions
or special acoustical treatment required);
(b) Door locations, door schedule, door frames and the swing of each door;
(c) Reflected ceiling plan;
(d) Millwork items;
(e) Hardware schedule;
(f) Finish schedule showing all finish types and locations; and
(g) Telephone rooms.
(h) Roof plans and penetrations.
2. Structural drawings must include the following:
(a) Location of any floor openings and stair drawings;
(b) Location and extent of any floor loading beyond building standard; and
(c) Any structural changes caused by Tenant's design (including raised
flooring).
3. Electrical drawings must include the following:
(a) Location and extent of any special electric requirements caused by
equipment such as computer hardware, copiers or supplemental A/C units
(i.e., separate circuiting, coaxial cabling, etc.);
(b) Estimate of total electrical load on each floor;
(c) Location of all electrical outlets, switches, telephone outlets, exit
signs, and lighting fixtures;
(d) Location of all computer equipment systems and special audio-visual
equipment; and
(e) Location and type of all fire alarm system devices and wiring.
4. Heating, ventilating and air conditioning (HVAC) drawings must include the
following:
(a) Location of any duct work, ceiling diffusers, and thermostats;
(b) Variable air volume (VAV) unit quantities and sizing information;
(c) Location and sizing of any supplemental HVAC equipment; and
(d) Estimate of total HVAC load on each floor.
5. Plumbing drawings must include the following (if applicable):
(a) Location of kitchen, kitchenettes, etc.;
(b) Location of drinking fountains; and
(c) Location of sinks and toilets (other than base building).
6. Sprinkler and other fire suppression system drawings and specifications and
design calculations.
7. Tenant security system must include:
(a) A preliminary outline equipment brochure and riser diagram indicating
all components (electrical power characteristics, voltages, and
specific locations on plan);
(b) All requirements for dedicated circuits;
(c) All requirements for bonding and grounding;
(d) All requirements for outside connections to the telephone company or a
central protective alarm agency;
(e) All emergency circuiting requirements; and
(f) The type, sizes, quantities and location of all required cable and
circuit.
L-4
EXHIBIT "M"
SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made and entered into this ____ day of ___________, 19__, by
and among Teleport Communications Group Inc., a Delaware corporation
("Tenant''), with a mailing address of _______________________________________,
and ______________________________, a __________ corporation ("Mortgagee"),
with a mailing address of ______________________________________________ and
South Brunswick Investors, L.P., a Delaware limited partnership ("Landlord")
with a mailing address of __________________________________.
W I T N E S S E T H:
WHEREAS, Landlord and Tenant have entered into a lease (the
"Lease") dated ____________________ of certain premises (the "Premises")
situate ___________________, erected on the tract of land described in
Exhibit "A" attached hereto and made a part hereof; and
WHEREAS, Landlord is about to make, execute and deliver to
Mortgagee a certain promissory note secured by a first lien Mortgage on the
Premises (the "Mortgage"); and
WHEREAS, the Lease will be assigned by Landlord to Mortgagee as
further security for the promissory note.
NOW, THEREFORE, in consideration of the mutual promises hereinafter
contained and other good and valuable consideration, the receipt and
sufficiency whereof are hereby acknowledged, Tenant and Mortgagee, intending
to be legally bound hereby, covenant and agree as follows:
1. The Lease shall be subject and subordinate to the lien of the
Mortgage and to all the terms, conditions and provisions thereof, and to any
renewals, extensions, modifications or replacements thereof, to the full
extent of the principal sum secured by the Mortgage, all interest accrued and
from time to time unpaid thereon and any other amounts required to be paid by
the terms of the Mortgage and the instruments secured thereby, unless
Mortgagee elects to subordinate the mortgage to the Lease.
2. Provided Tenant is not in default beyond the applicable grace
period provided for in the Lease:
(a) Tenant shall not be joined as an adverse or party
defendant in any action or proceeding which may be instituted or commenced by
Mortgagee to foreclose or enforce the Mortgage, unless Tenant is deemed to be
a necessary party.
(b) Tenant shall not be evicted from the Premises nor shall
any of Tenant's rights under the Lease be affected or disturbed in any way by
reason of this subordination or any modifications of or default under the
Mortgage.
(c) Tenant's leasehold estate under the Lease shall not be
terminated or disturbed during the term of the Lease as it may be extended,
by reason of any default under the Mortgage.
(d) Provided Landlord is not in default under the terms of
the Mortgage, Mortgagee hereby subordinates and subjects its right to any
portion of the insurance proceeds otherwise payable to Landlord and/or
Mortgagee, when and to the extent necessary for Landlord to comply with its
obligations of repair and restoration as required by the provisions of the
Lease.
(e) If Mortgagee or any successor in interest to it shall
succeed to the rights of Landlord under the Lease, whether through
possession, termination or cancellation of the Lease, surrender, assignment,
judicial action, sublettings, foreclosure action or delivery of a deed or
otherwise, Tenant will attorn to and recognize such successor-landlord as
Tenant's landlord and the successor-landlord will accept such attornment and
recognize Tenant's rights of possession and use of the Premises in accordance
with the provisions of the Lease and, without further evidence of such
attornment and acceptance, the parties shall be bound by and comply with all
the terms, provisions, covenants and obligations contained in the Lease, on
their respective parts to be performed. Such successor-landlord shall not,
however, be:
(i) liable for any act or omission of Landlord or any
prior landlord;
(ii) obligated to Tenant for any security deposit or other
sums deposited with any prior landlord (including Landlord) under the Lease and
not physically delivered to Mortgagee;
(iii) bound by any rent or additional rent which the
Tenant might have paid for more than the current month to any prior landlord
(including Landlord);
(iv) bound by any amendment or modification of the Lease or
any cancellation or surrender of the Lease made without the consent of Mortgagee
subsequent to the date hereof;
(v) subject to any offsets, claims or defenses which
Tenant might have against any prior landlord (including Landlord);
(vi) bound or liable under any written or oral notice
given by Tenant to Landlord or any prior landlord and not given in writing to
such successor-landlord; or
(vii) obligated or liable (financially or otherwise)
on account of any representation, warranty, or indemnification obligation of
Landlord with respect to hazardous materials, asbestos, or other
environmental laws, claims or liabilities, whether expressly stated as such
or subsumed within general obligations to comply with laws or preserve the
benefits of Tenant's use and enjoyment of the Premises.
3. Tenant agrees to give Mortgagee a copy of any notice of
default served upon the Landlord, at Mortgagee's address stated on page one
hereof or such other address designated in writing to Tenant. Tenant further
agrees that if Landlord shall have failed to cure such default within the
time provided in the Lease, then the Mortgagee shall have an additional
thirty (30) days within which to cure such default or if such default cannot
be cured within that time, then such additional time as may be necessaary to
cure such default shall be granted if within such thirty (30) days Mortgagee
has commenced and is diligently pursuing the remedies necessary to cure such
default (including, but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure) in which event the Lease shall
not be terminated which such remedies are being so diligently pursued.
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4. Landlord and Tenant each agree not to amend, modify or accept
a termination of the Lease without the prior written consent of the
Mortgagee, which consent shall not be unreasonably withheld or delayed.
5. (a) Tenant will not pay an installment of rent or any part
thereof more than thirty (30) days prior to the due date of such installment.
(b) After notice from Mortgagee to Tenant, Tenant will pay to
Mortgagee, or to such person or firm designated by Mortgagee, all rentals and
other monies due and to become due to Landlord under the Lease.
6. This Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective heirs, executors, distributees,
administrators, legal representatives, successors and assigns and may not be
modified orally or by any course of conduct other than except by a written
instrument signed by both parties hereto.
7. All notices required or permitted by this Agreement shall be
given by (i) hand delivery, (ii) U.S. Registered or Certified Mail, return
receipt requested, or (iii) nationally reputable overnight courier service,
and shall be addressed to the recipient at the respective address specified
in the opening paragraph of this Agreement. No notice shall be effective
unless and until actually received.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed under seal as of the day and year first above written.
TENANT:
TELEPORT COMMUNICATIONS GROUP INC.
____________________________________
By:
Name:
Title:
LANDLORD:
SOUTH BRUNSWICK INVESTORS, L.P.
____________________________________
By:
Name:
Title:
MORTGAGEE:
____________________________________
By:
Name:
Title:
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Notary Form of Landlord
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Notary Form of Tenant
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Notary Form of Mortgagee
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