Exhibit 10.22
LEASE
FROM:
SYLVAN/ CAMPUS REALTY L.L.C.
LESSOR
TO:
THE MEDICINES COMPANY
LESSEE
BUILDING:
0 XXXXXX XXXXX
XXXXXXXXXX, XXX XXXXXX
TABLE OF CONTENTS
1. DESCRIPTION:.................................................... 3
2. TERM:........................................................... 3
3. BASIC RENT:..................................................... 3
4. USE AND OCCUPANCY:.............................................. 3
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:...................... 3
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:......................... 6
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:..................... 6
8. ASSIGNMENT AND SUBLEASE:........................................ 6
9. COMPLIANCE WITH RULES AND REGULATIONS:.......................... 10
10. DAMAGES TO BUILDING:............................................ 10
11. EMINENT DOMAIN:................................................. 10
12. INSOLVENCY OF LESSEE:........................................... 11
13. LESSOR'S REMEDIES ON DEFAULT:................................... 11
14. DEFICIENCY:..................................................... 11
15. SUBORDINATION OF LEASE:......................................... 12
16. SECURITY DEPOSIT:............................................... 12
17. RIGHT TO CURE LESSEE'S BREACH:.................................. 13
18. MECHANIC'S LIENS:............................................... 13
19. RIGHT TO INSPECT AND REPAIR:.................................... 13
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:......... 14
21. INTERRUPTION OF SERVICES OR USE:................................ 14
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:.................... 14
23. ADDITIONAL RENT:................................................ 16
24. LESSEE'S ESTOPPEL:.............................................. 18
25. HOLDOVER TENANCY:............................................... 18
26. RIGHT TO SHOW PREMISES:......................................... 19
27. LESSOR'S WORK - LESSEE'S DRAWINGS:.............................. 19
28. WAIVER OF TRIAL BY JURY:........................................ 19
29. LATE CHARGE:.................................................... 19
30. LESSEE'S INSURANCE:............................................. 19
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31. NO OTHER REPRESENTATIONS:....................................... 21
32. QUIET ENJOYMENT:................................................ 21
33. INDEMNITY:...................................................... 21
34. ARTICLE HEADINGS:............................................... 22
35. APPLICABILITY TO HEIRS AND ASSIGNS:............................. 22
36. OUTSIDE PARKING SPACES:......................................... 22
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:........................ 22
38. PARTIAL INVALIDITY:............................................. 22
39. LESSEE'S BROKER:................................................ 22
40. PERSONAL LIABILITY:............................................. 23
41. NO OPTION:...................................................... 23
42. DEFINITIONS:.................................................... 23
43. LEASE COMMENCEMENT:............................................. 24
44. NOTICES:........................................................ 24
45. ACCORD AND SATISFACTION:........................................ 24
46. EFFECT OF WAIVERS:.............................................. 24
47. LEASE CONDITION:................................................ 25
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:..................... 25
49. LESSOR'S RESERVED RIGHT:........................................ 25
50. CORPORATE AUTHORITY:............................................ 25
51. AFTER-HOURS USE:................................................ 25
52. LESSEE'S EXPANSION/RELOCATION:.................................. 26
53. BUILDING PERMIT:................................................ 26
54. OPTION TO RENEW:................................................ 26
55. RIGHT OF FIRST OFFER:........................................... 27
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LEASE, is made the 30th day of September, 2002 between SYLVAN/ CAMPUS
REALTY L.L.C. (herein referred to as "Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and THE
MEDICINES COMPANY (herein referred to as "Lessee") whose address is 0 Xxxxxx
Xxx, Xxxxxxxxxx, Xxx Xxxxxx, 00000.
PREAMBLE
BASIC LEASE PROVISIONS AND DEFINITIONS
In addition to other terms elsewhere defined in this Lease, the following terms
whenever used in this Lease shall have only the meanings set forth in this
section, unless such meanings are expressly modified, limited or expanded
elsewhere herein.
1. ADDITIONAL RENT shall mean all sums in addition to Fixed Basic Rent
payable by Lessee to Lessor pursuant to the provisions of the Lease.
2. BASE PERIOD COSTS shall mean the following:
A. Base Operating Costs: Those Operating Costs incurred during
Calendar Year 2003.
B. Base Real Estate Taxes: Those Real Estate Taxes incurred during
Calendar Year 2003.
C. Base Utility and Energy Costs: Those Utility and Energy Costs
incurred during Calendar Year 2003
3. BUILDING shall mean 0 Xxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx.
4. BUILDING HOLIDAYS shall be those shown on Exhibit F.
5. BUILDING HOURS shall be Monday through Friday, 8:00 a.m. to 6:00 p.m., but
excluding those holidays as set forth on Exhibit F attached hereto and
made a part hereof, except that Common Facilities, lighting in the
Building and Office Building Area shall be maintained for such additional
hours as, in Lessor's sole judgement, is necessary or desirable to insure
proper operating of the Building and Office Building Area.
6. COMMENCEMENT DATE is the date of this Lease. RENT COMMENCEMENT DATE is the
date which is the earlier of (i) the date upon which Lessee, or anyone
claiming under or through Lessee, commences using the Premises for the
conduct of business, or (ii) the date which is ninety (90) days after the
date of this Lease.
7. DEMISED PREMISES OR PREMISES shall be deemed to be 16,779 gross rentable
square feet on the second (2nd) floor as shown on Exhibit A hereto, which
includes an allocable share of the Common Facilities as defined in Article
42(b).
8. EXHIBITS shall be the following, attached to this Lease and
incorporated herein and made a part hereof.
Exhibit A Location of Premises
Exhibit X-0 Xxxxxx Xxxxxxxx Xxxx
Xxxxxxx X Rules and Regulations
Exhibit C Lessor's Work
Exhibit C-1 Air Conditioning &
Heating Design Standards
Exhibit D Cleaning Services
Exhibit E Building Holidays
Exhibit F Tenant Estoppel Certificate
Exhibit G Commencement Date Agreement
Exhibit H Form of Letter of Credit
Exhibit I Exclusions from Operating Costs
9. EXPIRATION DATE shall be the last day of the month in which the day before
the ten (10) year anniversary of the Rent Commencement Date occurs.
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10. FIXED BASIC RENT shall mean: FIVE MILLION SEVENTY-FIVE THOUSAND SIX
HUNDRED FORTY-SEVEN AND 50/100 DOLLARS ($5,075,647.50) for the Term
commencing on the Rent Commencement Date payable as follows:
Year Yearly Rate Monthly Installments
---- ----------- --------------------
1 $469,812.00 $39,151.00
2 $478,201.50 $39,850.13
3 $486,591.00 $40,549.25
4 $494,980.50 $41,248.38
5 $503,370.00 $41,947.50
6 $511,759.50 $42,646.63
7 $520,149.00 $43,345.75
8 $528,538.50 $44,044.88
9 $536,928.00 $44,744.00
10 $545,317.50 $45,443.13
11. LESSEE'S BROKER shall mean Xxxxxxxx Xxxx Company.
12. LESSEE'S PERCENTAGE shall be 7.80% subject to adjustment as provided
in the Lease.
13. OFFICE BUILDING AREA is as set forth on Exhibit A-1.
14. PARKING SPACES shall mean a total of sixty-three (63) unassigned
surface parking spaces.
15. PERMITTED USE shall be general office use and for no other purpose.
16. SECURITY DEPOSIT shall be EIGHTY-FOUR THOUSAND FIVE HUNDRED NINETY-FIVE
AND 00/100 DOLLARS ($84,595.00)
17. TERM shall mean ten (10) years from the Rent Commencement Date, plus the
number of days, if any, to have the Lease expire on the last day of a
calendar month, unless extended pursuant to any option contained herein.
-- End of Preamble --
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W I T N E S S E T H
For and in consideration of the covenants herein contained, and upon
the terms and conditions herein set forth, Lessor and Lessee agree as follows:
1. DESCRIPTION:
Lessor hereby leases to Lessee, and Lessee hereby hires from Lessor, the
Premises as defined in the Preamble which includes an allocable share of
the Common Facilities, as shown on the plan or plans, initialed by the
parties hereto, marked Exhibit A attached hereto and made part of this
Lease in the Building as defined in the Preamble, (hereinafter called the
"Building") which is situated on that certain parcel of land (hereinafter
called "Office Building Area") as described on Exhibit A-1 attached hereto
and made part of this Lease, together, with the right to use in common
with other lessees of the Building, their invitees, customers and
employees, those public areas of the Common Facilities as hereinafter
defined.
2. TERM:
The Premises are leased for a term to commence on the Commencement Date,
and to end at 12:00 midnight on the Expiration Date, all as defined in the
Preamble.
3. BASIC RENT:
The Lessee shall pay to the Lessor during the Term, the Fixed Basic Rent
as defined in the Preamble (hereinafter called "Fixed Basic Rent") payable
in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts.
The Fixed Basic Rent shall accrue at the Yearly Rate as defined in the
Preamble and shall be payable, in advance, on the first day of each
calendar month during the Term commencing on the Rent Commencement Date at
the Monthly Installments as defined in the Preamble, except that a
proportionately lesser sum may be paid for the first and last months of
the Term of this Lease if the Term commences on a day other than the first
day of the month, in accordance with the provisions of this Lease herein
set forth. Lessor acknowledges receipt from Lessee of the first monthly
installment by check, subject to collection, for Fixed Basic Rent for the
first month of the Lease Term. Lessee shall pay Fixed Basic Rent, and any
Additional Rent as hereinafter provided, to Lessor at Lessor's above
stated address, or at such other place as Lessor may designate in writing,
without demand and without counterclaim, deduction or set off.
4. USE AND OCCUPANCY:
Lessee shall use and occupy the Premises for the Permitted Use as defined
in the Preamble.
Lessee hereby acknowledges "no smoking" is permitted in the Common
Facilities. Lessee shall use its best efforts to enforce Lessor's policy
prohibiting its employees, agents or invitees from smoking within the
Common Facilities including the areas outside of the Building's main
entrance.
5. CARE AND REPAIR OF PREMISES/ENVIRONMENTAL:
(a) Lessee shall commit no act of waste and shall take good care of the
Premises and the fixtures and appurtenances therein, and shall, in
the use and occupancy of the Premises, conform to all laws, orders
and regulations of the federal, state and municipal governments or
any of their departments affecting the Premises and with any and all
environmental requirements resulting from the Lessee's particular
use of the Premises, this covenant to survive the expiration or
sooner termination of the Lease. Notwithstanding anything to the
contrary contained in this Lease, Lessee shall not be required to
make any repairs, alterations or modifications to the Premises as a
result of any laws, orders and regulations of the federal, state and
municipal governments or any of their departments affecting the
Premises unless the need for
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such repairs, alterations or modifications arises from the
particular manner in which Lessee uses the Premises, and repairs,
alterations or modifications to the Premises as a result of any
laws, orders and regulations of the federal, state and municipal
governments or any of their departments affecting the Premises which
are required of all owners and tenants generally, and do not arise
from the particular manner in which an owner or tenant uses its
premises, shall be undertaken by and at the sole cost and expense of
Lessor and same may be included in Operating Costs pursuant to
Article 23 of this Lease. Lessor shall, subject to the same being
included in Operating Costs (except as expressly excluded in the
immediately preceding sentence.), make all necessary repairs to the
Premises, Common Facilities and to the assigned parking areas, if
any, except where the repair has been made necessary by misuse or
neglect by Lessee or Lessee's agents, servants, visitors or
licensees, in which event Lessor shall nevertheless make the repair
but Lessee shall pay to Lessor, as Additional Rent, immediately upon
demand, the costs therefor. All improvements made by Lessee to the
Premises, which are so attached to the Premises, shall become the
property of Lessor upon installation. Not later than the last day of
the Term, Lessee shall, at Lessee's expense, remove all Lessee's
personal property and those improvements made by Lessee which have
not become the property of Lessor, including trade fixtures,
cabinetwork, movable paneling, partitions and the like; repair all
injury done by or in connection with the installation or removal of
said property and improvements; and surrender the Premises in as
good condition as they were at the beginning of the Term, reasonable
wear and damage by fire, the elements, casualty or other cause not
due to the misuse or neglect by Lessee, Lessee's agents, servants,
visitors or licensees excepted and excluding maintenance and repairs
required to be undertaken by Lessor. All other property of Lessee
remaining on the Premises after the last day of the Term of this
Lease shall be conclusively deemed abandoned and may be removed by
Lessor, and Lessee shall reimburse Lessor for the cost of such
removal. Lessor may have any such property stored at Lessee's risk
and expense.
ENVIRONMENTAL
(b) COMPLIANCE WITH ENVIRONMENTAL LAWS. Lessee shall, at Lessee's
own expense, promptly comply with each and every federal, state,
county and municipal environmental law, ordinance, rule,
regulation, order, directive and requirement, now or hereafter
existing ("Environmental Laws"), applicable to the Premises,
Lessee, Lessee's operations at the Premises, or all of them,
except if there is any violation of Environmental Laws with
regard to the Premises existing at the date of this Lease, Lessor
shall comply therewith at its sole cost and expense, which cost
and expense shall not be included in Operating Costs.
(c) ISRA COMPLIANCE. Lessee shall, at Lessee's own expense, comply with
the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., the
regulations promulgated thereunder and any amending and successor
legislation and regulations ("ISRA"), if and to the extent the need
for such compliance is triggered by Lessee having become an
Industrial Establishment (as defined in ISRA) with respect to its
use of the Premises.
(d) INFORMATION TO LESSOR. At no expense to Lessor, Lessee shall
promptly provide all information and sign all documents requested by
Lessor with respect to compliance with Environmental Laws.
(e) LESSOR AUDIT. Lessee shall permit Lessor and its representatives
access to the Premises, from time to time, to conduct an
environmental assessment, investigation and sampling, all at
Lessor's own expense. If such assessment, investigation and sampling
reveal a violation of this provision, the cost shall be borne by
Lessee.
(f) LESSEE REMEDIATION. Should any assessment, investigation or
sampling reveal the existence of any spill, discharge or
placement of Contaminants in, on, under, or about, or migrating
from or onto the Premises, the Building or the Office Building
Area, as a result of the action or omission of Lessee or a
"Lessee Representative", then, in addition to being in default
under this Lease and Lessor having all rights available to Lessor
under this Lease and by law by reason of such default, Lessee
shall, at Lessee's own expense, in accordance with Environmental
Laws, undertake all action required by Lessor and any
governmental authority, including, without
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limitation, promptly obtaining and delivering to Lessor an
unconditional No Further Action Letter. For purposes of this
Article, the term "Lessee's Representative" shall mean any
shareholder, officer, director, member, partner, employee, agent,
licensee, assignee, sublessee or invitee of Lessee, or any third
party for whom Lessee is legally responsible. In no event shall any
of Lessee's remedial action involve engineering or institutional
controls, a groundwater classification exception area or well
restriction area, and Lessee's remedial action shall meet the most
stringent published or unpublished remediation standards for soil,
surface water, groundwater and drinking water. Promptly upon
completion of all required investigatory and remedial activities,
Lessee shall, at Lessee's own expense, to Lessor's satisfaction,
restore the affected areas of the Premises, the Building or the
Office Building Area, as the case may be, from any damage or
condition caused by the investigatory or remedial work.
(g) ENVIRONMENTAL QUESTIONNAIRE. Upon Lessor's request,
contemporaneously with the signing and delivery of this Lease, and
thereafter upon renewal of the lease, if at all, Lessee shall
complete, execute and deliver to Lessor an environmental
questionnaire in form and substance satisfactory to Lessor.
(h) ENVIRONMENTAL DOCUMENTS AND CONDITIONS. For purposes of this
Article, the term "Environmental Documents" shall mean all
environmental documentation concerning the Building or the Office
Building Area, of which the Premises is a part, or its environs,
in the possession or under the control of Lessee, including,
without limitation, plans, reports, correspondence and
submissions. During the term of this Lease and subsequently,
promptly upon receipt by Lessee or Lessee's Representatives,
Lessee shall deliver to Lessor all Environmental Documents
concerning or generated by or on behalf of Lessee, whether
currently or hereafter existing. In addition, Lessee shall
promptly notify Lessor of any environmental condition of which
Lessee has knowledge, which may exist in, on, under, or about, or
may be migrating from or onto the Building or the Office Building
Area.
(i) LESSOR'S RIGHT TO PERFORM LESSEE'S OBLIGATIONS. Notwithstanding
anything to the contrary set forth in this Lease, in the event,
pursuant to this Lease, Lessee is required to undertake any
sampling, assessment, investigation or remediation with respect
to the Premises, the Building or the Office Building Area, as the
case may be, then, at Lessor's discretion, Lessor shall have the
right, if Lessee has failed to do so with reasonable promptness
upon notice to Lessee, from time to time, to perform such
activities at Lessee's expense, and all sums incurred by Lessor
shall be paid by Lessee, as Additional Rent, upon demand.
(j) INDEMNITY. Lessee shall indemnify, defend and hold harmless
Lessor, Lessor's officers, directors, shareholders, employees and
personal or legal representatives from and against any and all
claims, liabilities, losses, damages, penalties and costs,
foreseen or unforeseen, including, without limitation, counsel,
engineering and other professional or expert fees, which an
indemnified party may incur resulting directly or indirectly,
wholly or partly from Lessee's actions or omissions with regard
to Lessee's obligations under this Article.
Lessor shall indemnify, defend and hold harmless Lessee, Lessee's
officers, directors, shareholders, employees and personal or legal
representatives from and against any and all claims, liabilities,
losses, damages, penalties and costs, foreseen or unforeseen,
including, without limitation, counsel, engineering and other
professional or expert fees, which an indemnified party may incur
resulting directly or indirectly, wholly or partly from Lessor's
actions or omissions with regard to Lessor's obligations under this
Article. Any cost or expense incurred by Lessor pursuant to this
indemnity shall be excluded from Operating Costs.
(k) SURVIVAL. This Article shall survive the expiration or earlier
termination of this lease. Lessee's failure to abide by the terms of
this Article shall be restrainable or enforceable, as the case may
be, by injunction.
(l) INTERPRETATION. The obligations imposed upon Lessee under
subparagraphs (a) through (j) above are in addition to and are
not intended to limit, but to expand upon, the obligations
imposed upon Lessee under this Article 5. As used in this
Article, the term "Contaminants" shall include, without
limitation, any regulated substance, toxic
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substance, hazardous substance, hazardous waste, pollution,
pollutant, contaminant, petroleum, asbestos or polychlorinated
biphenyls, as defined or referred to in any Environmental Laws.
Where a law or regulation defines any of these terms more broadly
then another, the broader definition shall apply.
6. ALTERATIONS, ADDITIONS OR IMPROVEMENTS:
Lessee shall not, without first obtaining the written consent of Lessor,
make any structural or Building Systems alterations, additions or
improvements in, to or about the Premises. Building Systems shall mean any
structural, life safety, plumbing, electrical, heating, ventilation or air
conditioning system or its components. Lessee shall not, without first
obtaining the written consent of Lessor (which shall not be unreasonably
withheld or delayed) make any non-Building Systems alterations, additions
or improvements in, to or about the Premises. Lessee may, upon
notification to Lessor, perform minor cosmetic improvements, such as
painting and wallpapering, without prior consent of Lessor.
7. ACTIVITIES INCREASING FIRE INSURANCE RATES:
Lessee shall not do or suffer anything to be done on the Premises which
will increase the rate of fire insurance on the Building.
8. ASSIGNMENT AND SUBLEASE:
Provided Lessee is not in default of any provisions of this Lease, Lessee
may assign or sublease the within Lease to any party subject to the
following:
a. In the event Lessee desires to assign this Lease or sublease all
or part of the Premises to any other party, the terms and
conditions of such assignment or sublease shall be communicated
to the Lessor in writing no less than thirty (30) days prior to
the effective date of any such sublease or assignment, and, prior
to such effective date, the Lessor shall have the option,
exercisable in writing to the Lessee, to: (i) recapture in the
case of subletting, that portion of the Premises to be sublet or
all of the Premises in the case of an assignment ("Recapture
Space") so that such prospective sublessee or assignee shall then
become the lessee of Lessor hereunder, or (ii) recapture the
Recapture Space for Lessor's own use. In the event that Lessor
exercise its option to Recapture Space, the within Lessee shall
be fully released from any and all obligations hereunder with
respect to the Recapture Space and the Fixed Basic Rent and
Lessee's Percentage shall be adjusted appropriately. Lessor shall
advise Lessee in writing of Lessor's election with respect to the
Recapture Space within twenty (20) days after Lessor's receipt of
Lessee's notice of its intent to sublet or assign.
Notwithstanding the foregoing, Lessor shall have no right to
exercise its rights pursuant to clauses (i) or (ii) above if the
space that Lessee proposes to sublet is less than eighty percent
(80%) of the Premises and the term of such subletting, including
renewal options, if any, is to expire at any time prior to the
commencement of the last year of the Term.
b. In the event that the Lessor elects not to recapture the Lease or
relet the Premises as hereinabove provided or in the event the
proposed sublease falls within the provisions of the last
sentence of sub section a. above, the Lessee may assign this
Lease or sublet the whole or any portion of the Premises, subject
to the Lessor's prior written consent, which consent shall not be
unreasonably withheld and shall be deemed to have been given if
Lessor does not advise Lessee otherwise in writing not less than
twenty (20) days after Lessor's receipt of Lessee's notice of its
intent to sublease or assign, on the basis of the following terms
and conditions:
i. The Lessee shall provide to the Lessor the name and address
of the assignee or sublessee.
ii. The assignee or sublessee shall assume, by written
instrument, all of the obligations of this Lease, and a
copy of such assumption agreement shall be furnished to the
Lessor within ten (10) days of its execution. Any sublease
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shall expressly acknowledge that said sublessee's rights
against Lessor shall be no greater than those of Lessee.
Lessee further agrees that notwithstanding any such
subletting, no other and further subletting of the Premises
by Lessee or any person claiming through or under Lessee
shall or will be made except upon compliance with and
subject to the provisions of this Article 8.
iii. Each sublease shall provide that it is subject and subordinate
to this Lease and to the matters to which this Lease is or
shall be subordinate, and that in the event of default by
Lessee under this Lease, Lessor may, at its option, take over
all of the right, title and interest of Lessee, as sublessor,
under such sublease, and such sublessee shall, at Lessor's
option, attorn to Lessor pursuant to the then executory
provisions of such sublease, except that Lessor shall not (i)
be liable for any previous act or omission of Lessee under
such sublease or, (ii) be subject to any offset not expressly
provided in such sublease which theretofore accrued to such
sublease to which Lessor has not specifically consented in
writing or by any previous prepayment of more than one month's
rent.
iv. The Lessee and each assignee shall be and remain liable for
the observance of all the covenants and provisions of this
Lease, including, but not limited to, the payment of Fixed
Basic Rent and Additional Rent reserved herein, through the
entire Term of this Lease, as the same may be renewed,
extended or otherwise modified.
v. The Lessee and any assignee shall promptly pay to Lessor
fifty percent (50%) of any consideration received for any
assignment and/or fifty percent (50%) of the rent, as and
when received, in excess of the Rent required to be paid by
Lessee for the area sublet computed on the basis of an
average square foot rent for the gross square footage
Lessee has leased after deducting therefrom Lessee's actual
and reasonable expenses in connection with such sublease or
assignment.
vi. In any event, the acceptance by the Lessor of any rent from
the assignee or from any of the subtenants or the failure of
the Lessor to insist upon a strict performance of any of the
terms, conditions and covenants herein shall not release the
Lessee herein, nor any assignee assuming this Lease, from any
and all of the obligations herein during and for the entire
Term of this Lease.
vii. In Lessor's reasonable judgment, the proposed assignee or
subtenant is engaged in a business or activity, and the
Premises, or the relevant part thereof, will be used in a
manner, which (a) is in keeping with the then standard of the
Building and (b) is limited to the use of the Premises as
general offices.
viii. The proposed assignee or subtenant is not then an occupant of
any part of the Building or any other building then owned by
Lessor or its affiliates within the Xxxx-Xxxx Business Campus
and Lessor has space available for leasing reasonably
equivalent to the Premises, in the case of an assignment, or
the space proposed to be sublet, in the case of a subletting.
For the purposes hereof, the "Xxxx-Xxxx Business Campus" shall
mean, Two Hilton Court, One Sylvan Way, Two Xxxxxx Way, 4
Campus Drive, 0 Xxxxxxxx Xxxxx, 0 Xxxxxx Xxx, 6 Campus Drive,
600 Parsippany Road, 7 Campus Drive, 0 Xxxxxx Xxx, xxx 0
Xxxxxx Xxxxx.
ix. The proposed assignee or subtenant is not an entity or a
person with whom Lessor is or has been, within the
preceding sixty (60) day period, engaged in active
negotiations to lease space in the Building or any other
building owned by Lessor or its affiliates within the
Xxxx-Xxxx Business Campus and Lessor has space available
for leasing reasonably equivalent to the Premises, in the
case of an assignment, or the space proposed to be sublet
in case of a subletting.
x. There shall not be more than three (3) subtenants in the
Premises.
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xi. Lessee shall not publicly advertise the subtenancy for less
than the then current market rent per rentable square foot for
the Premises as though the Premises were vacant; provided that
nothing contained herein shall prohibit subleases for less
than the then current market rent.
xii. Lessee shall not have (a) publicly advertised the availability
of the Premises without prior notice to and approval by Lessor
(which approval shall not be unreasonably withheld or
delayed), nor shall any advertisement state the name (as
distinguished from the address) of the Building or (b) listed
the Premises for subletting or assignment other than with a
broker, agent or representative who waives any entitlement to
a commission or other fee from Lessor in the event of a
recapturing of the Premises;
xiii. The proposed occupancy shall not, in Lessor's reasonable
opinion, exceed the parking allocation presently provided
for in this Lease;
xiv. The proposed assignee or subtenant shall only use the
Premises for general offices and shall not be engaged in
any of the following:
(a) educational, including but not limited to, instructional
facilities and correspondence schools;
(b) employment agencies;
(c) model agencies;
(d) photographic studios or laboratories;
(e) spas, health, physical fitness or exercise salons;
(f) small loan offices;
(g) real estate brokerage or real estate sales offices open
to the general public or construction offices;
(h) medical or dental facilities, including professional
offices, treatment facilities, dispensaries or
laboratories;
(i) federal, state or local government offices;
(j) so-called boiler room operations;
(k) retail stock brokerage offices; and
(l) religious organizations making facilities available to
congregations for uses other than business purposes; and
(m) executive office suite use.
xv. The proposed assignee or subtenant shall not be entitled,
directly or indirectly, to diplomatic or sovereign immunity
and shall be subject to the service of process in, and the
jurisdiction of, the state courts of New Jersey.
xvi. Lessor shall require a FIVE HUNDRED AND 00/100 DOLLAR
($500.00) payment to cover its handling charges for each
request for consent to any sublet or assignment prior to its
consideration of the same. Unless it is judicially determined
that Lessor has acted in bad faith, Lessee acknowledges that
its sole remedy with respect to any assertion that Lessor's
failure to consent to any sublet or assignment is unreasonable
shall be the remedy of specific performance and Lessee shall
have no other claim or cause of action against Lessor as a
result of Lessor's actions in refusing to consent thereto.
c. If Lessee is a corporation other than a corporation whose stock
is listed and traded on a nationally recognized stock exchange,
the provisions of Sub-section a. shall apply to a transfer
(however accomplished, whether in a single transaction or in a
series of related or unrelated transactions) of stock (or any
other mechanism such as, by way of example, the issuance of
additional stock, a stock voting agreement or change in class(es)
of stock) which results in a change of control of Lessee as if
such transfer of stock (or other mechanism) which results in a
change of control of Lessee were an assignment of this Lease, and
if Lessee is a partnership or joint venture, said provisions
shall apply with respect to a transfer (by one or more transfers)
of an interest in the distributions of profits and losses of such
partnership or joint venture (or other mechanism, such as, by way
of example, the creation of additional general partnership or
limited partnership interests) which results in a change of
control of such a partnership or joint venture, as if such
transfer of an interest in the distributions of profits and
losses of such partnership or joint venture which results in
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a change of control of such partnership or joint venture were an
assignment of this Lease; provided, however: (A) said provisions of
Sub-section a. of this Article 7 shall not apply to transactions
with a corporation into or with which Lessee is merged or
consolidated or to which all or substantially all of Lessee's assets
are transferred or to any corporation which controls or is
controlled by Lessee or is under common control with Lessee (any of
such transactions, a "Capital Transaction"), (B) Lessor's consent
shall not be required with respect to a Capital Transaction in which
(i) the successor to Lessee has the financial ability, in Lessor's
reasonable discretion, to meet Lessee's obligations under the Lease,
and (ii) proof satisfactory to Lessor of such financial ability to
meet Lessee's obligations shall have been delivered to Lessor at
least 10 days prior to the effective date of any such transaction.
d. In the event that any or all of Lessee's interest in the Premises
and/or this Lease is transferred by operation of law to any
trustee, receiver, or other representative or agent of Lessee, or
to Lessee as a debtor in possession, and subsequently any or all
of Lessee's interest in the Premises and/or this Lease is offered
or to be offered by Lessee or any trustee, receiver, or other
representative or agent of Lessee as to its estate or property
(such person, firm or entity being hereinafter referred to as the
"Grantor"), for assignment, conveyance, lease, or other
disposition to a person, firm or entity other than Lessor (each
such transaction being hereinafter referred to as a
"Disposition"), it is agreed that Lessor has and shall have a
right of first refusal to purchase, take, or otherwise acquire,
the same upon the same terms and conditions as the Grantor
thereof shall accept upon such Disposition to such other person,
firm, or entity; and as to each such Disposition the Grantor
shall give written notice to Lessor in reasonable detail of all
of the terms and conditions of such Disposition within twenty
(20) days next following its determination to accept the same but
prior to accepting the same, and Grantor shall not make the
Disposition until and unless Lessor has failed or refused to
accept such right of first refusal as to the Disposition, as set
forth herein.
Lessor shall have sixty (60) days next following its receipt of the
written notice as to such Disposition in which to exercise the
option to acquire Lessee's interest by such Disposition, and the
exercise of the option by Lessor shall be effected by notice to that
effect sent to the Grantor; but nothing herein shall require Lessor
to accept a particular Disposition or any Disposition, nor does the
rejection of any one such offer of first refusal constitute a waiver
or release of the obligation of the Grantor to submit other offers
hereunder to Lessor. In the event Lessor accept such offer of first
refusal, the transaction shall be consummated pursuant to the terms
and conditions of the Disposition described in the notice to Lessor.
In the event Lessor rejects such offer of first refusal, Grantor may
consummate the Disposition with such other person, firm, or entity;
but any decrease in price of more than two percent (2%) of the price
sought from Lessor or any change in the terms of payment for such
Disposition shall constitute a new transaction requiring a further
option of first refusal to be given to Lessor hereunder.
e. Without limiting any of the provisions of Articles 12 and 13, if
pursuant to the Federal Bankruptcy Code (herein referred to as
the "Code"), or any similar law hereafter enacted having the same
general purpose, Lessee is permitted to assign this Lease
notwithstanding the restrictions contained in this Lease,
adequate assurance of future performance by an assignee expressly
permitted under such Code shall be deemed to mean the deposit of
cash security in an amount equal to the sum of one year's Fixed
Basic Rent plus an amount equal to the Additional Rent for the
calendar year preceding the year in which such assignment is
intended to become effective, which deposit shall be held by
Lessor for the balance of the Term, without interest, as security
for the full performance of all of Lessee's obligations under
this Lease, to be held and applied in the manner specified for
security in Article 16.
f. Except as specifically set forth above, no portion of the Premises
or of Lessee's interest in this Lease may be acquired by any other
person or entity, whether by assignment, mortgage, sublease,
transfer, operation of law or act of the Lessee, nor shall Lessee
pledge its interest in this Lease or in any security deposit
required hereunder.
9
9. COMPLIANCE WITH RULES AND REGULATIONS:
Lessee shall observe and comply with the rules and regulations hereinafter
set forth in Exhibit B attached hereto and made a part hereof and with
such further reasonable rules and regulations as Lessor may prescribe, on
written notice to the Lessee, for the safety, care and cleanliness of the
Building and the comfort, quiet and convenience of other occupants of the
Building. Lessee shall not place a load upon any floor of the Premises
exceeding the floor load per square foot area which it was designed to
carry and which is allowed by law. Lessor reserves the right to prescribe
the weight and position of all safes, business machines and mechanical
equipment. Such installations shall be placed and maintained by Lessee, at
Lessee's expense, in settings sufficient, in Lessor's judgement, to absorb
and prevent vibration, noise and annoyance.
10. DAMAGES TO BUILDING:
If the Building is damaged by fire or any other cause to such extent the
cost of restoration, as reasonably estimated by Lessor, will equal or
exceed twenty-five percent (25%) of the replacement value of the Building
(exclusive of foundations) just prior to the occurrence of the damage,
then Lessor may, no later than the sixtieth (60th) day following the date
of damage, give Lessee a notice of election to terminate this Lease, or if
the cost of restoration will equal or exceed fifty percent (50%) of such
replacement value and if the Premises shall not be reasonably usable for
the purpose for which they are leased hereunder, or if restoration of the
damage will require more than one hundred eighty (180) days to complete or
if such damage is not fully repaired and reasonable access to the Premises
restored within one hundred eighty (180) days from the date of damage,
then, in any such event, Lessee may, no later than the sixtieth (60th) day
following the date of damage or following the end of said one hundred
eighty (180) day period, give Lessor a notice of election to terminate
this Lease. In either said event of election, this Lease shall be deemed
to terminate on the thirtieth (30th) day after the giving of said notice,
and Lessee shall surrender possession of the Premises within a reasonable
time thereafter, and the Fixed Basic Rent, and any Additional Rent, shall
be apportioned as of the date of said casualty and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date shall be repaid to
Lessee. If the cost of restoration or condition of the Premises shall not
entitle Lessor or Lessee to terminate this Lease, or if, despite the cost
or such condition, neither Lessor nor Lessee elects to terminate this
Lease within the periods provided above, Lessor shall restore the Building
and the Premises with reasonable promptness, subject to Force Majeure, and
Lessee shall have no right to terminate this Lease, except as set forth
above. Lessor need not restore fixtures and improvements owned by Lessee.
In any case in which use of the Premises is affected by any damage to the
Building, there shall be either an abatement or an equitable reduction in
Fixed Basic Rent, depending on the period for which and the extent to
which the Premises are not reasonably usable for the purpose for which
they are leased hereunder. The words "restoration" and "restore" as used
in this Article 10 shall include repairs. If the damage results from the
fault of the Lessee, Lessee's agents, servants, visitors or licensees,
Lessee shall not be entitled to any abatement or reduction in Fixed Basic
Rent, except to the extent of any rent insurance received by Lessor.
11. EMINENT DOMAIN:
If Lessee's use of the Premises is materially affected due to the taking
by eminent domain of (a) the Premises or any part thereof or any estate
therein; or (b) any other part of the Building; then, in either event,
this Lease shall terminate on the date when title vests pursuant to such
taking. The Fixed Basic Rent, and any Additional Rent, shall be
apportioned as of said termination date and any Fixed Basic Rent or
Additional Rent paid for any period beyond said date, shall be repaid to
Lessee. Lessee shall not be entitled to any part of the award for such
taking or any payment in lieu thereof, but Lessee may file a separate
claim for any taking of fixtures and improvements owned by Lessee which
have not become the Lessor's property, and for moving expenses, provided
the same shall, in no way, affect or diminish Lessor's award. In the event
of a partial taking which does not effect a termination of this Lease but
does deprive Lessee of the use of a portion of the Premises, there shall
either be an abatement or an equitable reduction of the Fixed Basic Rent,
and an equitable
10
adjustment reducing the Base Period Costs as hereinafter defined depending
on the period for which and the extent to which the Premises so taken are
not reasonably usable for the purpose for which they are leased hereunder.
12. INSOLVENCY OF LESSEE:
Either (a) the appointment of a receiver to take possession of all or
substantially all of the assets of Lessee, or, (b) a general assignment by
Lessee for the benefit of creditors, or, (c) any action taken or suffered
by Lessee under any insolvency or bankruptcy act, shall constitute a
default of this Lease by Lessee, and Lessor may terminate this Lease
forthwith and upon notice of such termination Lessee's right to possession
of the Premises shall cease, and Lessee shall then quit and surrender the
Premises to Lessor but Lessee shall remain liable as hereinafter provided
in Article 14 hereof.
13. LESSOR'S REMEDIES ON DEFAULT:
If Lessee defaults in the payment of Fixed Basic Rent, or any Additional
Rent, or defaults in the performance of any of the other covenants and
conditions hereof or permits the Premises to become deserted, abandoned or
vacated, Lessor may give Lessee notice of such default, and if Lessee does
not cure any Fixed Basic Rent or Additional Rent default within ten (10)
days or other default within thirty (30) days after giving of such notice
(or if such other default is of such nature that it cannot be completely
cured within such period, if Lessee does not commence such curing within
such thirty (30) day period and thereafter proceed with reasonable
diligence and in good faith to cure such default), then Lessor may
terminate this Lease on not less than ten (10) days notice to Lessee, and
on the date specified in said notice, Lessee's right to possession of the
Premises shall cease but Lessee shall remain liable as hereinafter
provided. If this Lease shall have been so terminated by Lessor pursuant
to Articles 12 or 13 hereof, Lessor may at any time thereafter resume
possession of the Premises by any lawful means and remove Lessee or other
occupants and their effects. The unsuccessful party shall pay tothe
prevailing party, on demand, such expenses asthe prevailing party may
incur, including, without limitation, court costs and reasonable
attorney's fees and disbursements, in any proceeding relating to this
Lease. Notwithstanding the foregoing, Lessee's vacating of the Premises
shall not be deemed a default under this Lease, provided that at the time
of such vacating of the Premises, Lessee shall deliver to Lessor a
certification of the Chief Executive Officer or Chief Financial Officer of
Lessee certifying that Lessee has the ability to meet its financial
obligations under this Lease.
14. DEFICIENCY:
In any case where Lessor has recovered possession of the Premises by
reason of Lessee's default, Lessor may, at Lessor's option, occupy the
Premises or cause the Premises to be redecorated, altered, divided,
consolidated with other adjoining premises or otherwise changed or
prepared for reletting, and may relet the Premises or any part thereof, as
agent of Lessee or otherwise, for a term or terms to expire prior to, at
the same time as or subsequent to, the original Expiration Date of this
Lease, at Lessor's option and receive the rent therefor. Rent so received
shall be applied first to the payment of such reasonable expenses as
Lessor may have incurred in connection with the recovery of possession,
redecorating, altering, dividing, consolidating with other adjoining
premises, or otherwise changing or preparing for reletting, and the
reletting, including brokerage and reasonable attorney's fees, and then to
the payment of damages in amounts equal to the Fixed Basic Rent and
Additional Rent hereunder and to the costs and expenses of performance of
the other covenants of Lessee as herein provided. Lessee agrees, in any
such case, whether or not Lessor has relet, to pay to Lessor damages equal
to the Fixed Basic Rent and Additional Rent from the date of such default
to the date of expiration of the term demised and other sums herein agreed
to be paid by Lessee, less the net proceeds of the reletting, if any,
received by Lessor during the remainder of the unexpired term hereof, as
ascertained from time to time, and the same shall be payable by Lessee on
the several rent days above specified. Lessee shall not be entitled to any
surplus accruing as a result of any such reletting. In reletting the
Premises as aforesaid, Lessor may grant commercially reasonable rent
concessions, and Lessee shall not be credited therewith. No such reletting
shall constitute a surrender and acceptance or be deemed evidence thereof.
If Lessor elects, pursuant hereto, actually to occupy and use the Premises
or
11
any part thereof during any part of the balance of the Term as originally
fixed or since extended, there shall be allowed against Lessee's
obligation for rent or damages as herein defined, during the period of
Lessor's occupancy, the reasonable value of such occupancy, not to exceed,
in any event, the Fixed Basic Rent and Additional Rent herein reserved and
such occupancy shall not be construed as a release of Lessee's liability
hereunder.
Alternatively, in any case where Lessor has recovered possession of the
Premises by reason of Lessee's default, Lessor may at Lessor's option, and
at any time thereafter, and without notice or other action by Lessor, and
without prejudice to any other rights or remedies it might have hereunder
or at law or equity, become entitled to recover from Lessee, as Damages
for such breach, in addition to such other sums herein agreed to be paid
by Lessee, to the date of re-entry, expiration and/or dispossess, an
amount equal to the difference between the Fixed Basic Rent and Additional
Rent reserved in this Lease from the date of such default to the date of
Expiration of the original Term demised and the then fair and reasonable
rental value of the Premises for the same period. Said Damages shall
become due and payable to Lessor immediately upon such breach of this
Lease and without regard to whether this Lease be terminated or not, and
if this Lease be terminated, without regard to the manner in which it is
terminated. In the computation of such Damages, the difference between an
installment of Fixed Basic Rent and Additional Rent thereafter becoming
due and the fair and reasonable rental value of the Premises for the
period for which such installment was payable shall be discounted to the
date of such default at the rate of not more than six percent (6%) per
annum.
Lessee hereby waives all right of redemption to which Lessee or any person
under Lessee might be entitled by any law now or hereafter in force.
Lessor's remedies hereunder are in addition to any remedy allowed by law.
15. SUBORDINATION OF LEASE:
This Lease shall, at Lessor's option, or at the option of any holder of
any underlying lease or holder of any mortgages or trust deed, be subject
and subordinate to any such underlying leases and to any such mortgages or
trust deed which may now or hereafter affect the real property of which
the Premises form a part, and also to all renewals, modifications,
consolidations and replacements of said underlying leases and said
mortgages or trust deed provided, that Lessor shall use commercially
reasonable efforts to obtain a non-disturbance agreement from the holder
of any such underlying lease, mortgage or trust deed. Any reasonable
expenses charged by the mortgagee in connection with the obtaining of the
aforesaid agreement shall be paid by Lessee. Although no instrument or act
on the part of Lessee shall be necessary to effectuate such subordination,
Lessee will, nevertheless, execute and deliver such further instruments
confirming such subordination of this Lease as may be desired by the
holders of said mortgages or trust deed or by any of the lessor's under
such underlying leases. Lessee hereby appoints Lessor attorney-in-fact,
irrevocably, to execute and deliver any such instrument for Lessee. If any
underlying lease to which this Lease is subject terminates, Lessee shall,
on timely request, attorn to the owner of the reversion.
Lessor represents that there currently is no mortgage encumbering the
Premises.
16. SECURITY DEPOSIT:
Lessee shall deposit with Lessor on the signing of this Lease, the
Security Deposit as defined in the Preamble for the full and faithful
performance of Lessee's obligations under this Lease, including without
limitation, the surrender of possession of the Premises to Lessor as
herein provided. If Lessor applies any part of said Security Deposit to
cure any default of Lessee, Lessee shall, on demand, deposit with Lessor
the amount so applied so that Lessor shall have the full Security Deposit
on hand at all times during the Term of this Lease. In the event of a bona
fide sale of the Building, subject to this Lease, Lessor shall have the
right to transfer the Security Deposit to the vendee, and Lessor shall be
considered released by Lessee from all liability for the return of the
Security Deposit; and Lessee agrees to look solely to the new lessor for
the return of the Security Deposit, and it is agreed that this shall apply
to every transfer or assignment made of the Security Deposit to the new
lessor. Provided this Lease is not in default, the Security Deposit (less
any portions thereof used, applied or retained by Lessor in accordance
with the provisions of this Article 16), shall be returned to Lessee after
12
the expiration or sooner termination of this Lease and after delivery of
the entire Premises to Lessor in accordance with the provisions of this
Lease. Lessee covenants that it will not assign or encumber or attempt to
assign or encumber the Security Deposit and Lessor shall not be bound by
any such assignment, encumbrance or attempt thereof.
In the event of the insolvency of Lessee, or in the event a petition is
filed by or against Lessee under any chapter of the bankruptcy laws of the
State of New Jersey or the United States of America, then in such event,
Lessor may require the Lessee to deposit additional security in an amount
which in Lessor's sole judgement would be sufficient to adequately assure
Lessee's performance of all of its obligations under this Lease including
all payments subsequently accruing. Failure of Lessee to deposit the
security required by this Article 16 within ten (10) days after Lessor's
written demand shall constitute a material breach of this Lease by Lessee.
Lessee may deliver to Lessor after the date hereof, in lieu of the cash
deposit set forth in this Article, an irrevocable negotiable letter of
credit in amount set forth in Paragraph 16 of the Preamble and
substantially in the form annexed hereto as Exhibit H. Said letter of
credit shall be for a term of not less than one (1) year and shall be
renewed by Lessee (without notice from Lessor) no later than forty-five
(45) days prior to its expiration, and the expiration of each replacement
thereof, until Lessor shall be required to return the security to Lessee
pursuant to the terms of this Lease but in no event earlier than ninety
(90) days after the Expiration Date, and each such renewal letter of
credit shall be delivered to Lessor no later than forty-five (45) days
prior to the expiration of the letter of credit then held by Lessor. If
any portion of the security deposit shall be utilized by Lessor in the
manner permitted by this Lease, Lessee shall, within five (5) days after
request by Lessor, replenish the security account by depositing with
Lessor, in cash or by letter of credit, an amount equal to that utilized
by Lessor. Failure of Lessee to comply strictly with the provisions of
this Article shall constitute a material breach of this Lease and Lessor
shall be entitled to present the letter of credit held by for payment
(without notice to Lessee). If the cash security is converted into a
letter of credit, the provisions with respect to letters of credit shall
apply (with the necessary changes in Points of detail) to such letter of
credit deposit. In the event of a bank failure or insolvency affecting the
letter of credit, Lessee shall replace same within twenty (20) days after
being requested to do so by Lessor.
17. RIGHT TO CURE LESSEE'S BREACH:
If Lessee breaches any covenant or condition of this Lease, Lessor may, on
reasonable notice to Lessee (except that no notice need be given in case
of emergency), cure such breach at the expense of Lessee and the
reasonable amount of all expenses, including attorney's fees, incurred by
Lessor in so doing (whether paid by Lessor or not) shall be deemed
Additional Rent payable on demand.
18. MECHANIC'S LIENS:
Lessee shall, within fifteen (15) days after notice from Lessor, discharge
or satisfy by bonding or otherwise any mechanic liens for materials or
labor claimed to have been furnished to the Premises on Lessee's behalf.
19. RIGHT TO INSPECT AND REPAIR:
Lessor may enter the Premises but shall not be obligated to do so (except
as required by any specific provision of this Lease) at any reasonable
time on reasonable notice to Lessee (except that no notice need be given
in case of emergency), in such a manner and at such times as to minimize
interference with Lessee's business, for the purpose of inspection or the
making of such repairs, replacement or additions in, to, on and about the
Premises or the Building, as Lessor deems necessary or desirable. Lessee
shall have no claims or cause of action against Lessor by reason thereof.
In no event shall Lessee have any claim against Lessor for interruption of
Lessee's business, however occurring, including but not limited to that
arising from the negligence of Lessor, its agents, servants or invitees,
or from defects, errors or omissions in the construction or design of the
Premises and/or the Building, including the structural and non-structural
portions thereof.
13
20. SERVICES TO BE PROVIDED BY LESSOR/LESSOR'S EXCULPATION:
Subject to intervening laws, ordinances, regulations and executive orders,
Lessor agrees to furnish, except on holidays, as set forth on Exhibit E
attached hereto and made a part hereof:
a. The cleaning services, as set forth on Exhibit D attached hereto and
made a part hereof, and subject to the conditions therein stated.
Except as set forth on Exhibit D, Lessee shall pay the cost of all
other cleaning services required by Lessee.
b. Heating, ventilating and air conditioning (herein "HVAC") as
appropriate for the season, and as set forth on Exhibit C-1,
attached hereto and made a part hereof, together with Common
Facilities lighting and electric energy all during Building Hours,
as defined in the Preamble.
c. Cold and hot water for drinking and lavatory purposes.
d. Elevator service during Building Hours (if the Building contains
an elevator or elevators for the use of the occupants thereof).
e. Restroom supplies and exterior window cleaning when reasonably
required.
f. Notwithstanding the requirements of Exhibit C-1 (as to HVAC) or D
or any other provision of this Lease, Lessor shall not be liable
for failure to furnish any of the aforesaid services when such
failure is due to Force Majeure, as hereinafter defined. Lessor
shall not be liable, under any circumstances, including, but not
limited to, that arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or
omissions in the construction or design of the Premises and/or
the Building, including the structural and non-structural
portions thereof, for loss of or injury to Lessee or to property,
however occurring, through or in connection with or incidental to
the furnishings of, or failure to furnish, any of the aforesaid
services or for any interruption to Lessee's business, however
occurring.
21. INTERRUPTION OF SERVICES OR USE:
Interruption or curtailment of any service maintained in the Building or
at the Office Building Area, if caused by Force Majeure, as hereinafter
defined, shall not entitle Lessee to any claim against Lessor or to any
abatement in rent, and shall not constitute a constructive or partial
eviction, unless Lessor fails to take measures as may be reasonable under
the circumstances to restore the service without undue delay. If the
Premises are rendered untenantable in whole or in part, for a period of
five (5) consecutive business days, by the making of repairs, replacements
or additions, other than those made with Lessee's consent or caused by
misuse or neglect by Lessee, or Lessee's agents, servants, visitors or
licensees, there shall be a proportionate abatement of Rent from and after
said fifth (5th) consecutive business day and continuing for the period of
such untenantability. In no event, shall Lessee be entitled to claim a
constructive eviction from the Premises unless Lessee shall first have
notified Lessor in writing of the condition or conditions giving rise
thereto, and if the complaints be justified, unless Lessor shall have
failed, within a reasonable time after receipt of such notice, to remedy,
or commence and proceed with due diligence to remedy such condition or
conditions, all subject to Force Majeure as hereinafter defined.
22. BUILDING STANDARD OFFICE ELECTRICAL SERVICE:
The cost of electric current which is supplied by the Lessor for use by
the Lessee in the Premises, other than for heating or air conditioning
purposes, shall be reimbursed to the Lessor at terms, classification and
rates normally charged by the public utilities corporation serving that
part of the municipality where the subject Premises are located.
a. From and after the Commencement Date, Lessee agrees to pay as
Additional Rent an estimated electrical charge of $.10 per square
foot per month, payable on the first day
14
of each and every month, until such time as an electrical survey can
be performed pursuant to Article 22(b) below.
b. Lessee agrees that an independent electrical engineering
consultant shall make a survey of electric power demand of the
electric lighting fixtures and the electric equipment of Lessee
used in the Premises to determine the average monthly electric
consumption thereof, and the costs of said survey shall be borne
by Lessee but not in excess of $350.00. The findings of said
consultant as to the average monthly electric consumption of
Lessee shall, unless objected to by Lessee within forty-five (45)
days, be conclusive and binding on Lessor and Lessee. After
Lessor's consultant has submitted its report, Lessee shall pay to
Lessor, within ten (10) days after demand therefor by Lessor, the
amount (based on the monthly consumption found by such
consultant) as owing from the Lease Term's Commencement Date, and
the then expired months, to include the then current month and
thereafter adjusted for the estimated electrical charges already
paid pursuant to Article 22(a), on the first day of every month,
in advance, the amount set forth as the monthly consumption in
said report. Said amounts shall be treated as Additional Rent due
hereunder. Proportionate sums shall be payable for periods of
less than a full month if the Term commences or ends on any other
than the first or last day of the month. If Lessee objects to
said findings, Lessee shall nevertheless pay and continue to pay
the amount determined by Lessor's consultant until the issue is
finally resolved, but Lessee may, at its expense, seek the
services of an independent electrical consultant who shall make a
survey as provided above. If Lessor's and Lessee's consultant
cannot agree as to Lessee's consumption within thirty (30) days
of Lessee's consultant's findings either Lessor or Lessee may
request the American Arbitration Association in Somerset, New
Jersey to appoint an electrical engineering consultant whose
decision shall be final and binding on Lessor and Lessee, and
whose cost shall be shared equally. Upon the issue being finally
resolved, any overpayment made by Lessee shall be promptly
refunded.
c. In the event that there shall be an increase or decrease in the
rate schedule (including surcharges or demand adjustments), of
the public utility for the supply of Building Standard Office
Electrical Service, or the imposition of any tax with respect to
such service or increase in any such tax following the Lease
Term's commencement, the Additional Rent payable hereunder shall
be adjusted equitably to reflect the increase or decrease in rate
or imposition or increase in the aforesaid tax. All computations
shall be made on the basis of Lessee's surveyed usage as if a
meter exclusively measuring such usage to the Premises was in
place.
d. Lessee covenants that it shall notify Lessor immediately upon the
introduction of any office equipment or lighting different from
that on the Premises as of Lessor's electrical survey or in
addition to the aforesaid equipment or lighting on the Premises
as of said survey. The introduction of any new or different
equipment or lighting shall be cause for, at Lessor's election, a
resurveying of the Premises at Lessee's expense. Lessor reserves
the right to inspect the Premises to insure compliance with this
provision.
x. Xxxxxx shall not be liable in any way to Lessee for any loss,
damage or expense which Lessee may sustain or incur as a result
of any failure, defect or change in the quantity or character of
electrical energy available for redistribution to the Premises
pursuant to this Article 22 nor for any interruption in the
supply, and Lessee agrees that such supply may be interrupted for
inspection, repairs and replacement and in emergencies. In any
event, the full measure of Lessor's liability for any
interruption in the supply due to Lessor's acts or omissions
shall be an abatement of Fixed Basic Rent and Additional Rent,
unless Lessor fails to take such measures as may be reasonable
under the circumstances to restore such service without undue
delay. In no event shall Lessor be liable for any business
interruption suffered by Lessee.
x. Xxxxxx, at Lessee's expense, shall furnish and install all
replacement lighting tubes, lamps, ballasts and bulbs required in
the Premises. Lessee, however, shall have the right to furnish
and/or install any or all of the items mentioned in this Article
22(f).
g. Lessee's use of electrical service as contemplated herein shall be
during Building Hours, and any use in excess of said Building Hours
shall result in an adjustment as set forth in Article 22(a) hereof
to reflect such additional consumption.
15
23. ADDITIONAL RENT:
It is expressly agreed that Lessee will pay in addition to the Fixed Basic
Rent provided in Article 3 hereof, an Additional Rent to cover Lessee's
Percentage as defined in the Preamble, of the increased cost to Lessor,
for each of the categories enumerated herein, over the "Base Period
Costs", as defined in the Preamble for said categories.
a. OPERATING COST ESCALATION -- If the Operating Costs incurred for
the Building in which the Premises are located and Office
Building Area for any Lease Year or Partial Lease Year during the
Lease Term shall be greater than the Base Operating Costs
(adjusted proportionately for periods less than a Lease Year),
then Lessee shall pay to Lessor, as Additional Rent, Lessee's
Percentage of all such excess Operating Costs. Operating Costs
shall include, by way of illustration and not of limitation:
personal property taxes; management fees; labor, including all
wages and salaries; social security taxes, and other taxes which
may be levied against Lessor upon such wages and salaries;
supplies; repairs and maintenance; maintenance and service
contracts; painting; wall and window washing; laundry and towel
service; tools and equipment (which are not required to be
capitalized for federal income tax purposes); fire and other
insurance; trash removal; lawn care; snow removal and all other
items properly constituting direct operating costs according to
standard accounting practices (hereinafter collectively referred
to as the "Operating Costs"), but not including any of the
exclusions from Operating Costs set forth on Exhibit I attached
hereto.
b. FUEL, UTILITIES AND ELECTRIC COST ESCALATION (hereinafter
referred to as "Utility and Energy Costs") - If the Utility and
Energy Costs, including any fuel surcharges or adjustments with
respect thereto, incurred for water, sewer, gas, electric, other
utilities and heating, ventilating and air conditioning for the
Building, to include all leased and leasable areas (not
separately billed or metered within the Building), and Common
Facilities electric, lighting, water, sewer and other utilities
for the Building and Office Building Area, for any Lease Year or
Partial Lease Year, during the Term, shall be greater than the
Base Utility and Energy Costs (adjusted proportionately for
periods less than a Lease Year), then Lessee shall pay to Lessor
as Additional Rent, Lessee's Percentage of all such excess
Utility and Energy Costs. As used in this Article 23, the Base
Utility and Energy Costs shall be as defined in the Preamble.
c. TAX ESCALATION -- If the Real Estate Taxes for the Building and
Office Building Area at which the Premises are located for any
Lease Year or Partial Lease Year, during the Lease Term, shall be
greater than the Base Real Estate Taxes (adjusted proportionately
for periods less than a Lease Year), then provided that such
increase in Real Estate Taxes is not the result of expansion or
addition to the Building and the Office Building Area at which
the Premises are located, Lessee shall pay to Lessor as
Additional Rent, Lessee's Percentage as hereinafter defined, of
all such excess Real Estate Taxes. Lessor represents to Lessee
that the Building and Office Building Area at which the Premises
are located are assessed for Real Estate Tax purposes as of the
date of this Lease as fully completed.
As used in this Article 23(c), the words and terms which follow mean
and include the following:
i. "Base Real Estate Taxes" shall be as defined in the
Preamble.
ii. "Real Estate Taxes" shall mean the property taxes and
assessments imposed upon the Building and Office Building
Area, or upon the rent, as such, payable to the Lessor,
including, but not limited to, real estate, city, county,
village, school and transit taxes, or taxes, assessments,
or charges levied, imposed or assessed against the Building
and Office Building Area by any other taxing authority,
whether general or specific, ordinary or extraordinary,
foreseen or unforeseen. If due to a future change in the
method of taxation, any franchise, income or profit tax
shall be levied against Lessor in substitution for, or in
lieu of, or in addition to, any tax which would otherwise
constitute a Real Estate Tax, such franchise, income or
profit tax shall be
16
deemed to be a Real Estate Tax for the purposes hereof;
conversely, any additional real estate tax hereafter imposed
in substitution for, or in lieu of, any franchise, income or
profit tax (which is not in substitution for, or in lieu of,
or in addition to, a Real Estate Tax as hereinbefore provided)
shall not be deemed a Real Estate Tax for the purposes hereof.
d. LEASE YEAR -- As used in this Article 23, Lease Year shall mean a
calendar year. Any portion of the Term which is less than a Lease
Year as hereinbefore defined, that is, from the Commencement Date
through the following December 31, and from the last January 1,
falling within the Term to the end of the Term, shall be deemed a
"Partial Lease Year". Any reference in this Lease to a Lease Year
shall, unless the context clearly indicates otherwise, be deemed
to be a reference to a Partial Lease Year if the period in
question involves a Partial Lease Year.
e. PAYMENT -- At any time, and from time to time, after the
establishment of the Base Period Costs for each of the categories
referred to above, Lessor shall advise Lessee in writing of
Lessee's Percentage share with respect to each of the categories
as reasonably estimated for the next twelve (12) month period (or
proportionate part thereof if the last period prior to the
Lease's expiration is less than twelve (12) months) as then known
to the Lessor, and thereafter, the Lessee shall pay as Additional
Rent, Lessee's Percentage share of these costs for the then
current period affected by such advice (as the same may be
periodically revised by Lessor as additional costs are incurred)
in equal monthly installments, such new rates being applied to
any months, for which the Fixed Basic Rent shall have already
been paid which are affected by the Operating Cost Escalation
and/or Utility and Energy Cost Escalation and/or Tax Escalation
Costs above referred to, as well as the unexpired months of the
current period, the adjustment for the then expired months to be
made at the payment of the next succeeding monthly rental, all
subject to final adjustment at the expiration of each Lease Year
as defined in Article 23(e) hereof (or Partial Lease Year if the
last period prior to the Lease's termination is less than twelve
(12) months).
In the event the last period prior to the Lease's termination is
less than twelve (12) months, the Base Period Costs during said
period shall be proportionately reduced to correspond to the
duration of said final period.
f. BOOKS AND REPORTS -- For the protection of Lessee, Lessor shall
maintain books of account which, together with the back-up
materials thereto, shall be open to Lessee and its
representatives at all reasonable times so that Lessee can
determine that such Operating, Utility and Energy and Real Estate
Tax Costs have, in fact, been paid or incurred. Lessee's
representatives shall not (i) perform such inspection and/or
audit on a contingency basis, or (ii) perform such an inspection
and/or audit for any other tenant in the Building. At Lessor's
request, Lessee shall execute a confidentiality agreement
reasonably acceptable to Lessor prior to any examination of
Lessor's books and records. In the event Lessee disputes any one
or more of said charges, Lessee shall attempt to resolve such
dispute with Lessor, provided that if such dispute shall not be
satisfactorily settled between Lessor and Lessee, the dispute
shall be referred by either party to an independent certified
public accountant to be mutually agreed upon, and if such an
accountant cannot be agreed upon, The American Arbitration
Association may be asked by either party to select an arbitrator,
whose decision on the dispute will be final and binding upon both
parties, who shall jointly share any cost of such arbitration. If
the arbitrator determines that Lessor has overstated the disputed
sum by more than five percent (5%), then Lessor shall pay the
entire cost of the arbitration. Pending resolution of said
dispute the Lessee shall pay to Lessor the sum so billed by
Lessor subject to its ultimate resolution as aforesaid. The
parties agree to make any adjustment to such Operating, Utility
and Energy and Real Estate Tax Costs payments determined to be
necessary as a result of such review by Lessee and/or arbitration.
g. RIGHT OF REVIEW -- Once Lessor shall have finally determined said
Operating, Utility and Energy or Real Estate Tax Costs at the
expiration of a Lease Year, then as to the item so established,
Lessee shall only be entitled to dispute said charge as finally
established for a period of six (6) months after such charge is
finally established, and
17
Lessee specifically waives any right to dispute any such charge at
the expiration of said six (6) month period.
h. OCCUPANCY ADJUSTMENT -- If, with respect to Operating Cost
Escalation, as established in Article 23(a) hereof, and Utility
and Energy Cost Escalation, as established in Article 23(b)
hereof, the Building is less than ninety-five percent (95%)
occupied during the establishment of the respective Base Periods,
then the Base Costs incurred with respect to said Operating Cost
or Utility and Energy Cost shall be adjusted during any such
period within the Base Period so as to reflect ninety-five
percent (95%) occupancy. Similarly, if during any Lease Year or
Partial Lease Year, subsequent to the Base Period the Building is
less than ninety-five percent (95%) occupied, then the actual
costs incurred for Operating Cost and Utility and Energy Cost
shall be increased during any such period to reflect ninety-five
percent (95%) occupancy so that at all times after the Base
Period the Operating Cost or Utility and Energy Cost shall be
actual costs, but in the event less than ninety-five percent
(95%) of the Building is occupied during all or part of the Lease
Year involved, the Operating Cost or Utility and Energy Cost
shall not be less than that which would have been incurred had
ninety-five percent (95%) of the Building been occupied. The
aforesaid adjustment shall only be made with respect to those
items that are in fact affected by variations in occupancy levels.
24. LESSEE'S ESTOPPEL:
Lessee shall, from time to time, on not less than ten (10) days prior
written request by Lessor, execute, acknowledge and deliver to Lessor a
written statement, substantially in the form of Exhibit F attached hereto,
certifying that the Lease is unmodified and in full force and effect, or
that the Lease is in full force and effect as modified and listing the
instruments of modification; the dates to which the rents and charges have
been paid; and, to the best of Lessee's knowledge, whether or not Lessor
is in default hereunder, and if so, specifying the nature of the default.
It is intended that any such statement delivered by Lessee pursuant to
this Article 24 may be relied on by a prospective purchaser of Lessor's
interest or mortgagee of Lessor's interest or assignee of any mortgage of
Lessor's interest.
Lessor shall, from time to time, on not less than ten (10) days prior
written request by Lessee, execute, acknowledge and deliver to Lessee a
written statement reasonably acceptable to Lessee, certifying that the
Lease is unmodified and in full force and effect, or that the Lease is in
full force and effect as modified and listing the instruments of
modifications; the dates to which the rents and charges have been paid;
and whether or not Lessee is in default hereunder, and if so, specifying
the nature of the default. It is intended that any such statement
delivered by Lessor pursuant to this Article 24 may be relied on by the
person to whom Lessee requests that such statement be addressed.
25. HOLDOVER TENANCY:
If Lessee holds possession of the Premises after the Expiration Date of
this Lease, Lessee shall (i) become a tenant from month to month under the
provisions herein provided, but at one hundred fifty percent (150%) of the
monthly Fixed Basic Rent for the last month of the Term, plus the
Additional Rent, for the first two (2) months of Lessee's holding over and
two hundred percent (200%) of the monthly Fixed Basic Rent for the last
month of the Term, plus the Additional Rent, thereafter, which shall
continue as provided in the Lease which sum shall be payable in advance on
the first day of each month, and without the requirement for demand or
notice by Lessor to Lessee demanding delivery of possession of said
Premises, and such tenancy shall continue until terminated by Lessor, or
until Lessee shall have given to Lessor, at least thirty (30) days prior
to the intended date of termination, a written notice of intent to
terminate such tenancy, which termination date must be as of the end of a
calendar month; and (ii) indemnify Lessor against loss or liability
resulting from the delay by Lessee in so surrendering the Premises
including, without limitation, any claims made by any succeeding occupant
founded on such delay. Lessee's obligations under this Section shall
survive the expiration or sooner termination of the Lease. The time
limitations described in this Article 25 shall not be subject to extension
for Force Majeure.
18
26. RIGHT TO SHOW PREMISES:
Lessor may show the Premises to prospective purchasers and mortgagees; and
during the twelve (12) months prior to termination of this Lease, to
prospective tenants, during Building Hours on reasonable notice to Lessee.
27. LESSOR'S WORK - LESSEE'S DRAWINGS:
Lessee shall accept the Premises "as is". Such term shall mean in the same
condition and repair in which the prior tenant vacated such space, and
Lessee shall be responsible for any demolition and removal of any
improvements existing in the Premises in connection with the prior
tenant's occupancy, and all other work as may be necessary to convert the
Premises to Lessee's requirements. Lessor shall not be responsible for
performing any work with respect to such space. Any work, changes or
improvements made to such space shall be performed at Lessee's expense in
accordance with the terms of Exhibit C of this Lease.
28. WAIVER OF TRIAL BY JURY:
To the extent such waiver is permitted by law, the parties waive trial by
jury in any action or proceeding brought in connection with this Lease or
the Premises.
29. LATE CHARGE:
Anything in this Lease to the contrary notwithstanding, at Lessor's
option, Lessee shall pay a "Late Charge" of five percent (5%) of any
installment of Fixed Basic Rent or Additional Rent paid more than five (5)
business days after the due date thereof, to cover the extra expense
involved in handling delinquent payments, said Late Charge to be
considered Additional Rent. The amount of the Late Charge to be paid by
Lessee shall be reassessed and added to Lessee's obligations for each
successive monthly period until paid.
Notwithstanding anything in this Section to the contrary, Lessor shall
waive a Late Charge one time during each Lease Year provided, however, the
installment of Fixed Basic Rent or Additional Rent so due is paid by the
fifteenth (15th) day of the month.
30. LESSEE'S INSURANCE:
a. Lessee covenants to provide at Lessee's cost and expense on or
before the earlier of (i) the Commencement Date, or (ii) Lessee's
taking actual possession for the purpose of completing any
improvement work, and to keep in full force and effect during the
entire Term and so long thereafter as Lessee, or anyone claiming by,
through or under Lessee, shall occupy the Premises, insurance
coverage as follows:
i. Commercial General Liability insurance with contractual
liability endorsements with respect to the Premises and the
business of Lessee in which Lessee shall be adequately
covered under limits of liability of not less than FIVE
MILLION AND 00/100 DOLLARS ($5,000,000.00) combined single
limit per occurrence for bodily or personal injury
(including death) and property damage. Such insurance may
be carried (x) under a blanket policy covering the Premises
and other locations of Lessee, if any, provided that each
such policy shall in all respects comply with this Article
and shall specify that the portion of the total coverage of
such policy that is allocated to the Premises is in the
amounts required pursuant to this Article 30 and (y) under
a primary liability policy of not less than ONE MILLION AND
00/100 DOLLARS ($1,000,000.00) and the balance under an
umbrella policy. Notwithstanding anything to the contrary
contained in this Lease, the carrying of insurance by
Lessee in compliance with this Article 30 shall not modify,
reduce, limit or impair Lessee's obligations and liability
under Article 33 hereof.
19
ii. Fire and Extended Coverage, Vandalism, Malicious Mischief,
Sprinkler Leakage and Special Extended Coverage Insurance
in an amount adequate to cover the cost of replacement of
all personal property, decoration, trade fixtures,
furnishings, equipment in the Premises and all contents
therein. Lessor shall not be liable for any damage to such
property of Lessee by fire or other peril includable in the
coverage afforded by the standard form of fire insurance
policy with extended coverage endorsement attached (whether
or not such coverage is in effect), no matter how caused,
it being understood that the Lessee will look solely to its
insurer for reimbursement.
iii. Worker's Compensation Insurance in the minimum statutory
amount covering all persons employed by Lessee.
iv. Said limits shall be subject to periodic review and Lessor
reserves the right to increase said coverage limits if, in
the reasonable opinion of Lessor, said coverage becomes
inadequate and is less than that commonly maintained by
tenants in similar buildings in the area by tenants making
similar uses. On or before the Commencement Date, and
thereafter at Lessor's request, Lessee shall provide Lessor
evidence of the insurance coverage required herein in the
form of a duplicate original insurance policy, an insurance
binder (countersigned by the insurer), or Evidence of
Insurance (in form XXXXX 27 with respect to property
insurance and XXXXX 25-S with respect to liability
insurance) for each of the insurance policies Lessee is
required to carry in compliance with its obligations under
this Lease.
b. All of the aforesaid insurance shall (i) name Lessor as an
additional insured on a primary basis; (ii) be written by one or
more responsible insurance companies licensed in the State of New
Jersey satisfactory to Lessor and in form satisfactory to Lessor;
(iii) contain endorsements substantially as follows: "It is
understood and agreed that the insurer will give to Lessor, or
any successor lessor, c/o Xxxx-Xxxx Realty Corporation, 00
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx, thirty (30) days prior
written notice of any material change in or cancellation of this
policy."; (iv) shall be written on an "occurrence" basis and not
on a "claims made" basis.
c. Lessee shall be solely responsible for payment of premium and
Lessor (or its designee) shall not be required to pay any premium
for such insurance. Lessee shall deliver to Lessor at least
fifteen (15) days prior to the expiration of such policy, either
a duplicate original or a certificate it being the intention of
the parties hereto that the insurance required under the terms
hereof shall be continuous during the entire Term of this Lease
and any other period of time during which pursuant to the Term
hereof, said insurance is required. Any insurance carried by
Lessee shall be in excess of and will not contribute with the
insurance carried by Lessor for injuries or damage arising out of
the Premises.
d. Lessee agrees, at its own cost and expense, to comply with all
rules and regulations of the National Fire Protection Association
(NFPA) National Fire Code. If, at any time or from time to time,
as a result of or in connection with any failure by Lessee to
comply with the foregoing sentence or any act or omission or
commission by Lessee, its employees, agents, contractors or
licensees, or a result of or in connection with the use to which
the Premises are put (notwithstanding that such use may be for
the purposes hereinbefore permitted or that such use may have
been consented to by Lessor), the fire insurance rate(s)
applicable to the Premises shall be higher than that which would
be applicable for a business office legally permitted therein,
Lessee agrees that it will pay to Lessor as Additional Rent, such
portion of the premiums for all Lessor's fire insurance policies
in force with respect to the building and the contents of any
occupant thereof as shall be attributable to such higher rate(s).
x. Xxxxxx makes no representation that the limits of liability
specified to be carried by Lessee or Lessor under the terms of this
Lease are adequate to protect Lessee against Lessee's undertaking
under this Article 30, and in the event Lessee believes that any
such insurance coverage called for under this Lease is insufficient,
Lessee shall provide, at is own expense, such additional insurance
as Lessee deems adequate.
20
x. Xxxxxx and Lessee shall procure a clause in, or endorsement on,
each of their policies for fire or extended coverage insurance
covering the Premises or personal property, fixtures or equipment
located therein, pursuant to which the insurance company waives
subrogation or consents to a waiver of right of recovery against
the other party. Lessor and Lessee agree not to make claims
against, or seek to recover from, the other party for loss or
damage to its property or property of others covered by such
insurance (or which would be covered by insurance required to be
maintained hereunder). To the extent either party shall be a
self-insurer, such party waives the right of recovery, if any,
against the other party, its agents and employees, for loss,
damages or destruction of such self-insured party's property. In
the event of any conflict between the provisions of this Section
30 f. and any other provision of this Lease, the provisions of
this Section 30f. shall control.
g. Should Lessee fail to maintain the insurance coverage as set forth
in this Article 30, then Lessee shall be in default hereunder and
shall be deemed to have breached its covenants as set forth herein.
31. NO OTHER REPRESENTATIONS:
No representations or promises shall be binding on the parties hereto
except those representations and promises contained herein or in some
future writing signed by the party making such representation(s) or
promise(s).
32. QUIET ENJOYMENT:
Lessor covenants that if, and so long as, Lessee pays Fixed Basic Rent,
and any Additional Rent as herein provided, and performs Lessee's
covenants hereof, neither Lessor nor anyone claiming by, through or under
Lessor shall do anything to affect Lessee's right to peaceably and quietly
have, hold and enjoy the Premises for the Term herein mentioned, subject
to the provisions of this Lease.
33. INDEMNITY:
Lessee shall defend, indemnify and save harmless Lessor and its agents
against and from; (a) any and all claims (i) arising from (x) the conduct
or management by Lessee, its subtenants, licensees, its or their
employees, agents, contractors or invitees on the Premises or of any
business therein, or (y) any work or thing whatsoever done, or any
condition created (other than by Lessor for Lessor's or Lessee's account)
in or about the Premises during the Term of this Lease, or during the
period of time, if any, prior to the Commencement Date that Lessee may
have been given access to the Premises, (z) any default by Lessee under
the terms, covenants and conditions of this Lease or (ii) arising from any
negligent or otherwise wrongful act or omission of Lessee or any of its
subtenants or licensees or its or their employees, agents, contractors or
invitees, and (b) all costs, expenses and liabilities including attorneys
fees and disbursements incurred in or in connection with each such claim,
action or proceeding brought thereon. In case any action or proceeding be
brought against Lessor by reason of any such claim, Lessee, upon notice
from Lessor, shall resist and defend such action or proceeding.
Lessor shall indemnify and save harmless Lessee and Lessee's shareholders,
officers, directors, employees, agents and contractors (collectively, the
"Lessee Indemnitees") from and against (a) any and all claims of whatever
nature against Lessee and/or the Lessee Indemnitees (i) arising from (x)
the conduct or management by Lessor, its employees, agents, contractors or
invitees on the Office Building Area or the Building, or (y) any work or
thing whatsoever done, or any condition created by Lessor for Lessor's or
Lessee's account in or about the Office Building Area or the Building
during the Term of this Lease, (z) any default by Lessor in the
performance of Lessor's obligations under this Lease, or (ii) arising from
any negligent or otherwise wrongful act or omission of Lessor or any of
its employees, agents or contractors, and (b) all costs, expenses and
liabilities including attorneys' fees and disbursements incurred in or in
connection with each such claim, action or proceeding brought thereon. In
case any action or proceeding be brought against Lessee by reason of any
21
such claim, Lessor, upon notice from Lessee, shall resist and defend such
action or proceeding.
34. ARTICLE HEADINGS:
The article headings in this Lease and position of its provisions are
intended for convenience only and shall not be taken into consideration in
any construction or interpretation of this Lease or any of its provisions.
35. APPLICABILITY TO HEIRS AND ASSIGNS:
The provisions of this Lease shall apply to, bind and inure to the benefit
of Lessor and Lessee, and their respective heirs, successors, legal
representatives and assigns. It is understood that the term "Lessor" as
used in this Lease means only the owner, a mortgagee in possession or a
term lessee of the Building, so that in the event of any sale of the
Building or of any lease thereof, or if a mortgagee shall take possession
of the Premises, the Lessor herein shall be and hereby is entirely freed
and relieved of all covenants and obligations of Lessor hereunder accruing
thereafter, and it shall be deemed without further agreement that the
purchaser, the term lessee of the Building, or the mortgagee in possession
has assumed and agreed to carry out any and all covenants and obligations
of Lessor hereunder.
36. OUTSIDE PARKING SPACES:
Lessee's occupancy of the Premises shall include the use of the number of
outside parking spaces as set forth in the Preamble. Lessor shall not be
responsible for any damage or theft of any vehicle in the parking area and
shall not be required to keep parking spaces clear of unauthorized
vehicles or to otherwise supervise the use of the parking area. Lessee
shall, upon request, promptly furnish to Lessor the license numbers of the
cars operated by Lessee and its subtenants, licensees, invitees,
concessionaires, officers and employees. If any vehicle of the Lessee, or
of any subtenant, licensee, concessionaire, or of their respective
officers, agents or employees, is parked in any part of the Common
Facilities other than the employee parking area(s) designated therefor by
Lessor, Lessee shall pay to Lessor such reasonable penalty as may be fixed
by Lessor from time to time. All amounts due under the provisions of this
Article 36 shall be deemed to be Additional Rent.
37. LESSOR'S LIABILITY FOR LOSS OF PROPERTY:
Lessor shall not be liable for any loss of property from any cause
whatsoever, including but not limited to theft or burglary from the
Premises, and any such loss arising from the negligence of Lessor, its
agents, servants or invitees, or from defects, errors or omissions in the
construction or design of the Premises and/or the Building, including the
structural and non-structural portions thereof, and Lessee covenants and
agrees to make no claim for any such loss at any time.
38. PARTIAL INVALIDITY:
If any of the provisions of this Lease, or the application thereof to any
person or circumstances, shall to any extent, be invalid or unenforceable,
the remainder of this Lease, or the application of such provision or
provisions to persons or circumstances other than those as to whom or
which it is held invalid or unenforceable, shall not be affected thereby,
and every provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law.
39. LESSEE'S BROKER:
Lessee represents and warrants to Lessor that its broker, as defined in
the Preamble is the sole broker with whom Lessee has negotiated in
bringing about this Lease and Lessee agrees to indemnify and hold Lessor
and its mortgagee(s) harmless from any and all claims of other
22
brokers claiming to have dealt with Lessee and expenses in connection
therewith arising out of or in connection with the negotiation of or the
entering into this Lease by Lessor and Lessee. In no event shall Lessor's
mortgagee(s) have any obligation to any broker involved in this
transaction. In the event that no broker was involved as aforesaid, then
Lessee represents and warrants to the Lessor that no broker brought about
this transaction, and Lessee agrees to indemnify and hold Lessor harmless
from any and all claims of any broker claiming to have dealt with Lessee
arising out of or in connection with the negotiations of, or entering into
of, this Lease by Lessee and Lessor.
40. PERSONAL LIABILITY:
Notwithstanding anything to the contrary provided in this Lease, it is
specifically understood and agreed, such agreement being a primary
consideration for the execution of this Lease by Lessor, that there shall
be absolutely no personal liability on the part of Lessor, its constituent
members (to include but not be limited to, officers, directors, partners
and trustees) their respective successors, assigns or any mortgagee in
possession (for the purposes of this Article, collectively referred to as
"Lessor"), with respect to any of the terms, covenants and conditions of
this Lease, and that Lessee shall look solely to the equity of Lessor in
the Building (including, without limitation, rental income and proceeds of
sale, insurance and condemnation) for the satisfaction of each and every
remedy of Lessee in the event of any breach by Lessor of any of the terms,
covenants and conditions of this Lease to be performed by Lessor, such
exculpation of liability to be absolute and without any exceptions
whatsoever.
41. NO OPTION:
The submission of this Lease Agreement for examination does not constitute
a reservation of, or option for, the Premises, and this Lease Agreement
becomes effective as a Lease Agreement only upon execution and delivery
thereof by Lessor and Lessee.
42. DEFINITIONS:
a. AFFILIATE -- Affiliate shall mean any corporation related to
Lessee as a parent, subsidiary or brother-sister corporation so
that such corporation and such party and other corporations
constitute a controlled group as determined under Section 1563 of
the Internal Revenue Code of 1986, as amended and as elaborated
by the Treasury Regulations promulgated thereunder or any
business entity in which Lessee has more than a fifty percent
(50%) interest.
b. COMMON FACILITIES -- Common Facilities shall mean the
non-assigned parking areas; lobby; elevator(s); fire stairs;
public hallways; public lavatories; all other general Building
facilities that service all Building tenants; air conditioning
rooms; fan rooms; janitors' closets; electrical closets;
telephone closets; elevator shafts and machine rooms; flues;
stacks; pipe shafts and vertical ducts with their enclosing
walls. Lessor may at any time close temporarily any Common
Facilities to make repairs or changes therein or to effect
construction, repairs or changes within the Building, or to
discourage non-tenant parking, and may do such other acts in and
to the Common Facilities as in its judgement may be desirable to
improve the convenience thereof, but shall always in connection
therewith, endeavor to minimize any inconvenience to Lessee.
c. FORCE MAJEURE -- Force Majeure shall mean and include those
situations beyond Lessor's reasonable control, including by way
of example and not by way of limitation, acts of God; accidents;
repairs; strikes; shortages of labor, supplies or materials;
inclement weather; or, where applicable, the passage of time
while waiting for an adjustment or insurance proceeds. Any time
limits required to be met by either party hereunder, whether
specifically made subject to Force Majeure or not, except those
related to the payment of Fixed Basic Rent or Additional Rent,
shall, unless specifically stated to the contrary elsewhere in
this Lease, be automatically extended by the number of days by
which any performance called for is delayed due to Force Majeure.
23
d. LESSEE'S PERCENTAGE -- The parties agree that Lessee's
Percentage, as defined in the Preamble, reflects and will be
continually adjusted to reflect the ratio of the gross square
feet of the area rented to Lessee (including an allocable share
of all Common Facilities) [the numerator] as compared with the
total number of gross square feet of the entire Building (or
additional buildings that may be constructed within the Office
Building Area) [the denominator] measured outside wall to outside
wall, but excluding therefrom any storage areas. Lessor shall
have the right to make changes or revisions in the Common
Facilities of the Building so as to provide additional leasing
area. Lessor shall also have the right to construct additional
buildings in the Office Building Area for such purposes as Lessor
may deem appropriate, and subdivide the lands for that purpose if
necessary, and upon so doing, the Office Building Area shall
become the subdivided lot on which the Building in which the
Premises is located. However, if any service provided for in
Article 23(a) or any utility provided for in Article 23(b) is
separately billed or separately metered within the Building, then
the square footage so billed or metered shall be subtracted from
the denominator and the Lessee's proportionate share for such
service and/or utility shall be separately computed, and the Base
Costs for such item shall not include any charges attributable to
said square footage. Lessee understands that as a result of
changes in the layout of the Common Facilities from time to time
occurring due to, by way of example and not by way of limitation,
the rearrangement of corridors, the aggregate of all Building
tenant proportionate shares may be equal to, less than or greater
than one hundred percent (100%).
43. LEASE COMMENCEMENT:
The Rent Commencement Date of this Lease, as defined in the Preamble to
this Lease, shall occur regardless of Lessee's failure to complete tenant
improvement work pursuant to Exhibit C attached hereto. Lessor and Lessee
shall ratify and confirm the Rent Commencement Date and Expiration Date by
completing and signing Exhibit G attached hereto and made a part hereof.
44. NOTICES:
Any notice by either party to the other shall be in writing and shall be
deemed to have been duly given only if (i) delivered personally or (ii)
sent by registered mail or certified mail return receipt requested in a
postage paid envelope addressed or (iii) sent by nationally recognized
overnight delivery service, if to Lessee, at the Building (except that any
notice to Lessee prior to the Rent Commencement Date shall be addressed to
Lessee at 0 Xxxxxx Xxx, Xxxxxxxxxx, XX 07054); if to Lessor, at Lessor's
address as set forth above; or, to either at such other address as Lessee
or Lessor, respectively, may designate in writing. Notice shall be deemed
to have been duly given, if delivered personally, on delivery thereof, if
mailed, upon the tenth (10th) day after the mailing thereof or if sent by
overnight delivery service, the next business day.
45. ACCORD AND SATISFACTION:
No payment by Lessee or receipt by Lessor of a lesser amount than the rent
and additional charges payable hereunder shall be deemed to be other than
a payment on account of the earliest stipulated Fixed Basic Rent and
Additional Rent, nor shall any endorsement or statement on any check or
any letter accompanying any check or payment for Fixed Basic Rent or
Additional Rent be deemed an accord and satisfaction, and Lessor may
accept such check or payment without prejudice to Lessor's right to
recover the balance of such Fixed Basic Rent and Additional Rent or pursue
any other remedy provided herein or by law.
46. EFFECT OF WAIVERS:
No failure by Lessor to insist upon the strict performance of any
covenant, agreement, term or condition of this Lease, or to exercise any
right or remedy consequent upon a breach thereof, and no acceptance of
full or partial rent during the continuance of any such breach,
24
shall constitute a waiver of any such breach or of such covenant,
agreement, term or condition. No consent, or waiver, express or implied,
by Lessor to or of any breach of any covenant, condition or duty of Lessee
shall be construed as a consent or waiver to or of any other breach of the
same or any other covenant, condition or duty, unless in writing signed by
Lessor.
47. LEASE CONDITION: INTENTIONALLY OMITTED
48. MORTGAGEE'S NOTICE AND OPPORTUNITY TO CURE:
Lessee agrees to give any mortgagees and/or trust deed holders, by
registered mail, a copy of any notice of default served upon Lessor,
provided that, prior to such notice, Lessee has been notified in writing
(by way of notice of assignment of rents and leases or otherwise) of the
address of such mortgagees and/or trust deed holders. Lessee further
agrees that, if Lessor shall have failed to cure such default within the
time provided for in this Lease, then the mortgagees and/or trust deed
holders 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 necessary, if within such thirty (30) days,
any mortgagee and/or trust deed holder 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 this Lease shall not be terminated while such
remedies are being so diligently pursued.
49. LESSOR'S RESERVED RIGHT:
Lessor and Lessee acknowledge that the Premises are in a Building which is
not open to the general public. Access to the Building is restricted to
Lessor, Lessee, their agents, employees and contractors and to their
invited visitors. In the event of a labor dispute including a strike,
picketing, informational or associational activities directed at Lessee or
any other tenant, Lessor reserves the right unilaterally to alter Lessee's
ingress and egress to the Building or make any change in operating
conditions to restrict pedestrian, vehicular or delivery ingress and
egress to a particular location.
50. CORPORATE AUTHORITY:
If Lessee is a corporation, Lessee represents and warrants that this Lease
has been duly authorized and approved by the corporation's Board of
Directors. The undersigned officers and representatives of the corporation
represent and warrant that they are officers of the corporation with
authority to execute this Lease on behalf of the corporation, and within
fifteen (15) days of execution hereof, Lessee will provide Lessor with a
corporate resolution confirming the aforesaid.
51. AFTER-HOURS USE:
Lessee shall be entitled to make use of said Standard Electric Service and
HVAC beyond the Building Hours, at Lessee's sole cost and expense,
provided Lessee shall notify the Lessor by 3:00 p.m. on the day that
Lessee shall require said overtime use if said overtime use is required on
any weekday, and by 3:00 p.m. on Friday for Saturday and/or Sunday
overtime use. It is understood and agreed that Lessee shall pay the sum of
SEVENTY-FIVE AND 00/100 DOLLARS ($75.00) per hour per zone for
air-conditioning service and SIXTY AND 00/100 DOLLARS ($60.00) per hour
per zone for heating services, plus such additional percentage increase of
the aforesaid hourly sum computed by measuring the percentage increase
between the rate in effect (including fuel surcharges or adjustments)
during the month for which such overtime use is requested and the Base
Rate. The Base Rate for purposes hereof shall be the average of the rates
in effect (including surcharges and/or adjustments) during Calendar Year
2003.
25
In no event shall the Lessee pay less than the sum of SEVENTY-FIVE AND
00/100 DOLLARS ($75.00) per hour per zone for such overtime
air-conditioning service or less than SIXTY AND 00/100 DOLLARS ($60.00)
per hour per zone for such overtime heating service.
52. LESSEE'S EXPANSION/RELOCATION: INTENTIONALLY OMITTED
53. BUILDING PERMIT:
Intentionally Omitted.
54. OPTION TO RENEW
(a) If the term of this Lease shall then be in full force and effect
and Lessee is not in default hereunder beyond applicable notice
and grace periods, Lessee shall have the option to extend the
term of this Lease for a period of five (5) years (the "Renewal
Term") commencing on the day immediately following the Expiration
Date, provided however that Lessee shall give Lessor notice of
its election to extend the term no earlier than eighteen (18)
months prior to the Expiration Date nor later than nine (9)
months prior to the Expiration Date of the initial term. TIME
BEING OF THE ESSENCE in connection with the exercise of Lessee's
option pursuant to this Article.
(b) Such extension of the term of this Lease shall be upon the same
covenants and conditions, as herein set forth except: (i) for the
Fixed Basic Rent (which shall be determined in the manner set
forth below), (ii) the Base Period Costs shall be re-set to be
those incurred in the first year of the Renewal Term, and (iii)
that Lessee shall have no further right to extend the term of
this Lease after the exercise of the single option described in
paragraph (a) of this Section. If Lessee shall duly give notice
of its election to extend the term of this Lease, the Renewal
Term shall be added to and become a part of the Term of this
Lease (but shall not be considered a part of the initial Term),
and any reference in this Lease to the "Term of this Lease", the
"Term hereof", or any similar expression shall be deemed to
include such Renewal Term, and, in addition, the term "Expiration
Date" shall thereafter mean the last day of such Renewal Term.
Lessor shall have no obligation to perform any alteration or
preparatory or other work in and to the Premises and Lessee shall
continue possession thereof in its "as is" condition.
(c) If Lessee exercises its option for the Renewal Term, the Fixed Basic
Rent during the Renewal Term shall be the fair market rent for the
Premises, as hereinafter defined.
(d) Lessor and Lessee shall use their best efforts, within thirty
(30) days after Lessor receives Lessee's notice of its election
to extend the Term of this Lease for the Renewal Term
("Negotiation Period"), to agree upon the Fixed Basic Rent to be
paid by Lessee during the Renewal Term. If Lessor and Lessee
shall agree upon the Fixed Basic Rent for the Renewal Term, the
parties shall promptly execute an amendment to this Lease stating
the Fixed Basic Rent for the Renewal Term.
(e) If the parties are unable to agree on the Fixed Basic Rent for
the Renewal Term during the Negotiation Period, then within
fifteen (15) days after notice from the other party, given after
expiration of the Negotiation Period, each party, at its cost and
upon notice to the other party, shall appoint a person to act as
an appraiser hereunder, to determine the fair market rent for the
Premises for the Renewal Term. Each such person shall be a real
estate broker or appraiser with at least ten years' active
commercial real estate appraisal or brokerage experience
(involving the leasing of office space as agent for both
landlords and lessees) in the County of Xxxxxx. If a party does
not appoint a person to act as an appraiser within said fifteen
(15) day period, the person appointed by the other party shall be
the sole appraiser and shall determine the aforesaid fair market
rent. Each notice containing the name of a person to act as
appraiser shall contain also the person's address. Before
proceeding to establish the fair market rent, the appraisers
shall subscribe and swear to an oath fairly and impartially to
determine such rent.
26
If the two appraisers are appointed by the parties as stated in the
immediately preceding paragraph, they shall meet promptly and
attempt to determine the fair market rent. If they are unable to
agree within forty-five (45) days after the appointment of the
second appraiser, they shall attempt to select a third person
meeting the qualifications stated in the immediately preceding
paragraph within fifteen (15) days after the last day the two
appraisers are given to determine the fair market rent. If they are
unable to agree on the third person to act as appraiser within said
fifteen (15) day period, the third person shall be appointed by the
American Arbitration Association (the "Association"), upon the
application of Lessor or Lessee to the office of the Association
nearest the Building. The person appointed to act as appraiser by
the Association shall be required to meet the qualifications stated
in the immediately preceding paragraph. Each of the parties shall
bear fifty percent (50%) of the cost of appointing the third person
and of paying the third person's fees. The third person, however
selected, shall be required to take an oath similar to that
described above.
The three appraisers shall meet and determine the fair market rent.
A decision in which two of the three appraisers concur shall be
binding and conclusive upon the parties. In deciding the dispute,
the appraisers shall act in accordance with the rules then in force
of the Association, subject however, to such limitations as may be
placed on them by the provisions of this Lease.
Notwithstanding the foregoing, in no event shall the Fixed Basic
Rent during the Renewal Term be less than the Fixed Basic Rent
during the last year of the initial Term of this Lease.
(f) After the fair market rent for the Renewal Term has been determined
by the appraiser or appraisers and the appraiser or appraisers shall
have notified the parties, at the request of either party, both
parties shall execute and deliver to each other an amendment of this
Lease stating the Fixed Basic Rent for the Renewal Term.
(g) If the Fixed Basic Rent for the Renewal Term has not been agreed
to or established prior to the commencement of the Renewal Term,
then Lessee shall pay to Lessor an annual rent ("Temporary Rent")
which Temporary Rent shall be equal to the Fixed Basic Rent
payable by Lessee for the last year of the initial Term.
Thereafter, if the parties shall agree upon a Fixed Basic Rent,
or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or
appraisers, at a rate at variance with the Temporary Rent (i) if
such Fixed Basic Rent is greater than the Temporary Rent, Lessee
shall promptly pay to Lessor the difference between the Fixed
Basic Rent determined by agreement or the appraisal process and
the Temporary Rent, or (ii) if such Fixed Basic Rent is less than
the Temporary Rent, Lessor shall credit to Lessee's subsequent
monthly installments of Fixed Basic Rent the difference between
the Temporary Rent and the Fixed Basic Rent determined by
agreement or the appraisal process.
(h) In describing the fair market rent during the Renewal Term, the
appraiser or appraisers shall be required to take into account
the rentals at which leases are then being concluded (as of the
last day of the initial Term) (for five (5) year leases without
renewal options with the lessor and lessee each acting prudently,
with knowledge and for self-interest, and assuming that neither
is under undue duress) for as-is comparable space in the Building
and in comparable office buildings in the County of Xxxxxx,
without a Lessor contribution for tenant fit-up but with new base
years.
55. RIGHT OF FIRST OFFER
a. i. Subject to the provisions of this Article, Lessee shall have
the option to lease from Lessor space on the east wing of the
second (2nd) floor as shown on the attached floor plan,
("Additional Space") at the expiration of the existing space
lease(s) for such Additional Space, or to the extent any
portion of the Additional Space is presently vacant, at the
expiration of the initial lease for such vacant space. If the
Term of this Lease shall be in full force and effect on the
expiration or termination date of the existing space lease(s)
or initial space lease, as the case may be, for the Additional
Space, subject to Lessor's right to
27
renew such lease(s), and the date upon which Lessee shall
exercise the option hereinafter referred to, Lessee shall have
the option to lease all, but not less than all of the
Additional Space on an as-is basis, provided Lessee gives
Lessor written notice of such election within fifteen (15)
business days after Lessee shall receive Lessor's notice that
such Additional Space is available for leasing to Lessee. If
Lessee fails or refuses to exercise this option within the
time period set forth above (TIME BEING OF THE ESSENCE), then
and in such event Lessee shall have no further rights under
this Section with respect to such Additional Space. If Lessee
shall elect to lease said Additional Space: (v) said
Additional Space shall be deemed incorporated within and part
of the Premises on the date that Lessor shall notify Lessee
that such Additional Space is ready for occupancy by Lessee
and shall expire on the Expiration Date of this Lease, (x) the
Fixed Basic Rent payable under this Lease shall be increased
by an amount such that during the balance of the term of this
Lease the Fixed Basic Rent for said Additional Space shall be
the then fair market rent for the Additional Space, as
determined in the manner set forth in clause (ii) below, (y)
Lessee's Percentage Share shall be proportionately increased,
and (z) all other terms and provisions set forth in this Lease
shall apply, except that Lessor not be required to perform any
work with respect to said Additional Space.
The parties shall promptly execute an amendment of this Lease
confirming Lessee's election to lease said Additional Space
and the incorporation of said Additional Space into the
Premises.
ii. Lessor and Lessee shall use their best efforts, within thirty
(30) days after Lessor receives Lessee's notice of its
election to lease said Additional Space, ("Negotiation
Period") to agree upon the Fixed Basic Rent to be paid by
Lessee for said Additional Space. If Lessor and Lessee shall
agree upon the Fixed Basic Rent, the parties shall promptly
execute an amendment to this Lease stating the Fixed Basic
Rent for the Additional Space.
If the parties are unable to agree on the Fixed Basic Rent for
said Additional Space during the Negotiation Period, then
within fifteen (15) days notice from the other party, given
after expiration of the Negotiation Period, each party, at its
cost and upon notice to the other party, shall appoint a
person to act as an appraiser hereunder, to determine the fair
market rent for the Additional Space. Each such person shall
be a real estate broker or appraiser with at least ten (10)
years' active commercial real estate appraisal or brokerage
experience (involving the leasing of similar space as agent
for both landlords and tenants) in Xxxxxx County. If a party
does not appoint a person to act as an appraiser within said
fifteen (15) day period, the person appointed by the other
party shall be the sole appraiser and shall determine the
aforesaid fair market rent. Each notice containing the name of
a person to act as appraiser shall contain the person's
address. Before proceeding to establish the fair market rent,
the appraisers shall subscribe and swear to an oath fairly and
impartially to determine such rent.
If the two appraisers are appointed by the parties as stated
in the immediately preceding paragraph, they shall meet
promptly and attempt to determine the fair market rent. If
they are unable to agree within forty-five (45) days after the
appointment of the second appraiser, they shall attempt to
select a third person meeting the qualifications stated in the
immediately preceding paragraph within fifteen (15) days after
the last day the two appraisers are given to determine the
fair market rent. If they are unable to agree on the third
person to act as appraiser within said fifteen (15) day
period, the third person shall be appointed by the American
Arbitration Association, upon the application of Lessor or
Lessee to the office of the Association nearest the Building.
The person appointed to act as appraiser by the Association
shall be required to meet the qualifications stated in the
immediately preceding paragraph. Each of the parties shall
bear fifty percent (50%) of the cost of appointing the third
person and of paying the third person's fees. The third
person, however selected, shall be required to take an oath
similar to that described above.
The three appraisers shall meet and determine the fair market
rent. A decision
28
in which two of the three appraisers concur shall be binding
and conclusive upon the parties. In deciding the dispute, the
appraisers shall act in accordance with the rules then in
force of the American Arbitration Association, subject
however, to such limitations as may be placed on them by the
provisions of this Lease.
After the Fixed Basic Rent for the Additional Space has been
determined by the appraiser or appraisers and the appraiser or
appraisers shall have notified the parties, at the request of
either party, both parties shall execute and deliver to each
other an amendment of this Lease stating the Fixed Basic Rent
for the Additional Space.
If the Fixed Basic Rent for said Additional Space has not been
agreed to or established prior to the incorporation of said
Additional Space in the Premises, then Lessee shall pay to
Lessor an annual rent ("Temporary Rent") which Temporary Rent
on a per square foot basis shall be equal to the Fixed Basic
Rent, on a per square foot basis, then being paid by Lessee
for the Premises.
Thereafter, if the parties shall agree upon a Fixed Basic
Rent, or the Fixed Basic Rent shall be established upon the
determination of the fair market rent by the appraiser or
appraisers, at a rate at variance with the Temporary Rent (i)
if such Fixed Basic Rent is greater than the Temporary Rent,
Lessee shall promptly pay to Lessor the difference between the
Fixed Basic Rent determined by agreement or the appraisal
process and the Temporary Rent, or (ii) if such Fixed Basic
Rent is less than the Temporary Rent, Lessor shall credit to
Lessee's subsequent monthly installments of Fixed Basic Rent
the difference between the Temporary Rent and the Fixed Basic
Rent determined by agreement or the appraisal process.
In determining the fair market rent for said Additional Space,
the appraiser or appraisers shall be required to take into
account the rentals at which leases are then being concluded
for comparable space in the Building and in comparable
buildings in the County of Xxxxxx, New Jersey, without a
Lessor contribution for tenant fit-up. In no event shall the
Fixed Basic Rent for the Additional Space, on a per square
foot basis, be less than the Fixed Basic Rent for the
Premises, on a per square foot basis.
b. The option granted to Lessee under this Article 55 may be
exercised only by Lessee, its permitted successors and assigns, and
not by any subtenant or any successor to the interest of Lessee by
reason of any action under the Bankruptcy Code, or by any public
officer, custodian, receiver, United States Trustee, trustee or
liquidator of Lessee or substantially all of Lessee's property.
Lessee shall have no right to exercise any of such options
subsequent to the date Lessor shall have the right to give the
notice of termination referred to in Article 13. Notwithstanding the
foregoing, Lessee shall have no right to exercise the option granted
to Lessee hereunder if, at the time it gives notice of such election
(i) Lessee shall not be in occupancy of substantially all of the
Premises or (ii) the Premises or any part thereof shall be the
subject of a sublease. If Lessee shall have elected to exercise its
option hereunder, such election shall bee deemed withdrawn if, at
any time after the giving of notice of such election and prior to
the occupancy of the Additional Space, Lessee shall sublease all or
any part of the Premises.
56. ROOF RIGHTS.
Without limiting any other provision of this Lease, Lessee shall have the
non-exclusive right to install one satellite dish (the "Dish") and a
supplemental air conditioning unit for the Premises (the "Air Conditioner"
and, together with the Dish, the "Facilities") on the roof of the Building
(including necessary connection to the Demised Premises) for use by
Lessee, provided any such installations shall be subject to Lessor's prior
consent, which consent shall not be unreasonably withheld, conditioned or
delayed. Any such Facilities shall be installed in accordance with all
applicable laws and building codes. Lessee shall remove such Facilities at
the expiration or
29
earlier termination of the Lease; provided Lessee shall repair any damage
to the roof caused by such removal. Prior to making any installations on
the roof of the Building, Lessee shall use a roofing contractor for all
work to be performed by Lessee on the roof of the Building approved by
Lessor, which approval shall not be unreasonably withheld.
Lessee shall furnish detailed plans and specifications for the Facilities
(or any modifications thereof) to Lessor for its approval. The parties
agree that Lessee's use of the rooftop of the Building is a non-exclusive
use and Lessor may permit the use of any other portion of the roof to any
other person for any use including installation of other satellite dishes,
antennas and support equipment. Lessee shall use its reasonable efforts to
insure that its use of the rooftop does not impair such other person's
data transmission and reception via its respective antennas and support
equipment. If Lessee's construction, installation, maintenance, repair,
operation or use of the Dish shall interfere with the rights of Lessor
(including, without limitation, Lessor's right to reasonably use the
remainder of the roof) or other lessees in the Building, Lessee shall
cooperate with Lessor or such other lessees in eliminating such
interference; provided, however, the cost of remedying such interference
shall be borne by the party which is suffering such interference, unless
such party was not suffering such interference prior to the use of the
Dish causing such interference by Lessee, in which case the cost of
remedying such interference shall be borne by Lessee. Lessee shall secure
and keep in full force and effect, from and after the time Lessee begins
construction and installation of the Facilities, such supplementary
insurance with respect to the Facilities as Lessor may reasonably require,
provided that the same shall not be in excess of that which would
customarily be required from time to time by Lessors of buildings of
similar class and character in Xxxxxx County, New Jersey with respect to
similar installations.
In connection with the installation, maintenance and operation of the
Facilities , Lessee, at Lessee's sole cost and expense, shall comply with
all legal requirements and shall procure, maintain and pay for all permits
required therefor, and Lessor makes no warranties whatsoever as to the
permissibility of the Facilities under applicable legal requirements or
the suitability of the roof of the Building for the installation thereof.
If Lessor's structural engineer deems it advisable that there be
structural reinforcement of the roof in connection with the installation
of the Facilities, Lessor shall perform same at Lessee's cost and expense
and Lessee shall not perform any such installation prior to the completion
of any such structural reinforcement. The installation of the Facilities
shall be subject to the provisions of Articles 5 and 6 applicable to
alterations and installations. For the purpose of installing, servicing or
repairing the Facilities, Lessee shall have access to the rooftop of the
Building, upon reasonable notice to Lessor, and Lessor shall have the
right to require, as a condition to such access, that Lessee (or its
employee, contractor or other representative) at all times be accompanied
by a representative of Lessor. Lessee shall pay for all electrical service
required for Lessee's use of the Facilities, in accordance with the
provision set forth in Article 22 hereof.
Lessee, at its sole cost and expense, shall promptly repair any and all
damage to the rooftop or to any other part of the Building caused by the
installation, maintenance and repair, operation or removal of the
Facilities. Lessee shall be responsible for all costs and expense for
repairs of the roof which result from Lessee's use of the roof for the
construction, installation, maintenance, repair, operation and use of the
Facilities. All installations made by Lessee on the rooftop or in any
other part of the Building pursuant to the provisions of this Article 56
shall be at the sole risk of Lessee, and neither Lessor, nor any agent or
employee of Lessor, shall be responsible or liable for any injury or
damage to, or arising out of, the Facilities. Lessee's indemnity under
Article 33 shall apply with respect to the installation, maintenance,
operations, presence or removal of the Facilities by Lessee.
Upon the expiration of the Term, the Facilities shall be removed by Lessee
at its sole cost and expense, and Lessee shall repair any damage to the
rooftop or any other portions of the Building to substantially their
condition immediately prior to Lessee's installation of the Facilities
(ordinary wear and tear excepted).
Notwithstanding anything to the contrary contained in this Article 56,
Lessor shall have the right, at Lessor's expense, on not less than thirty
(30) days' prior notice, to relocate the Facilities to another location on
the roof of the Building, such expense to include, without limitation, the
removal of the existing Facilities, the purchasing of labor, materials and
equipment necessary for the relocation thereof and the reinstallation of
the Facilities at such other location as reasonably designated by Lessor
on the roof of the Building, provided that Lessor does not, except if work
is reasonably required to be performed on the roof or in the
30
Building, either materially interfere with or adversely affect the receipt
of and/or transmittal of microwaves or other similar signals, and Lessee
shall cooperate in all reasonable respects with Lessor in any such
relocations; provided, however, that if such relocation is done pursuant
to any legal requirement, the cost thereof shall be borne by Lessee
(unless such legal requirement relates to, or results from, other actions
taken, or permitted to be taken, by Lessor, in which event Lessor shall
bear all of the costs and expenses of such relocation).
The rights granted in this Article 56 are given in connection with, and as
part of the rights created under this Lease and are not separately
transferable or assignable.
If the installation of the Facilities or act or omission relating thereto
should revoke, negate or in any manner impair or limit any roof warranty
or guaranty obtained by Lessor, then Lessee shall reimburse Lessor for any
loss or damage sustained or costs or expenses incurred by Lessor as a
result of such impairment or limitation.
57. LESSOR'S INSURANCE:
During the Term, Lessor shall maintain the following insurance, insuring
Lessor and any mortgagee, as their respective interests may appear: (x)
insurance against damage to the Building and Office Building Area by all
risks of direct physical loss in an amount equivalent to the full
replacement cost thereof; (y) comprehensive general liability insurance
against claims for bodily injury and property damage occurring in or about
the Common Facilities in amounts customarily carried by owners of similar
buildings in the Xxxxxx County, New Jersey area; and (z) insurance against
such other hazards as, from time to time, are then commonly insured
against for buildings similarly situated in amounts normally carried with
respect thereto. All insurance maintained pursuant to this Article 57 may
be effected by blanket insurance policies.
58. OTHER AGREEMENTS:
Lessor shall deliver to Lessee, upon the execution of this Lease, the
written agreement of Xxxx-Xxxx Xxxxxx Realty L.L.C. ("MCMR"), in form and
substance reasonably satisfactory to Lessee, providing for: (i) effective
as of the Rent Commencement Date of this Lease, the termination of that
certain Lease, dated August 15, 2000, by and between MCMR and The
Medicines Company ("TMC"), and that certain Lease, dated February 28,
2000, between MCMR and Stack Pharmaceuticals, Inc., assigned to TMC by
Assignment and Assumption of Lease dated October 18, 2001, relating to
premises located at 0 Xxxxxx Xxx, Xxxxxxxxxx, Xxx Xxxxxx, in each case as
if such termination were occurring upon the respective expiration dates of
such leases, and (ii) the extension of the term of that certain Storage
Space License, dated October 12, 2001, between MCMR and TMC until the
earlier of (x) the Expiration Date of this Lease, or (y) such date as
storage space, similar in size and quality to the space which is the
subject of such license, shall be available in the Building for use by
Lessee. If storage space in the Building shall become available for
leasing, Lessor shall use commercially reasonable efforts to notify Lessee
and Lessee shall have fifteen (15) business days to accept Lessor's offer
upon the terms and conditions set forth in Lessor's offer. A failure of
Lessor to notify Lessee of the availability of such storage space shall
not constitute default under this Lease.
31
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under this Lease or make any claim that this Lease is invalid or
unenforceable due to any failure of this document to comply with ministerial
requirements including, but not limited to, requirements for corporate seals,
attestations, witnesses, notarizations, or other similar requirements, and each
party hereby waives the right to assert any such defense or make any claim of
invalidity or unenforceability due to any of the foregoing.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals the day and year first above written.
LESSOR: LESSEE:
SYLVAN/CAMPUS REALTY L.L.C THE MEDICINES COMPANY
By: Grove Street Associates of Jersey City
Limited Partnership, member
By: Xxxx-Xxxx Sub IV, Inc., its general
partner
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxxx
By: _____________________________ By: ____________________________
Xxxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxxx
Vice President - Leasing Title: Chief Financial Officer
32
EXHIBIT A
LOCATION OF PREMISES
Exhibit A - Page 1
EXHIBIT X-0
XXXXXX XXXXXXXX XXXX
All that certain lot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying and being in the Township of
Parsippany-Xxxx Hills, County of Xxxxxx, State of New Jersey:
BEGINNING at an iron pipe at a corner common to Lot 3.10 and Lot 3.11 Block
202 on the easterly right-of-way line of Hilton Court as shown on a map
entitled "Final Plat of Prudential Business Campus, Block 202, Lots 3.02 thru
3.12 Tax Map Sheet Nos. 62 & 63, 66 & 67, 69 & 70, situated in
Parsippany-Xxxx Hills Township, Xxxxxx County, New Jersey, Sheet 1 of 2"
prepared by Xxxxxxxxx and Xxxxxxx, Xxxxxxx X. Xxxxxxx, P.E. & L.S., N.J.
License No. 8456. Said map being filed in the Xxxxxx County Clerk's Office
on April 29, 1980 as Map #3908; thence
1. Along the easterly right-of-way line of Hilton Court on the arc of a
curve to the left having a radius of 525.00 feet, an arc length of
118.00 feet and a central angle of 12(degree) 52' 40" to a point of
tangency; thence
2. Continuing along same, N 08(degree) 47' 00" E 490.89 feet to a point of
curvature; thence
3. Along the arc of a curve to the right having a radius of 90.00 feet, an
arc length of 141.37 feet and a central angle of 90(degree) 00' 00" to a
concrete monument at a point of tangency on the southerly right-of-way
line of Campus Drive; thence
4. Along same, S 81(degree) 12' 00" E 455.00 feet to a concrete monument at a
point of curvature; thence
5. Along the arc of a curve to the right having a radius of 40.00 feet, an
arc length of 62.83 feet and a central angle of 90(degree) 00' 00", to a
concrete monument at a point of tangency; thence along the westerly
right-of-way line of Xxxxxx Way on the following three courses:
6. S 08(degree) 47' 00" W 704.33 feet to a concrete monument; thence
7. N 81(degree) 13' 00" W 2.00 feet to a concrete monument; thence
8. S 08(degree) 47' 00" W 89.88 feet to an iron pipe; thence
9. Along a line common to Xxx 0.00 xxx Xxx 0.00, Xxxxx 000,
X 68(degree) 20' 20" W 611.59 feet to the point of BEGINNING.
All that certain tract, or parcel of land and premises, hereinafter particularly
described, situate, lying and being in the Township of Parsippany-Xxxx Hills, in
the County of Xxxxxx, and the State of New Jersey:
BEGINNING at the point of intersection of the projection of the westerly
sideline of Parsippany Road and the northerly sideline of Xxxxxxx'x Road,
running thence South 85(degree) 19' 57" West 96.53 feet to the true point Of the
beginning and running thence;
(1) Along the northerly sideline of said Xxxxxxx'x Road, 60 feet wide,
South 85(degree) 19' 57" West 393.30 feet; thence
(2) North 53(degree) 22' 15" West 238.00 feet; thence
(3) North 50(degree) 43' 10" West 216.33 feet; thence
(4) North 39(degree) 16'50" East 134.14 feet along southeasterly sideline of
Interstate Route 287 (formerly U.S. Route 202) as shown on a plat
entitled "New Jersey State Highway Department General Property Parcel
Map Route U.S. 202 Freeway Section 1" sheets 1 through 4 dated
December, 1953 and filed in the Xxxxxx County Clerk's Office on
February 18, 1955 as Map No. 1560-F; thence
Exhibit A - Page 1
(5) At right angles to said Interstate Route 287 South 50(degree) 43' 10" East
5.00 feet; thence
(6) At right angles to the previous course and along the southerly sideline of
said Interstate 287 as shown on a plat entitled "New Jersey State Highway
Department General Property Parcel Map Route U.S. 202 Freeway Section 1"
sheets 1 through 4 dated December, 1953 and filed in the Xxxxxx County
Clerk's Office on February 18, 1955 as Map No. 1560-F, North 39(degree)
16' 50" East 355.00 feet; thence
(7) Leaving the southeasterly sideline of said Interstate Route 287, North
85(degree) 16' 50" East 135.00 feet; thence
(8) South 67(degree) 43' 10" East 145.00 feet; thence
(9) South 50(degree) 43' 10" East 105.00 feet; thence
(10) South 30(degree) 43' 10" East 75.00 feet; thence
(11) South 18(degree) 24' 25" East 361.30 feet along the westerly sideline of
Parsippany Road; thence
(12) Along the westerly sideline of Parsippany Road, South 17(degree) 35' 00"
East 44.13 feet; thence
(13) South 51(degree) 30' 00" West 100.73 feet; to the point of BEGINNING.
The forgoing premises are shown on a survey make by Couvrette Associates Inc.
Consulting Engineers, Rockaway, New Jersey, dated September 21, 1978, last
revised to April 1, 1992 showing Xxx 0, Xxxxx 000, Xxx Xxxx Xxxxxxxx xx
Xxxxxxxxxx-Xxxx Hills, Xxxxxx County, New Jersey.
The foregoing survey reference shall not be deemed or construed to limit or
diminish the estate more particularly described above and encumbered hereby.
Exhibit A - Page 2
EXHIBIT B
RULES AND REGULATIONS
1. OBSTRUCTION OF PASSAGEWAYS: The sidewalks, entrance, passages, courts,
elevators, vestibules, stairways, corridors and public parts of the
Building shall not be obstructed or encumbered by Lessee or used by Lessee
for any purpose other than ingress and egress. If the Premises are situated
on the ground floor with direct access to the street, then Lessor shall, at
Lessor's expense, keep the sidewalks and curbs directly in front of the
Premises clean and free from ice, snow and refuse.
2. WINDOWS: Windows in the Premises shall not be covered or obstructed by
Lessee. No bottles, parcels or other articles shall be placed on the
windowsills, in the halls, or in any other part of the Building other
than the Premises. No article shall be thrown out of the doors or
windows of the Premises.
3. PROJECTIONS FROM BUILDING: No awnings, air-conditioning units, or other
fixtures shall be attached to the outside walls or the window xxxxx of
the Building or otherwise affixed so as to project from the Building,
without prior written consent of Lessor.
4. SIGNS: No sign or lettering shall be affixed by Lessee to any part of
the outside of the Premises, or any part of the inside of the Premises
so as to be clearly visible from the outside of the Premises, without
the prior written consent of Lessor, which consent shall not be
unreasonably withheld or delayed. However, Lessee shall have the right
to place its name on any door leading into the Premises the size, color
and style thereof to be subject to the Lessor's approval. Lessee shall
not have the right to have additional names placed on the Building
directory without Lessor's prior written consent.
5. FLOOR COVERING: Lessee shall not lay linoleum or other similar floor
covering so that the same shall come in direct contact with the floor of
the Premises. If linoleum or other similar floor covering is desired to be
used, an interlining of builder's deadening felt shall first be fixed to
the floor by a paste or other material that may easily be removed with
water, the use of cement or other similar adhesive material being expressly
prohibited.
6. INTERFERENCE WITH OCCUPANTS OF BUILDING: Lessee shall not make, or permit
to be made, any unseemly or disturbing noises or odors and shall not
interfere with other tenants or those having business with them. Lessee
will keep all mechanical apparatus in the Premises free of vibration and
noise which may be transmitted beyond the limits of the Premises.
7. LOCK KEYS: No additional locks or bolts of any kind shall be placed on
any of the doors or windows by Lessee. Lessee shall, on the termination
of Lessee's tenancy, deliver to Lessor all keys to any space within the
Building either furnished to or otherwise procured by Lessee, and in the
event of the loss of any keys furnished, Lessee shall pay to Lessor the
cost thereof. Lessee, before closing and leaving the Premises, shall
ensure that all windows are closed and entrance doors locked. Nothing
in this Paragraph 7 shall be deemed to prohibit Lessee from installing a
burglar alarm within the Premises, provided: (1) Lessee obtains Lessor's
consent which will not be unreasonably withheld or delayed; (2) Lessee
supplies Lessor with copies of the plans and specifications of the
system; (3) such installation shall not damage the Building; and (4) all
costs of installation shall be borne solely by Lessee.
8. CONTRACTORS: No contract of any kind with any supplier of towels, water,
toilet articles, waxing, rug shampooing, venetian blind washing,
furniture polishing, lamp servicing, cleaning of electrical fixtures,
removal of waste paper, rubbish, garbage, or other like service shall be
entered into by Lessee, nor shall any machine of any kind be installed
in the Building or the Office Building Area (other than ordinary office
equipment) without the prior written consent of the Lessor. Lessee
shall not employ any persons other than Lessor's janitors for the
purpose of cleaning the Premises without prior written consent of
Lessor. Lessor shall not be responsible to Lessee for any loss of
property from the Premises however occurring, or for any damage to the
effects of Lessee by such janitors or any of its employees, or by any
other person or any other cause.
Exhibit B - Page 1
9. PROHIBITED ON PREMISES: Lessee shall not conduct, or permit any other
person to conduct, any auction upon the Premises, manufacture or store
goods, wares or merchandise upon the Premises without the prior written
approval of Lessor, except the storage of usual supplies and inventory
to be used by Lessee in the conduct of his business, permit the Premises
to be used for gambling, make any unusual noises in the Building, permit
to be played musical instrument on the Premises, permit any radio to be
played, or television, recorded or wired music in such loud manner as to
disturb or annoy other tenants, or permit any unusual odors to be
produced on the Premises. Lessee shall not permit any portion of the
Premises to be occupied as an office for a public stenographer or
typewriter, or for the storage, manufacture, or sale of intoxicating
beverages, narcotics, tobacco in any form or as a xxxxxx or manicure
shop. Canvassing, soliciting and peddling in the Building and the
Office Building Area are prohibited and Lessee shall cooperate to
prevent the same. No bicycles, vehicles or animals of any kind shall be
brought into or kept in or about the Premises.
10. PLUMBING, ELECTRIC AND TELEPHONE WORK: Plumbing facilities shall not be
used for any purpose other than those for which they were constructed; and
no sweepings, rubbish, ashes, newspaper or other substances of any kind
shall be thrown into them. Waste and excessive or unusual amounts of
electricity or water is prohibited. When electric wiring of any kind is
introduced, it must be connected as directed by Lessor, and no stringing or
cutting of wires will be allowed, except by prior written consent of
Lessor, and shall be done by contractors approved by Lessor. The number and
locations of telephones, telegraph instruments, electrical appliances, call
boxes, etc. shall be subject to Lessor's approval.
11. MOVEMENT OF FURNITURE, FREIGHT OR BULKY MATTER: The carrying in or out of
freight, furniture or bulky matter of any description must take place
during such hours as Lessor may from time to time reasonably determine and
only after advance notice to the superintendent of the Building. The
persons employed by Lessee for such work must be reasonably acceptable to
the Lessor. Lessee may, subject to these provisions, move freight,
furniture, bulky matter, and other material into or out of the Premises on
Saturdays between the hours of 9:00 a.m. and 1:00 p.m., provided Lessee
pays additional costs, if any, incurred by Lessor for elevator operators or
security guards, and for any other expenses occasioned by such activity of
Lessee. If, at least three (3) days prior to such activity, Lessor requests
that Lessee deposit with Lessor, as security of Lessee's obligations to pay
such additional costs, a sum of which Lessor reasonably estimates to be the
amount of such additional cost, the Lessee shall deposit such sum with
Lessor as security of such cost. There shall not be used in the Building or
Premises, either by Lessee or by others in the delivery or receipt of
merchandise, any hand trucks except those equipped with rubber tires and
side guards, and no hand trucks will be allowed in the elevators without
the consent of the superintendent of the Building.
12. SAFES AND OTHER HEAVY EQUIPMENT: Lessor reserves the right to prescribe
the weight and position of all safes and other heavy equipment so as to
distribute properly the weight thereof and to prevent any unsafe
condition from arising.
13. ADVERTISING: Lessor shall have the right to prohibit any advertising by
Lessee which in Lessor's reasonable opinion tends to impair the reputation
of the Building or its desirability as a building for offices, and upon
written notice from Lessor, Lessee shall refrain from or discontinue such
advertising.
14. NON-OBSERVANCE OR VIOLATION OF RULES BY OTHER TENANTS: Lessor shall not
be responsible to Lessee for non-observance or violation of any of these
rules and regulations by any other tenant.
15. AFTER HOURS USE: Lessor reserves the right to exclude from the Building
between the hours of 6:00 p.m. and 8:00 a.m. and at all hours on
Saturdays, Sundays and Building Holidays, all persons who do not present
a pass to the Building signed by the Lessee. Each Lessee shall be
responsible for all persons for whom such a pass is issued and shall be
liable to the Lessor for the acts of such persons.
16. PARKING: Lessee and its employees shall park their cars only in those
portions of the parking area designated by Lessor.
Exhibit B - Page 2
17. Lessor hereby reserves to itself any and all rights not granted to Lessee
hereunder, including, but not limited to, the following rights which are
reserved to Lessor for its purposes in operating the Building:
a) the exclusive right to the use of the name of the Building for
all purposes, except that Lessee may use the name as its business
address and for no other purposes; and
b) the right to change the name or address of the Building, without
incurring any liability to Lessee for doing so; and
c) the right to install and maintain a sign on the exterior of the
Building; and
d) the exclusive right to use or dispose of the use of the roof of
the Building; and
e) the right to limit the space on the directory of the Building to
be allotted to Lessee; and
f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
18. The Lessee shall be responsible for initiating, maintaining and supervising
all health and safety precautions and/or programs required by Law in
connection with the Lessee's use and occupancy of the Premises.
19. The Lessee shall not store, introduce or otherwise permit any material
known to be hazardous within the Premises, other than normal office
cleaners and substances used in ordinary office machines. Any material
within the Premises which is determined to be hazardous shall be removed
and properly disposed of by the Lessee at the Lessee's sole expense.
-- END --
Exhibit B - Page 3
EXHIBIT C
LESSEE'S WORK AND ALTERATIONS
1. Lessee may make the alterations required for Lessee's use of the Premises
(hereinafter the "Work") after the Commencement Date subject to the
following:
a. Lessee, at its sole cost and expense, shall prepare and submit to
Lessor, for Lessor's and governmental approval, the following
descriptive information, detailed architectural and engineering
drawings and specifications (hereinafter the "Plans") for the Work.
The Plans shall be as complete and finished as required to
completely describe the Work and shall include, but not be limited
to, the following:
i. Demolition Plans depicting all existing conditions to be
removed, abandoned or cut patched.
ii. Architectural floor plans depicting partition locations and
types; door location, size, and hardware types.
iii. Structural plans, if required, depicting new structural
components and their connections to existing elements.
iv. Electrical plans depicting all new and existing electrical
wiring, devices, fixtures and equipment.
v. Mechanical plans depicting all new plumbing, piping, heating,
ventilating, air conditioning equipment, and duct work and its
connections to existing elements.
vi. Life Safety System plans depicting all new or altered alarm
system fixtures, devices, detectors and wiring within the
Premises and their connection to existing systems.
vii. Coordinated reflected ceiling plan showing ceiling systems and
materials and all of the above items and their proximity to
one another.
viii. Finish plans showing locations and types of all interior
finishes with a schedule of all proposed materials and
manufacturers.
The Plans shall provide for all systems and construction components
complying with the requirements of all governmental authorities and
insurance bodies having jurisdiction over the Building.
b. The Plans for the Work are subject to Lessor's prior written
approval which shall not be unreasonably withheld, provided,
however, that Lessor may in any event disapprove the Plans if
they are incomplete, inadequate or inconsistent with the terms of
the Lease or with the quality and architecture of the Building.
Lessor agrees to approve or disapprove the Plans within three (3)
business days of receipt of same (the "Lessor's Approval
Period"). If Lessor disapproves the Plans or any portion
thereof, Lessor shall promptly notify Lessee thereof and of the
revisions which Lessor reasonably requires in order to obtain
Lessor's approval Lessee shall, at its sole cost and expense,
submit the Plans, in such form as may be necessary, with the
appropriate governmental agencies for obtaining required permits
and certificates. Any changes required by any governmental
agency affecting the Work or the Plans shall be complied with by
Lessee in completing said Work at Lessee's sole cost and
expense. Lessee shall submit completed Plans to Lessor
simultaneously with Lessee's submission of said plans to the
local building department.
2. Lessor shall permit Lessee to solicit competitive pricing and select
its own general and/or individual subcontractors to perform the Work at
its sole cost
a. All general contractors shall be subject to Lessor's prior written
approval, which shall not be unreasonably withheld. Lessor hereby
approves Interior Resource Group as
Exhibit C - Page 1
Lessee's general contractor for the Work.
b. Lessee shall instruct all approved general contractors to
exclusively use Lessor's Base Building Sub-Contractors for heating,
ventilation, air conditioning, electrical, fire suppression and life
safety systems (hereinafter "Building Systems"). Other
subcontractors may be used only when specifically approved in
writing by Lessor, which approval shall not be unreasonably withheld
or delayed.
c. The Base Building Sub-Contractors and their respective trades are
set forth in Paragraph 6 below.
d. Lessee notifies Lessor in writing of Lessee's selection of
general and subcontractors.
e. All costs associated with the biding process soliciting competitive
pricing will be at the sole cost and expense of the Lessee.
f. Lessee's workmen and mechanics shall work in harmony and not
interfere with the labor employed by Lessor, Lessor's mechanics
or contractors or by any other occupant of the Building or their
mechanic or contractors, if any. If at any time Lessee and/or
its contractors cause disharmony or interference with the
operation of the Building, Lessor shall give forty-eight (48)
hours written notice to Lessee and within twenty-four (24) hours
Lessee shall resolve any dispute so that the tenor of the
construction process and the operation of the Building is
returned to that which existed prior to Lessor's notice. Such
entry by Lessee's contractors shall be deemed controlled by all
of the terms, covenants, provisions and conditions of the Lease.
g. Prior to the commencement of the Work, Lessee shall provide
Lessor with evidence of Lessee's contractors and sub-contractors
carrying such worker's compensation, general liability, personal
and property insurance required by law and in amounts no less
than the amounts set forth in Paragraph 7 herein. Lessor shall
not be liable in any way for any injury, loss or damage which may
occur to any portion of the Work, Lessee's decorations, or
installments so made, the same being solely at Lessee's risk.
h. In the event Lessor approves the use of subcontractors other than
Lessor's Base Building sub-contractors, all proposed Building System
work, including the preparation of the plans and specifications
identified herein, shall be approved by Lessor's engineers (the
"Engineering Review"), and any cost thereof shall be Lessee's
responsibility.
i. Lessor shall afford Lessee and its contractors the opportunity to
use the Building facilities at reasonable cost in order to enable
Lessee and its contractors to perform the Work, provided however,
that Lessee and its contractors shall remain responsible for the
scheduling and transportation of materials and equipment used in
the performance of such work. Lessee shall give Lessor adequate
prior notice with regard to the scheduling and transportation of
materials in and out of the Building. Lessor shall furnish, at
Lessor's expense, water, electricity, heat and ventilation during
the performance of the Work during regular construction trade
hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, exclusive
of trade holidays. Scavenger service shall be provided by Lessor
at Lessee's expense.
j. All plans, changes to the plans and work installed by Lessee and
its sub-contractors shall require inspections to be made by
Lessor's Base Building Sub-Contractors at Lessee's or Lessee's
contractors expense (the "Inspection Fees"). The Base Building
Sub-Contractors shall supply Lessor with certification that work
so preformed has been completed in accordance with the Plans
which have been previously approved by Lessor. If a Base
Building Sub-Contractor is selected and actually installs the
work, the Inspection Fees described in this paragraph with
respect to such work shall not be required.
k. Lessee shall be responsible for all cleaning and removal of debris
necessitated by the performance of the Work. If Lessee fails to
provide such cleaning and removal, the same may be performed by
Lessor on Lessee's behalf and Lessee will pay Lessor an amount equal
to the contractor's charge therefore, plus twenty percent (20%)
thereof.
Exhibit C - Page 2
l. Neither the outside appearance nor the strength of the Building
or of any of its structural parts shall be affected by the Work.
m. The proper functioning of any of the Building Systems shall not be
adversely affected or the usage of such systems by Lessee shall not
be materially increased above the projected usage of such systems
indicated by the current plans and specifications of the Building.
n. Lessee and its general and sub-contractors shall be bound by and
observe all of the conditions and covenants contained in the
Lease and this Exhibit X.
x. Xxxxxx shall designate a "Project Manager" as its representative in
the Building who shall be responsible for coordination and
supervision of the Work as it pertains to the daily operation of the
Building. The Project Manager and his subordinates shall be granted
access to the Premises at all times during the construction period.
p. Lessee agrees to pay Lessor three percent (3%) of the contract
awarded to Lessee's general contractor and/or any subcontractors to
reimburse Lessor for coordination, supervision, and utility costs.
3. Intentionally Omitted
4. Any part of the Work within the Premises shall become the property of
the Lessor upon installation. Furthermore, with respect to any
material and installation which is part of the Work, Lessee shall not
be entitled to remove, pledge or sell same unless otherwise agreed to
in writing by Lessor and Lessee. No refund, credit, or removal of said
items shall be permitted at the termination of the Lease. Items
installed that are not integrated in any such way with other common
building materials do not fall under this provision (Example: shelving,
furniture, trade fixtures).
5. Lessor shall provide a cash contribution of THREE HUNDRED SIXTY-NINE
THOUSAND ONE HUNDRED THIRTY-EIGHT AND 00/100 DOLLARS ($369,138.00)
("Lessor's Construction Allowance") for payment of the costs associated
with the completion of The Work. Lessor's Construction Allowance shall be
payable within fifteen (15) business days of Lessor's receipt of the
following:
a. Copy of the Certificate of Occupancy (temporary and permanent)
issued by the local construction official;
b. AIA Document G704, Certificate of substantial completion issued
and signed by Lessee's Architect;
c. Release of Lien statements from the general and all
sub-contractors associated with the Work; and
d. Lessee shall provide Lessor a set of reproducible drawings of the
Plans and a "CAD" file (in .DWG or .DXF format) of the "As-Built"
Plans.
6. The Base Building Sub-Contractors are:
FIRE SPRINKLER CONTRACTOR
"To be provided by Lessor upon request from Lessee."
ELECTRICAL CONTRACTOR
"To be provided by Lessor upon request from Lessee."
PLUMBING CONTRACTOR
"To be provided by Lessor upon request from Lessee."
HVAC CONTRACTOR
"To be provided by Lessor upon request from Lessee."
7. Lessee's Contractor's Insurance:
Exhibit C - Page 3
a. The Lessee shall require any and all contractors of the Lessee
performing work on or about the Premises to obtain and/or
maintain specific insurance coverage for events which could occur
while operations are being performed and which could occur after
the completion of the work. The insurance coverage of the
contractor shall be at least equal to the coverage required by
Article 30 of the Lease and the contractor shall name Lessor and,
if requested, Mortgagee as additional insureds on all policies of
liability insurance.
b. The contractor shall purchase and maintain such insurance as will
protect itself and Lessor and Lessee from claims set forth below
which may arise out of or result from its operations under the
contract and after contract completion with Lessee, whether such
operations are performed by the contractor or by any
subcontractor or by anyone directly or indirectly employed by any
of them or by anyone for whose acts any of them may be liable.
The insurance coverage shall include but not be limited to
protection for:
i. Claims under Workers or Workmens Compensation, Disability
Benefits, and other Employee Benefit Acts;
ii. Claims for damages because of bodily injury, occupational
sickness, disease or death of its employees;
iii. Claims for damages because of bodily injury, sickness,
disease, or death of any person other than its employees;
iv. Claims for damages insured by the usual personal injury
liability coverages which are sustained by (i) any person as a
result of an offense directly or indirectly related to the
employment of such person by the contractor, or (ii) by any
other person;
v. Claims for damages, other than to the work itself, because
of injury to or destruction of tangible property, including
loss of use resulting therefrom;
vi. Claims for damages because of bodily injury or death of any
person and/or property damage arising out of the ownership,
maintenance, or use of any motor vehicle; and
vii. Claims which include the foregoing, but not limited thereto,
which may occur while operations are being performed and
claims which may occur after operations are completed.
c. Lessee shall secure evidence of Lessee's contractor's insurance
coverage adequate to protect Lessor and Lessee.
d. The contract between the Lessee and its contractor shall require
that the Lessee's contractor hold the Lessor harmless in a form and
manner equal to the indemnity agreement in Article 33, "Indemnity"
of the Lease agreement.
e. Lessee shall cause to be executed a waiver of all rights their
contractors have or may have against Lessor and any Mortgagee
involved in the Premises in any way, for damages caused by fire or
other perils so insured.
f. If request by Lessor, Lessee shall obtain and furnish surety in a
form satisfactory to Lessor, covering the faithful performance of
the work and the payment of all obligations arising thereunder.
8. All sums payable by Lessee to Lessor in connection with this Exhibit C and
any other work to be performed by Lessor within the Premises and billable
to Lessee shall be deemed Additional Rent.
-END-
Exhibit C - Page 4
EXHIBIT C - 1
AIR CONDITIONING & HEATING DESIGN STANDARDS
The following are design standards for the building air-conditioning system for
cooling and heating in the air in the subject building:
1. During the normal heating season to maintain an average indoor dry bulb
temperature of not less than 70 degrees F (21 degrees C) or more than 76
degrees (24.4 degrees C) when the outdoor dry bulb temperature is lower
than 65 degrees F (18 degrees C) but not lower than 0 degrees F (-13
degrees C).
2. To maintain comfort cooling for an average indoor dry bulb temperature of
not more than 78 degrees F when the outside dry bulb temperature is 95
degrees F (24 degrees C).
3. During the intermediate seasons, when the outside dry bulb temperature is
below 55 degrees (13 degrees C), cooling will be provided by outside air
usage in conjunction with operating of return air, outside air and exhaust
air dampers.
4. To furnish not less than .10 cubic foot of fresh air per minute per square
foot of rentable area, and between .20 and 1.0 cubic feet of total air per
minute, per square foot of rentable occupied space.
5. Lessor will not be responsible for the failure of the air-conditioning
system if such failure results from (i) the occupancy of the Premises
with more than an average of one (1) person for each one hundred (100)
usable square feet of floor area (ii) the installation or operation by
Lessee of machines and appliances, the installed electrical load of
which when combined with the load of all lighting fixtures exceeds five
(5) xxxxx per square foot of floor area and in any manner exceeding the
aforementioned occupancy and electrical load criteria, or (iii)
rearrangement of partitioning after the initial preparation of the
Premises. If interference with normal operation of the air-conditioning
system in the Premises results, necessitating changes in the air
conditioning system servicing the Premises, such changes shall be made
by Lessor upon written notice to Lessee at Lessee's sole cost and
expense. Lessee agrees to lower and close window coverings when
necessary because of the sun's position whenever the air conditioning
system is in operation, and Lessee agrees at all times to cooperate
fully with Lessor and to abide by all the Rules and Regulations
attached hereto as well as reasonable rules and regulations which
Lessor may hereafter prescribe involving the air-conditioning system.
-- END --
Exhibit C-1 - Page 1
EXHIBIT D
CLEANING SERVICES
(Five Nights Per Week)
LESSEE'S PREMISES
1. Vacuum clean all carpeted areas.
2. Sweep and dust mop all non-carpeted areas. Wet mop whenever necessary.
3. All office furniture such as desks, chairs, files, filing cabinets, etc.
shall be dusted with a clean treated dust cloth whenever necessary and
only if such surfaces are clear of Lessee's personal property including
but not limited to plants.
4. Empty and wash ashtrays.
5. Empty wastepaper baskets and remove waste to the designated areas.
6. All vertical surfaces within arms reach shall be spot cleaned to remove
finger marks and smudges. Baseboard and window xxxxx are to be spot
cleaned whenever necessary.
7. All cleaning of cafeterias, vending areas, kitchen facilities are
excluded. Lessee may make necessary arrangements for same directly with
Lessor's cleaning maintenance company.
8. Cleaning hours shall be Monday through Friday between 5:30 p.m. and
11:00 p.m.
9. No cleaning service is provided on Saturday, Sunday and Building
Holidays.
10. Cartons or refuse in excess which can not be placed in wastebaskets
will not be removed. Lessee is responsible to place such unusual
refuse in trash dumpster.
11. Cleaning maintenance company will not remove nor clean tea, office cups or
similar containers. If such liquids are spilled in waste baskets, the
waste baskets will be emptied but not otherwise cleaned. Lessor will not
be responsible for any stained carpet caused from liquids leaking or
spilling from Lessee's wastepaper receptacles.
12. Upon completion of cleaning, all lights will be turned off and doors
locked leaving the Premises in an orderly condition.
13. Glass entrance doors will be cleaned nightly. Interior glass doors or
glass partitions are excluded. Lessee may make arrangements for same with
Lessor's cleaning maintenance company.
COMMON AREAS
1. Vacuum all carpeting in entrance lobbies, outdoor mats and all
corridors.
2. Wash glass doors in entrance lobby with a clean damp cloth and dry
towel.
3. Clean cigarette urns. Sweep and/or wet mop all resilient tile
flooring. Hard surface floors such as quarry tile, etc., shall be
cleaned nightly.
4. Wash, clean and disinfect water fountains.
5. Clean all elevators and stairwells.
6. Lavatories -- Men and Women.
a. Floors in all lavatories shall be wet mopped each evening with a
germicidal detergent to ensure a clean and germ free surface.
b. Wash and polish all mirrors, shelves, bright work including any
piping and toilet seats.
c. Wash and disinfect wash basins and sinks using a germicidal
detergent.
d. Wash and disinfect toilet bowls and urinals.
e. Keep lavatory partitions, tiled walls, dispensers and receptacles in a
clean condition using a germicidal detergent when necessary.
f. Empty and sanitize sanitary disposal receptacles.
g. Fill toilet tissue holders, towel dispensers and soap dispensers.
Refills to be supplied by Lessor.
7. Clean all air ventilation grill work in ceilings.
Exhibit D - Page 1
EXHIBIT E
BUILDING HOLIDAYS
BUILDING CLOSED
* NEW YEAR'S DAY *
* MEMORIAL DAY *
* INDEPENDENCE DAY *
* LABOR DAY *
* THANKSGIVING DAY *
* CHRISTMAS DAY *
-- END --
Exhibit E - Page 1
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
TO: MORTGAGEE and/or its affiliates and/or whom else it may concern:
1. The undersigned is the Lessee (Tenant) under that certain Lease
dated by and between as Lessor
(Landlord) and as Lessee, covering those certain
premises commonly known and designated as r.s.f. on the
( ) floor of ,NJ.
2. The Lease has not been modified, changed, altered or amended in any
respect (except as indicated following this sentence) and is the only
Lease or agreement between the undersigned and the Lessor affecting said
premises. If none, state "none".
3. The undersigned has made no agreements with Lessor or its agents or
employees concerning free rent, partial rent, rebate of rental payments
or any other type of rental concession (except as indicated following
this sentence). If none, state "none".
4. The undersigned has accepted and now occupies the premises, and is and
has been open for business since , 200_. The Lease term
began , 2002, and the rent for said premises has been paid
to and including , 2002 in conformity with this
Lease agreement. No rent has been prepaid for more than two (2)
months. The fixed minimum rent being paid as above is $ __________
per month. If Lessee is not in full possession, whether Lessee has
assigned the Lease, sublet all or any portion of the Premises, or
otherwise transferred any interest in the Lease or the Premises,
Lessee agrees to provide a copy of such assignment, sublease, or
transfer upon request.
5. The Lease is not in default and is in full force and effect. As of
the date hereof, the undersigned is entitled to no credit, no free
rent and no offset or deduction in rent.
6. All alterations, improvements, additions, build-outs, or construction
required to be performed under the Lease have been completed in
accordance with the terms of the Workletter attached to Lease as Exhibit
C.
7. The Lease does not contain and the undersigned doesn't have any
outstanding options or rights of first refusal to purchase the premises
or any part thereof or the real property of which the premises are a
part.
8. No actions, whether voluntary or otherwise, are pending against the
undersigned under the bankruptcy laws of the United States or any
State thereof.
9. There are currently no valid defenses, counterclaims, off-sets, credits,
deductions in rent, or claims against the enforcement of any of the
agreements, terms, or conditions of the Lease.
10. The undersigned acknowledges that all the interest of Lessor in and to
the above-mentioned Lease is being duly assigned to MORTGAGEE or one
of its affiliates hereunder and that pursuant to the terms thereof
(i) all rental payments under said Lease shall continue to be paid to
Lessor in accordance with the terms of the Lease unless and until you
are otherwise notified in writing by MORTGAGEE, or its successor or
assigns and (ii) no modification, revision, or cancellation of the
Lease or amendments thereto shall be effective unless a written
consent thereto of such mortgagee is first obtained.
11. The undersigned is authorized to execute this Tenant Estoppel
Certificate on behalf of the Lessee.
Dated this ________ day of __________________ , 2002
LESSEE:
___________________________________________________
Name:
Title:
Exhibit F - Page 1
EXHIBIT G
RENT COMMENCEMENT DATE AGREEMENT
1.0 PARTIES
THIS AGREEMENT made the _________day of ________, 2002 is by and between
________________ (hereinafter "Lessor") whose address is c/o Xxxx-Xxxx
Realty Corporation, 00 Xxxxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 and
_________________________ (hereinafter "Lessee") whose address is
________________________________________.
2.0 STATEMENT OF FACTS
2.1 Lessor and Lessee entered into a Lease dated ____________, 2002
(hereinafter "Lease") setting forth the terms of occupancy by Lessee
of approximately ________ rentable square feet on the _____ (___)
floor (hereinafter "Premises") at _____________________________
(hereinafter "Building"); and
2.2 The Term of the Lease is ten (10) years with the Rent Commencement
Date being defined in the Preamble to the Lease as being subject to
certain alternatives; and
2.3 It has been determined that ___________, 2002 is the Rent
Commencement Date of the Lease.
3.0 STATEMENT OF TERMS
NOW, THEREFORE, in consideration of the Premises and the covenants
hereinafter set forth, it is agreed:
3.1 The Rent Commencement Date of the Lease is ___________ , and the
Expiration Date thereof is _____________ , and the Lease Preamble
Articles 6 shall be deemed modified accordingly.
3.2 This Agreement is executed by the parties hereto for the purpose of
providing a record of the Rent Commencement Date and Expiration
Dates of the Lease.
EXCEPT as modified herein, the Lease covering the Premises shall remain in
full force and effect as if the same were set forth in full herein and Lessor
and Lessee hereby ratify and confirm all the terms and conditions thereof.
THIS AGREEMENT shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives, successors and
permitted assigns.
EACH PARTY AGREES that it will not raise or assert as a defense to any
obligation under the Lease or this Agreement or make any claim that the Lease or
this Agreement is invalid or unenforceable due to any failure of this document
to comply with ministerial requirements including, but not limited to,
requirements for corporate seals, attestations, witnesses, notarizations, or
other similar requirements, and each party hereby waives the right to assert any
such defense or make any claim of invalidity or unenforceability due to any of
the foregoing.
IN WITNESS THEREOF, Lessor and Lessee have hereunto set their hands and
seals the date and year first above written and acknowledge one to the other
they possess the requisite authority to enter into this transaction and to sign
this Agreement.
LESSOR LESSEE
By: ________________________________ By: _________________________________
Xxxxxxx X. Xxxxxx Name:
Vice President - Leasing Title:
Exhibit G - Page 1
EXHIBIT H
LETTER OF CREDIT
[DATE]
TO:
[Name of Beneficiary]
[Address]
Re: Irrevocable Letter of Credit
Gentlemen:
By order of our client, _________________________, we hereby establish
our irrevocable Letter of Credit No. ______ in your favor for a sum or sums not
to exceed $__________________- (_________________U.S. Dollars) in the aggregate,
effective immediately.
This Letter of Credit shall be payable in immediately available funds
in U.S. Dollars. Funds under this credit are payable to you upon your
presentation to us a sight draft drawn on us in the form annexed hereto. All
drafts must be marked: "Drawn under Letter of Credit No. ____ of [Name of
Issuing Bank].
This Letter of Credit shall expire twelve (12) months from the date
hereof; but is automatically extendable, so that this Letter of Credit shall be
deemed automatically extended, from time to time, without amendment, for one
year from the expiration date hereof and from each and every future expiration
date, unless at least sixty (60) days prior to any expiration date we shall
notify you by registered mail that we elect not to consider this Letter of
Credit renewed for any such additional period. The final expiration date hereof
shall be no earlier than [fill in suitable date after expiration of lease].
This Letter of Credit is transferable and may be transferred one or more
times. However, no transfer shall be effective unless advice of such transfer is
received by us in our standard form.
We hereby agree to honor each draft drawn under and in compliance with
this Letter of Credit, if duly presented at our offices at
___________________________or at any other of our offices.
This Letter of Credit is subject to the International Standby Practices
1998, International Chamber of Commerce Publication No. 590.
[Name of Bank]
By:
[Annex Bank's Form of Sight Draft]
Exhibit H - Page 1
EXHIBIT I
EXCLUSIONS FROM OPERATING COSTS
(1) Any ground lease rental;
(2) Costs of items considered capital repairs, replacements, improvements
and equipment under generally accepted accounting principles consistently
applied or otherwise, except as set forth below ("Capital Items");
(3) Rentals for items (except when needed in connection with normal
repairs and maintenance of permanent systems) which if purchased, rather than
rented, would constitute a Capital Item which is specifically excluded in (2)
above (excluding, however, equipment not affixed to the Building which is used
in providing janitorial or similar services);
(4) Costs incurred by Lessor for the repair of damage to the Building to
the extent that Lessor is or should be reimbursed by insurance proceeds,
regardless of whether such repairs are covered by insurance;
(5) Costs, including permit, license and inspection costs, incurred with
respect to the installation of tenant or other occupants' improvements in the
Building or incurred in renovating or otherwise improving, decorating, painting
or redecorating vacant space for tenants or other occupants of the Building;
(6) Depreciation, amortization, and interest payments, except as provided
herein and except on materials, tools, supplies, and vendor-type equipment
purchased by Lessor to enable Lessor to supply services Lessor might otherwise
contract for with a third party when such depreciation, amortization and
interest payments would otherwise have been included in the charge for such
third party's services, all as determined in accordance with generally accepted
accounting principles, consistently applied, and when depreciation or
amortization is permitted or required, the item shall be amortized over its
reasonably anticipated useful life;
(7) Marketing costs, including without limitation, leasing commissions,
attorneys' fees in connection with the negotiation and preparation of letters,
deal memos, letters of intent, leases, subleases and/or assignments, space
planning costs, and other costs and expenses incurred in connection with lease,
sublease and/or assignment negotiations and transactions with Lessee or present
or prospective tenants or other occupants of the Building;
(8) Expenses for services or other benefits that are not offered to Lessee
or for which Lessee is charged for directly but that are provided to another
tenant or occupant of the Building;
(9) Costs incurred by Lessor because of the violation by Lessor or
any tenant of the terms and conditions of any lease of space in the Building;
(10) Overhead and profit increment paid to Lessor or to subsidiaries or
affiliates of Lessor for goods and/or services in or to the Building to the
extent the same exceeds the costs of such goods and/or services rendered by
unaffiliated third panics on a competitive basis;
(11) Interest, principal, points and fees on debts or amortization on any
mortgage or mortgages or any other debt instrument encumbering the Building or
the Land;
(12) Lessor's general corporate overhead and general and
administrative expenses;
(13) Any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Lessor or in the parking garage of the
Building or wherever Lessee is granted its parking privileges and/or all fees
paid to any parking facility operator;
(14) Rentals and other related expenses incurred in leasing HVAC
systems, elevators or
Exhibit I - Page 1
other equipment ordinarily considered to be Capital Items, except for (a)
expenses in connection with making repairs on or keeping such Building systems
in operation while repairs are being made and (b) costs of equipment not affixed
to the Building which is used in providing janitorial or similar services;
(15) Advertising and promotional expenditures, and costs of signs in
or on the Building identifying the owner of the Building;
(15A) The cost of any electrical power used by any tenant in the Building
in excess of the Building-standard amount, or electric power costs for which any
tenant directly contracts with the local public service company or for which any
tenant is separately metered or submetered and pays Lessor directly;
(16) Services and utilities provided, taxes attributable to, and costs
incurred in connection with the operation of the retail and restaurant
operations in the Building, except to the extent the square footage of such
operations are included in the rentable square feet of the Building and do not
exceed the services, utility and tax costs that would have been incurred had the
retail and/or restaurant space been used for general office purposes;
(17) Costs incurred in connection with upgrading the Building to comply
with life, fire and safety codes, ordinances, statutes or other laws in effect
before the Commencement Date, including, without limitation, the ADA, including
penalties or damages incurred because of that non-compliance;
(18) Tax penalties incurred as a result of Lessor's failure to make
payments and/or to file any tax or informational returns when due;
(19) Costs for which Lessor has been compensated by a management fee, and
any management fees in excess of those management fees which are normally and
customarily charged by landlords of comparable buildings;
(19A) Costs arising from the negligence or fault of other tenants or
Lessor or its agents, or any vendors, contractors, or providers of materials or
services selected, hired or engaged by Lessor or its agents including, without
limitation, the selection of Building materials;
(20) Notwithstanding any contrary provision of the Lease, including,
without limitation, any provision relating to capital expenditures, any and all
costs arising from the presence of hazardous materials or substances (as defined
by applicable laws in effect on the date this Lease is executed) in or about the
Premises, the Building or the Office Building Area including, without
limitation, hazardous substances in the ground water or soil, not placed in the
Premises, the Building or the Land by Lessee;
(21) Costs arising from Lessor's charitable or political
contributions;
(22) Costs arising from defects in the base, shell, or core of the
Building or improvements installed by Lessor or repair thereof;
(23) Costs for the acquisition of (as contrasted with the maintenance
of) sculpture, paintings, or other objects of art;
(24) Costs (including in connection therewith all attorneys' fees and
costs of settlement judgments and payments in lieu thereof) arising from claims,
disputes or potential disputes in connection with potential or actual claims
litigation or arbitrations pertaining to Lessor and/or the Building and/or the
Office Building Area;
(25) Costs associated with the operation of the business of the
partnership or entity which constitutes Lessor as the same are distinguished
from the costs of operation of the Building, including partnership accounting
and legal matters, costs of defending any lawsuits with or claims by any
mortgagee (except as the actions of Lessee may be in issue), costs of selling,
syndicating, financing, mortgaging or hypothecating any of Lessor's interest in
the Building, costs of any disputes between Lessor and its employees (if any)
not engaged in Building operation, disputes of Lessor with
Exhibit I - Page 2
Building management, or outside fees paid in connection with disputes with other
tenants;
(26) Costs of any "tap fees" or any sewer or water connection fees for the
benefit of any particular tenant in the Building;
(27) Costs incurred in connection with any environmental clean-up,
response action, or remediation on, in, under or about the Premises or the
Building or the Office Building Area, including but not limited to, costs and
expenses associated with the defense, administration, settlement, monitoring or
management thereof;
(28) Any expenses incurred by Lessor for use of any portions of the
Building to accommodate events including, but not limited to shows, promotions,
kiosks, displays, filming, photography, private events or parties, ceremonies,
and advertising beyond the normal expenses otherwise attributable to providing
Building services, such as lighting and HVAC to such public portions of the
Building in normal Building operations during standard Building hours of
operation;
(29) Any entertainment, dining, or travel expenses for any purpose;
(30) Any flowers, gifts, balloons, etc. provided to any entity whatsoever,
to include, but not limited to, Lessee, other tenants, employees, vendors,
contractors, prospective tenants, and agents;
(31) Any "validated" parking for any entity;
(32) Any "finders' fees," brokerage commissions, job placement costs, or
job advertising cost;
(33) Any "above-standard" cleaning, including, but not limited to
construction cleanup or special cleanings associated with parties/events and
specific tenant requirements in excess of service provided to Lessee, including
related trash collection, removal, hauling and dumping;
(34) The cost of any magazine, newspaper, trade or other subscriptions;
(35) The cost of any training or incentive programs, other than for tenant
life safety information services;
(36) The cost of any "tenant relations" parties, events or promotion not
consented to by an authorized representative of Lessee in writing;
(37) "In-house" legal and/or accounting fees; and
(38) Reserves for bad debts or for future improvements, repairs,
additions, etc.; and
It is understood that Operating Costs shall be reduced by all cash
discounts, trade discounts, quantity discounts, rebates, or other amounts
received by Lessor or Lessor's managing agent in the purchase of any goods,
utilities, or services in connection with the operation of the Building. Lessor
shall make payments for goods, utilities, or services in a timely manner to
obtain the maximum possible discount. If Capital Items which are customarily
purchased by landlords of comparable buildings are leased by Lessor, rather than
purchased, the decision by Lessor to lease the item in question shall not serve
to increase Lessee's Percentage of Operating Costs beyond that which would have
applied had the item in question been purchased.
If any facilities, services, or utilities used for the Building are
provided from another building owned or operated by Lessor or vice versa, the
costs incurred by Lessor for those facilities, services, or utilities shall be
allocated to Operating Costs by Lessor on a reasonably equitable basis.
If any repair, replacement or improvement within the definition of
Operating Costs is capitalized under generally accepted accounting principles,
then (A) the cost of any such repair, replacement or improvement shall only be
included in Operating Costs if such repair, replacement or improvement (i) is
necessary to comply with any governmental or quasi-governmental law, statute,
Exhibit I - Page 3
ordinance, rule, order, requirements or regulation, which is enacted or
promulgated after the date hereof, (ii) is reasonably intended to reduce
Operating Costs or (iii) constitutes a replacement which in Lessor's reasonable
judgment is economically prudent to make in lieu of repairs, (B) the cost
thereof shall be amortized on a straight line basis over the useful life of such
repair, the amount so amortized attributable to such repair, replacement or
improvement and (C) there shall be included in Operating Costs in each Lease
Year for such portion of the amortization period which occurs during the Term,
provided, however, that all amounts thereof included in Operating Costs in any
Lease Year subsequent to the year paid shall have added thereto interest from
the date Lessor incurred such cost. For amortization purposes, applicable
interest shall be two (2) percentage points in excess of the prime rate charged
by Chase Manhattan Bank, or its successor, at the time of expenditure.
Exhibit I - Page 4
