LEASE AND LEASE AGREEMENT
Between
CARNEGIE 214 ASSOCIATES LIMITED PARTNERSHIP
The Landlord
And
PALATIN TECHNOLOGIES, INC.
The Tenant
For Leased Premises In
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxxxx
MAY 6, 1997
Prepared by:
Xxxx X. Xxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
(000) 000-0000
TABLE OF CONTENTS
Article Page
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1. Definitions 1
2. Lease of the Leased Premises 1
3. Rent 1
4. Term 2
5. Preparation of the Leased Premises 3
6. Options 3
7. Use and Occupancy 4
8. Utilities, Services, Maintenance and Repairs 6
9. Allocation of the Expense of Utilities, Services, Maintenance, Repairs and Taxes 7
10. Computation and Payment of Allocated Expenses of Utilities, Services, Maintenance, 8
Repairs, Taxes and Capital Expenditures
11. Leasehold Improvements, Fixtures and Trade Fixtures 13
12. Alterations, Improvements and Other Modifications by the Tenant 14
13. Landlord's Rights of Entry and Access 15
14. Liabilities and Insurance Obligations 16
15. Casualty Damage to Building or Leased Premises 18
16. Condemnation 19
17. Assignment or Subletting by Tenant 20
18. Signs, Displays and Advertising 22
19. Quiet Enjoyment 23
20. Relocation 23
21. Surrender 23
22. Events of Xxxxxxx 00
00. Rights and Remedies 25
24. Termination of the Xxxx 00
00. Mortgage and Underlying Lease Priority 29
26. Transfer by Landlord 29
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27. Indemnification 30
28. Parties' Liability 31
29. Security Deposit 33
30. Representations 33
31. Reservation in Favor of Tenant 34
32. Tenant's Certificates and Mortgagee Notice Requirements 34
33. Waiver of Jury Trial and Arbitration 36
34. Severability 36
35. Notices 36
36. Captions 36
37. Counterparts 36
38. Applicable Law 37
39. Exclusive Benefit 37
40. Successors 37
41. Amendments 37
42. Waiver 37
43. Course of Performance 37
TABLE OF EXHIBITS
Exhibit
Leased Premises Floor Space Diagram A
Property Description B
Work Letter C
Building Rules and Regulations D
Definitions and Index of Definitions E
Form of Estoppel Certificate F
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LEASE AND LEASE AGREEMENT, dated May 6, 1997, between CARNEGIE 214 ASSOCIATES
LIMITED PARTNERSHIP, a New Jersey limited partnership, with offices at Suite
101, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000 (the "Landlord"), and
PALATIN TECHNOLOGIES, INC., a Delaware corporation, with an office at 000
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000 (the "Tenant").
Subject to all the terms and conditions set forth below, the Landlord and the
Tenant hereby agree as follows:
1. Definitions.
Certain terms and phrases used in this Agreement (generally those whose first
letters are capitalized) are defined in Exhibit E attached hereto and, as used
in this Agreement, they shall have the respective meanings assigned or referred
to in that exhibit.
2. Lease of the Leased Premises.
2.1. The Landlord shall, and hereby does, lease to the Tenant, and the
Tenant shall, and hereby does, accept and lease from the Landlord, the
Leased Premises during the Term. The Leased Premises consist of 3,970
square feet of gross rentable floor space on the first floor of 214
Carnegie Center, as more fully described in the definition of Leased
Premises set forth in Exhibit E attached hereto.
2.2. The Landlord shall, and hereby does, grant to the Tenant, and the
Tenant shall, and hereby does, accept from the Landlord, the
non-exclusive right to use the Common Facilities during the Term for
itself, its employees, other agents and Guests in common with the
Landlord, any tenants of Other Leased Premises, any of their respective
employees, other agents and guests and such other persons as the
Landlord may, in the Landlord's sole discretion, determine from time to
time.
3. Rent.
3.1. The Tenant shall punctually pay the Rent for the Leased Premises for
the Term to the Landlord in the amounts and at the times set forth
below, without xxxx or other demand and without any offset, deduction
or, except as may be otherwise specifically set forth in this
Agreement, abatement whatsoever.
3.2. The Basic Rent for the Leased Premises during the Initial Term shall be
at the rate per year set forth below:
Years Annual Rate Monthly Rate
----- ------ ---- ------- ----
1 through 5 $97,265.04 $8,105.42
The annual rate of Basic Rent for the Leased Premises during any Renewal Term
shall be calculated as set forth in subsection 6.3 of this Agreement for the
respective Renewal Term.
3.3. The Tenant shall punctually pay the applicable Basic Rent in equal
monthly installments in advance on the first day of each month during
the Term, with the exception of Basic Rent for the first full calendar
month of the Initial Term and for any period of less than a full
calendar
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month at the beginning of the Term. The Tenant shall pay the Basic Rent
for the first full calendar month of the Initial Term upon execution
and delivery of this Agreement. The Tenant shall punctually pay the
Basic Rent for a period of less than a full calendar month at the
beginning of the Term on the Commencement Date.
3.4. The Basic Rent and the Additional Rent for any period of less than a
full calendar month shall be prorated. In the event that any
installment of Basic Rent cannot be calculated by the time payment is
due, such portion as is then known or calculable shall be then due and
payable; and the balance shall be due upon the Landlord's giving notice
to the Tenant of the amount of the balance due.
3.5. The Additional Rent for the Leased Premises during the Term shall be
promptly paid by the Tenant in the respective amounts and at the
respective times set forth in this Agreement.
3.6. That portion of any amount of Rent or other amount due under this
Agreement which is not paid on the day it is first due shall incur a
late charge equal to the sum of: (i) five percent of that portion of any
amount of Rent or other amount due under this Agreement which is not
paid on the day it is first due and (ii) interest on that portion of any
amount of Rent or other amount due under this Agreement which is not
paid on the day it is first due at the Base Rate(s) in effect from time
to time plus two additional percentage points from the day such portion
is first due through the day of receipt thereof by the Landlord. Any
such late charge due from the Tenant shall be due immediately.
4. Term.
4.1. The Initial Term shall commence on the Commencement Date and shall
continue for five years from the beginning of the Initial Year, unless
sooner terminated in accordance with section 24 of this Agreement. The
Term shall commence on the Commencement Date and shall continue until
the later of the conclusion of the Initial Term or the conclusion of
any Renewal Term, unless sooner terminated in accordance with section
24 of this Agreement.
4.2. Unless one or more of the conditions contemplated by subsection 4.3 of
this Agreement occurs, the Commencement Date shall be the later of:
4.2.1. the Target Date; or
4.2.2. the date the Landlord can deliver actual and exclusive
possession of the Leased Premises to the Tenant in accordance
with the provisions of Article 5 of this Agreement.
4.3. In the event one or more of the conditions contemplated by this
subsection 4.3 of the Agreement occurs, notwithstanding anything to the
contrary set forth in subsection 4.2 of this Agreement, the
Commencement Date shall be the earliest date the Tenant takes
possession of, occupies or moves any furniture, furnishings, equipment
(with the exception of equipment required for telecommunications
hook-ups), supplies or other possessions into, the Leased Premises or
any portion thereof earlier than the date otherwise determined in
accordance with subsection 4.2 of this Agreement.
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4.4. Once it is ascertained in accordance with subsections 4.2 and 4.3 of
this Agreement, the Landlord shall give prompt notice of the
Commencement Date to the Tenant; and if the Tenant does not object
thereto by notice given to the Landlord within 10 days of the
Landlord's notice, the date set forth in the Landlord's notice shall
thereafter be conclusively presumed to be the Commencement Date.
5. Preparation of the Leased Premises.
The Landlord shall deliver actual and exclusive possession of the Leased
Premises to the Tenant in an "AS-IS" condition, free of rubbish and debris.
6. Options.
6.1. If, prior to the respective date of exercise thereof, (a)(i) no Event
of Default shall have occurred or (ii) if an Event of Default shall have
occurred, the Tenant shall have previously cured it in full and the
Landlord shall have waived it and (b) there shall not have been a
History of Recurring Events of Default, the Tenant shall have one
option, exercisable exclusively at the time and in the manner set forth
below in subsection 6.2 of this Agreement, to extend the Term for one
additional period of five years' duration. If the option is properly
exercised, the period to which it relates shall commence upon the end of
the Expiring Term. The option is an "Option to Renew."
6.2. In the event the Tenant is interested in exercising the Option to
Renew, the Tenant shall give timely notice of the Tenant's interest to
the Landlord no earlier than nine, and no later than eight, months prior
to the end of the Expiring Term. Within four weeks of the giving of such
notice, the Landlord shall give notice to the Tenant of the Market
Rental Rate in effect eight months prior to end of the Expiring Term. In
the event the Tenant desires to exercise the Option to Renew, the Tenant
shall do so exclusively by giving timely notice thereof to the Landlord
no earlier than seven, and no later than six, months prior to the end of
the Expiring Term, and indicating in that notice whether or not the
Market Rental Rate in effect eight months prior to the end of the
Expiring Term is acceptable. In the event the Tenant fails timely to
notify the Landlord of its interest in exercising the Option to Renew or
timely to exercise the Option to Renew, that Option to Renew shall
thereupon expire.
6.3. The Basic Rent for the Leased Premises during the Renewal Term shall be
the Market Rental Rate, as set forth in the Landlord's notice to the
Tenant of the Market Rental Rate, unless the Tenant, in the Tenant's
notice contemplated by the third sentence of subsection 6.2 of this
Agreement affirmatively indicates that the Market Rental Rate for the
Renewal Term is not acceptable, in which case the Basic Rent for the
Leased Premises during the Renewal Term shall be the greater of:
6.3.1. that amount which is the product of the annual rate of Basic
Rent in effect during the last 12 months of the Expiring Term
multiplied by the sum of the following two amounts: (a) one
and (b) the amount obtained by multiplying five-hundredths
(.05) by the number of full calendar months in the Expiring
Term and dividing the result by 12; or
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6.3.2. that amount which bears the same ratio to the annual rate of
Basic Rent in effect during the Expiring Term as the Index for
the ninth month before the end of the Expiring Term bears to
the Index for the ninth month before the first full calendar
month at the beginning of the Expiring Term.
6.4. In the event the Tenant assigns this Agreement or sublets, or licenses
the use or occupancy of, the Leased Premises or any portions thereof in
accordance with section 17 of this Agreement or otherwise, or attempts
to do so:
6.4.1. any Option to Renew which the Tenant has theretofore properly
exercised with respect to a Renewal Term that has not yet
actually commenced shall be rescinded, if the Landlord so
elects by notice to the Tenant, to the same extent as if it
had not been exercised at all; and
6.4.2. any Option to Renew or any other type of option or optional
right exercisable by the Tenant not theretofore timely and
otherwise properly exercised by the Tenant shall thereupon
expire.
7. Use and Occupancy.
7.1. The Tenant shall continuously occupy and use the Leased Premises during
the Term exclusively as an office for its business of administering the
off-site manufacture and sale of its medical supplies.
7.2. In connection with the Tenant's use and occupancy of the Leased
Premises and use of the Common Facilities, the Tenant shall observe,
and the Tenant shall cause the Tenant's employees, other agents and
Guests to observe, each of the following:
7.2.1. the Tenant shall not do, or permit or suffer the doing of,
anything which might have the effect of creating not
insignificantly increased risk of, or damage from, fire,
explosion or other casualty;
7.2.2. the Tenant shall not do, or permit or suffer the doing of,
anything which would have the effect of (a) increasing any
premium for any liability, property, casualty or excess
coverage insurance policy otherwise payable by the Landlord or
any tenant of Other Leased Premises or (b) making any such
types or amounts of insurance coverage unavailable or less
available to the Landlord or any tenant of Other Leased
Premises;
7.2.3. to the extent they are not inconsistent with this Agreement,
the Tenant and the Tenant's employees, other agents and Guests
shall comply with the Building Rules and Regulations attached
hereto as Exhibit D, and with any changes made therein by the
Landlord if, with respect to any such changes, the Landlord
shall have given notice of the particular changes to the
Tenant and such changes shall not materially adversely affect
the conduct of the Tenant's business in the Leased Premises;
7.2.4. the Tenant and the Tenant's employees, other agents and Guests
shall not create, permit or continue any Nuisance in or around
the Carnegie Center Complex, the Leased Premises, the Other
Leased Premises, the Building, the Common Facilities and the
Property;
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7.2.5. The Tenant and the Tenant's employees, other agents and Guests
shall not permit the Leased Premises to be regularly occupied
by more than one individual per 200 square feet of usable
floor space of the Leased Premises;
7.2.6. the Tenant and the Tenant's employees, other agents and Guests
shall comply with all Federal, state and local statutes,
ordinances, rules, regulations and orders as they pertain to
the Tenant's use and occupancy of the Leased Premises, to the
conduct of the Tenant's business and to the use of the Common
Facilities, except that this subsection shall not require the
Tenant to make any structural changes that may be required
thereby that are generally applicable to the Building as a
whole;
7.2.7. the Tenant and the Tenant's employees, other agents and Guests
shall comply with the requirements of the Board of Fire
Underwriters (or successor organization) and of any insurance
carriers providing liability, property, casualty or excess
insurance coverage regarding the Property, the Building, the
Common Facilities or any portions thereof, any other
improvements on the Property and the Carnegie Center Complex,
except that this subsection shall not require the Tenant to
make any structural changes that may be required thereby that
are generally applicable to the Building as a whole;
7.2.8. the Tenant and the Tenant's employees, other agents and
Guests shall not bring or discharge any substance (solid
liquid or gaseous), or conduct any activity, in or on the
Carnegie Center Complex, the Property, the Building, the
Common Facilities or the Leased Premises that shall have
been identified by the scientific community or by any
Federal, state or local statute (including, without limiting
the generality of the foregoing, the Spill Compensation and
Control Act (58 N.J.S.A. sec.23.11 et seq.) and the
Industrial Site Recovery Act (13 N.J.S.A. sec.1 K-6 et
seq.), as they may be amended), ordinance, rule, regulation
or order as toxic or hazardous to health or to the
environment;
7.2.9. the Tenant and the Tenant's employees, other agents and
Guests shall not draw electricity in the Leased Premises in
excess of the rated capacity of the electrical conductors
and safety devices including, without limiting the
generality of the foregoing, circuit breakers and fuses, by
which electricity is distributed to and throughout the
Leased Premises and, without the prior written consent of
the Landlord in each instance, shall not connect any
fixtures, appliances or equipment to the electrical
distribution system serving the Building and the Leased
Premises other than typical professional office equipment
such as minicomputers, microcomputers, typewriters, copiers,
telephone systems, coffee machines and table top microwave
ovens, none of which, considered individually and in the
aggregate, overall and per fused or circuit breaker
protected circuit, shall exceed the above limits;
7.2.10. on a timely basis the Tenant shall pay directly and
promptly to the respective taxing authorities any taxes
(other than Taxes) charged, assessed or levied exclusively
on the Leased Premises or arising exclusively from the
Tenant's use and occupancy of the Leased Premises; and
7.2.11. the Tenant shall not initiate any appeal or contest of
any assessment or collection of Taxes for any period
without, in each instance, the prior written consent of the
Landlord
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which, without being deemed unreasonable, the Landlord may
withhold if the Building was not 90% occupied by paying tenants
throughout that period or if the Tenant is not joined by tenants
of Other Leased Premises that leased throughout that period, and
that are then leasing, at least 80% of all Other Leased
Premises, determined by their gross rentable floor space.
7.3. Tenant agrees to prepare, furnish and enforce a traffic management plan
(the "Traffic Plan") that the Landlord can submit in connection with
site plan approval or other governmental requirements. The Traffic Plan
shall include, but not be limited to, such matters as staggered work
schedules and van pooling. Landlord agrees that the Regular Business
Hours shall be extended, if necessary, to take into account any
staggered work schedule required under the Traffic Plan.
8. Utilities, Services, Maintenance and Repairs.
8.1. The Landlord shall provide or arrange for the provision of:
8.1.1. such maintenance and repair of the Building (except the Leased
Premises and Other Leased Premises); the Common Facilities;
and the heating, ventilation and air conditioning systems, any
plumbing systems and the electrical systems in the Building,
the Common Facilities, the Leased Premises and Other Leased
Premises as is customarily provided for first class office
buildings in the immediate area;
8.1.2. such garbage removal from the Building and the Common
Facilities and such janitorial services for the Building, the
Leased Premises and Other Leased Premises as is customarily
provided for first class office buildings in the immediate
area;
8.1.3. water to the Building and, if the appropriate plumbing has
been installed therein, the Leased Premises and Other Leased
Premises;
8.1.4. sewage disposal for the Building;
8.1.5. passenger elevator service for the Building;
8.1.6. snow clearance from, and sweeping of, Parking Facilities and
driveways which are part of the Property; and
8.1.7. the maintenance of landscaping which is part of the Property.
8.2. The Landlord shall provide or arrange for the provision of:
8.2.1. such maintenance and repair of the Leased Premises, except for
refinishing walls and wall treatments, base, ceilings, floor
treatments and doors in general from time to time or for
gouges, spots, marks, damage or defacement caused by anyone
other than the Landlord, its employees and other agents, and
except for the Tenant's furniture, furnishings, equipment and
other property;
8.2.2. such maintenance and repair of the Other Leased Premises,
except for refinishing walls and wall treatments, base,
ceilings, floor treatments and doors in general from time to
time or for gouges, spots, marks, damage or defacement caused
by anyone other than the
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Landlord, its employees and other agents, and except for the
respective tenants' furniture, furnishings, equipment and
other property;
8.2.3. the electricity required for the operation of the Building,
the Property and the Common Facilities during Regular Business
Hours and, on a reduced service basis, during other than
Regular Business Hours, and, at all times, the electricity
required for the Leased Premises and Other Leased Premises;
8.2.4. such heat, ventilation and air conditioning for the Building,
the Leased Premises and Other Leased Premises as is
customarily provided for first class office buildings in the
immediate area for the comfortable use of the Building during
Regular Business Hours; and
8.2.5. heated water to the Building (except the Leased Premises and
Other Leased Premises, unless the appropriate plumbing,
fixtures and hot water heating units have been installed
therein).
8.3. Except as specifically set forth in subsections 8.1 and 8.2.1 of this
Agreement, the Tenant shall maintain and repair the Leased Premises and
keep the Leased Premises in as good condition and repair, reasonable
wear and use excepted, as the Leased Premises are upon the completion
of any improvements contemplated by section 5 of this Agreement.
9. Allocation of the Expense of Utilities, Services, Maintenance, Repairs and
Taxes.
9.1. All Tenant Electric Charges shall be borne by the Tenant.
9.2. Between the Commencement Date and the end of the No Pass Through
Period, the Tenant's Share of all Operational Expenses and Taxes
incurred during such period shall be borne by the Landlord.
9.3. Between the day after the end of the No Pass Through Period and the end
of the Term, the Tenant's Share of Operational Expenses and Taxes
incurred during each annual or shorter period ending on (a) December 31
of each year and (b) the end of the Term shall be borne as follows:
9.3.1. the Tenant's Share of: Operational Expenses and Taxes incurred
during each such period of 12 months (or shorter period), up
to the amounts of Base Year Operational Expenses and Base Year
Taxes, respectively (or proportional amount thereof for
periods shorter than 12 months), shall be borne by the
Landlord; and
9.3.2. the Tenant's Share of: the amounts by which Operational
Expenses and Taxes incurred during each such period of 12
months (or shorter period) exceed Base Year Operational
Expenses and Base Year Taxes, respectively (or proportional
amount thereof for periods shorter than 12 months) shall be
allocated to, and borne by, the Tenant as more specifically
set forth in section 10 of this Agreement.
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10. Computation and Payment of Allocated Expenses of Utilities, Services,
Maintenance, Repairs, Taxes and Capital Expenditures.
10.1. The Tenant shall promptly pay the following additional amounts to the
Landlord at the respective times set forth below:
10.1.1. commencing with the first day after the end of the No Pass
Through Period, and on the first day of each month thereafter
during the Term, one-twelfth of the Tenant's Share of the amount
by which Taxes for the then current calendar year exceeds Base
Year Taxes, computed in accordance with subsection 10.5 of this
Agreement. When Landlord knows of facts which cause a revision
of the estimate, it may serve a revised estimate and, for the
balance of the current calendar year, the estimated payments
shall be made accordingly;
10.1.2. within 20 days of the Landlord's giving notice to the Tenant
after the close of each calendar year closing during the Term,
commencing with the first calendar year closing after the close
of the No Pass Through Period, and after the end of the Term,
the Tenant's Share of the difference between the Landlord's
previously projected amount of Taxes for such period and the
actual amount of Taxes for such period, in either case in excess
of Base Year Taxes, computed in accordance with subsection 10.6
of this Agreement (unless such difference is a negative amount,
in which case the Landlord shall credit such difference against
any amounts next due from the Tenant under subsections 10.1.1
and 10.5 of this Agreement);
10.1.3. commencing with the first day after the end of the No Pass
Through Period, and on the first day of each month thereafter
during the Term, one-twelfth of the Tenant's Share of the amount
by which Operational Expenses for the then current calendar year
exceed Base Year Operational Expenses, computed in accordance
with subsection 10.7 of this Agreement. When Landlord knows of
facts which cause a revision of the estimate, it may serve a
revised estimate and, for the balance of the current calendar
year, the estimated payments shall be made accordingly;
10.1.4. within 20 days of the Landlord's giving notice to the Tenant
after the close of each calendar year closing during the Term,
commencing with the first calendar year closing after the close
of the No Pass Through Period, and after the end of the Term,
the Tenant's Share of the difference between the Landlord's
previously projected amount of Operational Expenses for such
period and the actual amount of Operational Expenses for such
period, in either case in excess of Base Year Operational
Expenses, computed in accordance with subsection 10.8 of this
Agreement (unless such difference is a negative amount, in which
case the Landlord shall credit such difference against any
amounts next due from the Tenant under subsections 10.1.5 and
10.7 of this Agreement);
10.1.5. commencing with the first day of the first month after the
Landlord gives any notice contemplated by subsection 10.9 of
this Agreement to the Tenant and continuing on the first day of
each month thereafter until the earlier of (a) the end of the
Term or (b) the last month of the useful life set forth in the
respective notice, one-twelfth of the
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Tenant's Share of any Annual Amortized Capital Expenditure,
computed in accordance with subsection 10.9 of this Agreement;
10.1.6. on the first day of each month during the Term, the monthly
Tenant Electric Charges, computed in accordance with subsection
10.10 of this Agreement; and
10.1.7. promptly as and when billed therefor by the Landlord, the
amount of any expense which would otherwise fall within the
definition of Operational Expenses, but which is specifically
paid or incurred by the Landlord for operation and maintenance
of the Building, the Common Facilities or the Property outside
Regular Business Hours at the specific request of the Tenant or
the amount of any expenditure incurred for maintenance or repair
of damage to the Building, the Common Facilities, the Property,
the Leased Premises or the Other Leased Premises caused directly
or indirectly, in whole or in part, by the active or passive
negligence or intentional act of the Tenant or any of its
employees, other agents or Guests.
10.2. "Operational Expenses" means all expenses paid or incurred by the
Landlord in connection with the Property, the Building, the Common
Facilities and any other improvements on the Property and their
operation and maintenance (other than Taxes (which are separately
allocated to the Tenant in accordance with subsections 10.1.1 and
10.1.2 of this Agreement), Capital Expenditures (which are separately
allocated to the Tenant in accordance with subsection 10.1.5 of this
Agreement) and those expenses contemplated by subsections 10.1.6 and
10.1.7 of this Agreement)) including, without limiting the generality
of the foregoing:
10.2.1. Utilities Expenses;
10.2.2. the expense of providing the services, maintenance and
repairs contemplated by subsections 8.1, 8.2.1 and 8.2.2 of
this Agreement, whether furnished by the Land lord's
employees or by independent contractors or other agents;
10.2.3. wages, salaries, fees and other compensation and
payments and payroll taxes and contributions to any social
security, unemployment insurance, welfare, pension or
similar fund and payments for other fringe benefits required
by law or union agree ment (or, if the employees or any of
them are not represented by a union, then payments for
benefits comparable to those generally required by union
agreement in first class office buildings in the immediate
area which are unionized) made to or on behalf of any
employees of Landlord performing services rendered in
connection with the operation and maintenance of the
Building, the Common Facilities and the Property, including,
without limiting the generality of the foregoing, elevator
opera tors, elevator starters, window cleaners, porters,
janitors, maids, miscellaneous handymen, watchmen, persons
engaged in patrolling and protecting the Building, the
Common Facilities and the Property, carpenters, engineers,
firemen, mechanics, electricians, plumbers, other tradesmen,
other persons engaged in the operation and maintenance of
the Building, Common Facilities and Property, Building
superinten dent and assistants, Building manager, and
clerical and administrative personnel;
10.2.4. the uniforms of all employees and the cleaning, pressing and
repair thereof;
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10.2.5. premiums and other charges incurred by Landlord with
respect to all insurance relating to the Building, the
Common Facilities and the Property and the operation and
maintenance thereof, including, without limitation: property
and casualty, fire and extended coverage insurance,
including windstorm, flood, hail, explosion, other casualty,
riot, rioting attending a strike, civil commotion, aircraft,
vehicle and smoke insurance; public liability insurance;
elevator, boiler and machinery insurance; excess liability
coverage insurance; use and occupancy insurance; workers'
compensation and health, accident, disability and group life
insurance for all employees; and casualty rent insurance;
10.2.6. sales and excise taxes and the like upon any Operational
Expenses and Capital Expenditures;
10.2.7. management fees of any independent managing agent for
the Property, the Building or the Common Facilities; and if
there shall be no independent managing agent, or if the
managing agent shall be a person affiliated with the
Landlord, the management fees that would customarily be
charged for the management of the Property, the Building and
the Common Facilities by an independent, first class
managing agent in the immediate area;
10.2.8. the cost of replacements for tools, supplies and
equipment used in the operation, service, maintenance,
improvement, inspection, repair and alteration of the
Building, the Common Facilities and the Property;
10.2.9. the cost of repainting or otherwise redecorating any
part of the Building or the Common Facilities;
10.2.10. decorations for the lobbies and other Common Facilities
in the Building;
10.2.11. the cost of licenses, permits and similar fees and
charges related to operation, repair and maintenance of the
Building, the Property and the Common Facilities;
10.2.12. an allocable share of service, replacement, repair,
maintenance and other charges assessed from time to time by
the Carnegie Center Owner's Association II to the Building;
and
10.2.13. any and all other expenditures of the Landlord in
connection with the operation, alteration, repair or
maintenance of the Property, the Common Facilities or the
Building as a first-class office building and facilities in
the immediate area which are properly treated as an expense
fully deductible as incurred in accordance with generally
applied real estate accounting practice.
10.3. "Capital Expenditures" means the following expenditures incurred or
paid by the Landlord in connection with the Property, the Building, the
Common Facilities and any other improvements on the Property:
10.3.1. all costs and expenses incurred by the Landlord in
connection with retro-fitting the entire Building or the
Common Facilities, or any portion thereof, to comply with
any change in Federal, state or local statute, rule,
regulation, order or requirement which change takes effect
after the original completion of the Building;
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10.3.2. all costs and expenses incurred by the Landlord to replace
and improve the Property, the Building or the Common
Facilities or portions thereof for the purpose of contin ued
operation of the Property, the Building and the Common
Facilities as a first class office complex in the immediate
area; and
10.3.3. all costs and expenses incurred by the Landlord in
connection with the installation of any energy, labor or
other cost saving device or system on the Property or in the
Building or the Common Facilities.
10.4. Neither "Operational Expenses" nor "Capital Expenditures" shall
include any of the following:
10.4.1. principal or interest on any mortgage indebtedness on the
Property, the Building or any portion thereof;
10.4.2. any capital expenditure, or amortized portion thereof, other
than those included in the definition of Capital
Expenditures set forth in subsection 10.3 above;
10.4.3. expenditures for any leasehold improvement which is made in
connection with the preparation of any portion of the
Building for occupancy by a new tenant or which is not made
generally to or for the benefit of the Leased Premises and
all Other Leased Premises or generally to the Building or
the Common Facilities;
10.4.4. to the extent the Landlord actually receives proceeds of
property and casualty insur ance policies on the Building,
other improvements on the Property or the Common Facilities,
expenditures for repairs or replacements occasioned by fire
or other casualty to the Building or the Common Facilities;
10.4.5. expenditures for repairs, replacements or rebuilding
occasioned by any of the events contemplated by section 16
of this Agreement;
10.4.6. expenditures for costs, including advertising and leasing
commissions, incurred in connection with efforts to lease
portions of the Building and to procure new tenants for the
Building;
10.4.7. expenditures for the salaries and benefits of the executive
officers, if any, of the Landlord; and
10.4.8. depreciation (as that term is used in the accounting sense
in the context of generally applied real estate accounting
practice) of the Building, the Common Facilities and any
other improvement on the Property.
10.5. As soon as practicable after the close of the No Pass Through Period
and December 31 of each year thereafter, any portion of which is during
the Term, the Landlord shall furnish the Tenant with a notice setting
forth:
10.5.1. Taxes billed, or if a xxxx has not then been received
for the entire period, the Land lord's projection of Taxes
to be billed, for the then current calendar year;
10.5.2. the amount of Base Year Taxes;
10.5.3. the amount, if any, by which item 10.5.1 above exceeds item
10.5.2 above; and
10.5.4. the Tenant's Share of item 10.5.3 above.
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10.6. As soon as practicable after December 31 of each year during the Term
and after the end of the Term, the Landlord shall furnish the Tenant
with a notice setting forth:
10.6.1. the actual amount of Taxes for the preceding calendar
year in excess of Base Year Taxes (or proportional amount
thereof for shorter periods during the Term);
10.6.2. the Landlord's previously projected amount of Taxes for
the preceding calendar year in excess of Base Year Taxes (or
proportional amount thereof for shorter periods during the
Term);
10.6.3. the difference obtained by subtracting item 10.6.2 above
from item 10.6.1 above; and
10.6.4. the Tenant's Share of item 10.6.3 above.
10.7. As soon as practicable after the close of the No Pass Through Period
and December 31 of each year thereafter, any portion of which is during
the Term, the Landlord shall furnish the Tenant with a notice setting
forth:
10.7.1. the Landlord's projection of annual Operational Expenses
for the current period (if any portion thereof is during the
Term);
10.7.2. the amount of the Base Year Operational Expenses;
10.7.3. the amount, if any, by which item 10.7.1 above exceeds item
10.7.2 above; and
10.7.4. the Tenant's Share of item 10.7.3 above.
10.8. As soon as practicable after December 31 of each year during the Term
and after the end of the Term, the Landlord shall furnish the Tenant
with a notice setting forth:
10.8.1. the actual amount of Operational Expenses for the
preceding calendar year in excess of Base Year Operational
Expenses (or proportional amount thereof for shorter periods
during the Term);
10.8.2. the Landlord's previously projected amount of Operational
Expenses for the preced ing calendar year in excess of Base
Year Operational Expenses (or proportional amount thereof
for shorter periods during the Term);
10.8.3. the difference obtained by subtracting item 10.8.2 above
from item 10.8.1 above; and
10.8.4. the Tenant's Share of item 10.8.3 above.
10.9. As soon as practicable after incurring any Capital Expenditure, the
Landlord shall furnish the Tenant with a notice setting forth:
10.9.1. a description of the Capital Expenditure and the subject
thereof;
10.9.2. the date the subject of the respective Capital
Expenditure was first placed into service and the period of
useful life selected by the Landlord in connection with the
determi nation of the Annual Amortized Capital Expenditure;
10.9.3. the amount of the Annual Amortized Capital Expenditure; and
10.9.4. the Tenant's Share of item 10.9.3 above.
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10.10. As soon as practicable after the Commencement Date and from time to
time thereafter, the Landlord shall furnish the Tenant with a notice
setting forth its estimate of Tenant Electric Charges per month. Unless
the Tenant desires to question the Landlord's then most recent estimate
of Tenant Electric Charges exclusively in the manner set forth below,
the Landlord's then most recent estimate shall be binding and shall
continue in effect until any question raised by the Tenant is otherwise
resolved in accordance with this subsection 10.10 of the Agreement. If
the Tenant desires to question the Landlord's estimate of Tenant
Electric Charges, the Tenant shall give notice to the Landlord of its
desire. Upon receipt of the Tenant's notice, the Landlord shall obtain,
at the Tenant's expense, a reputable, independent electrical engineer's
formal written estimate and computation of the Tenant Electric Charges.
The engineer's estimate and computation of Tenant Electric Charges shall
thereupon control for a 12 month period com mencing with the date as of
which it is given effect as to Tenant Electric Charges, and until the
Landlord furnishes the Tenant with a subsequent notice setting forth its
estimate of Tenant Electric Charges per month, except to the extent that
the Landlord may increase them in proportion to increases in Utilities
Expenses during the same period.
10.11. Within 30 days after the Landlord gives any notice enumerated in
subsections 10.5 through 10.10 of this Agreement, the Tenant or the
Tenant's authorized agent, upon one week's prior notice to the Landlord,
may inspect the Landlord's books and records, as they pertain to the
particular expense in question, at the Landlord's office regarding the
subject of any such notice to verify the amount(s) and calculation(s)
thereof. After payment of the Tenant's Share in accordance with the
provisions of section 10 of this Agreement, no further audit shall be
conducted except with respect to items which may have been questioned
within the 30 day period. Tenant agrees that no audit will be conducted
by an auditor engaged, in whole or in part, on a contingent fee basis.
If an audit is conducted, the Landlord shall have the right to verify
that the provisions of this prohibition have been satisfied.
10.12. The mere enumeration of an item within the definitions of Operational
Expenses and Capital Expenditures in subsections 10.2 and 10.3 of this
Agreement, respectively, shall not be deemed to create an obligation on
the part of the Landlord to provide such item unless the Landlord is
affirmatively required to provide such item elsewhere in this Agreement.
11. Leasehold Improvements, Fixtures and Trade Fixtures.
All leasehold improvements to the Leased Premises, fixtures installed in the
Leased Premises and the blinds and floor treatments or coverings shall be the
property of the Landlord, regardless of when, by which party or at which party's
cost the item is installed. Movable furniture, furnishings, trade fixtures and
equipment of the Tenant which are in the Leased Premises shall be the property
of the Tenant, except as may otherwise be set forth in section 23 of this
Agreement.
12. Alterations, Improvements and Other Modifications by the Tenant.
12.1. The Tenant shall not make any alterations, improvements or other
modifications to the Leased Premises which effect structural changes in
the Building or any portion thereof, change the functional utility or
rental value of the Leased Premises or, except as may be contemplated by
section 5 of this Agreement prior to the Commencement Date, affect the
mechanical, electrical, plumbing or other systems installed in the
Building or the Leased Premises.
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12.2. The Tenant shall not make any other alterations, improvements or
modifications to the Leased Premises, the Building or the Property or
make any boring in the ceiling, walls or floor of the Leased Premises
or the Building unless the Tenant shall have first:
12.2.1. furnished to the Landlord detailed, New Jersey
architect-certified construction drawings, construction
specifications and, if they pertain in any way to the
heating, ventilation and air conditioning or other systems
of the Building, related engineering design work and
specifications regarding, the proposed alterations,
improvements or other modifications;
12.2.2. not received a notice from the Landlord objecting thereto in
any respect within 30 days of the furnishing thereof (which
shall not be deemed the Landlord's affirmative consent for
any purpose);
12.2.3. obtained any necessary or appropriate building permits or
other approvals from the Municipality and, if such permits
or other approvals are conditional, satisfied all conditions
to the satisfaction of the Municipality; and
12.2.4. met, and continued to meet, all the following conditions
with regard to any contractors selected by the Tenant and
any subcontractors, including materialmen, in turn selected
by any of them:
12.2.4.1. the Tenant shall have sole responsibility
for payment of, and shall pay, such
contractors;
12.2.4.2. the Tenant shall have sole responsibility
for coordinating, and shall coordinate, the
work to be supplied or performed by such
contractors, both among themselves and with
any contractors selected by the Landlord;
12.2.4.3. the Tenant shall not permit or suffer the
filing of any mechanic's notice of
intention or other lien or prospective
lien by any such contractor or subcontractor
with respect to the Property, the Common
Facilities, the Building or any other
improvements on the Property; and if any of
the foregoing should be filed by any such
contractor or subcontractor,the Tenant shall
forthwith obtain and file the complete
discharge and release thereof or provide
such payment bond(s) from a reputable,
financially sound institutional surety as
will, in the opinions of the Landlord,
the holders of any mortgage indebtedness on,
or other interest in, the Property, the
Building, the Common Facilities or any other
improvements on the Property, or any
portions thereof, and their respective title
insurers, be adequate to assure the
complete discharge and release thereof;
12.2.4.4. prior to any such contractor's entering upon
the Property, the Building or the Leased
Premises or commencing work the Tenant shall
have deliv ered to the Landlord (a) all the
Tenant's certificates of insurance set forth
in section 14 of this Agreement, conforming
in all respects to the require ments of
section 14 of this Agreement, except that
the effective dates of all such insurance
policies shall be prior to any such
contractor's entering
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upon the Property, the Building or the
Leased Premises or commencing work (if any
work is scheduled to begin before the
Commencement Date) and (b) similar
certificates of insurance from each of the
Tenant's con tractors providing for coverage
in equivalent amounts, together with their
respective certificates of workers'
compensation insurance, employer's liability
insurance and products-completed operations
insurance, the latter providing coverage in
at least the amount required for the
Tenant's comprehensive general public
liability and excess insurance;
12.2.4.5. each such contractor shall be a party to
collective bargaining agreements with those
unions that are certified as the collective
bargaining agents of all bargaining units of
such contractor, of which all such
contractor's workpersons shall be members in
good standing;
12.2.4.6. each such contractor shall perform its work
in a good and workpersonlike manner and
shall not interfere with or hinder the
Landlord or any other contractor in any
manner;
12.2.4.7. there shall be no labor dispute of any
nature whatsoever involving any such
contractor or any workpersons of such
contractor or the unions of which they are
members with anyone; and if such a labor
dispute exists or comes into existence the
Tenant shall forthwith, at the Tenant's sole
cost and expense, remove all such
contractors and their workpersons from the
Building, the Common Facilities and the
Property; and
12.2.4.8. the Tenant shall have the sole
responsibility for the security of the
Leased Premises and all contractors'
materials, equipment and work, regardless of
whether their work is in progress or
completed.
12.3. After the Commencement Date, the Tenant shall not apply any wall
covering (except latex based flat paint) or other treatment to the
walls of the Leased Premises without the prior written consent of the
Landlord.
13. Landlord's Rights of Entry and Access.
The Landlord and its authorized agents shall have the following rights of entry
and access to the Leased Premises:
13.1. In case of any emergency or threatened emergency, at any time for any
purpose which the Landlord reasonably believes under such circumstances
will serve to prevent, eliminate or reduce the emergency, or the threat
thereof, or damage or threatened damage to persons and property.
13.2 Upon at least one day's prior verbal advice to the Tenant, at any time
for the purpose of erecting or constructing improvements, modifications,
alterations and other changes to the Building or any portion thereof,
including, without limiting the generality of the foregoing, the Leased
Premises, the Common Facilities or the Property or for the purpose of
repairing, maintaining or cleaning them, whether for the benefit of the
Landlord, the Building, all tenants of Other Leased Premises in the
Building, or one or more tenants of Other Leased Premises, the Carnegie
Center Complex or others. In connection with any such improvements,
modifications, alterations, other
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changes, repairs, maintenance or cleaning, the Landlord may close off
such portions of the Property, the Building and the Common Facilities
and interrupt such services as may be necessary to accomplish such
work, without liability to the Tenant therefor and without such closing
or interruption being deemed an eviction or constructive eviction or
requiring an abatement of Rent. However, in accomplishing any such
work, the Landlord shall endeavor not to materially interfere with the
Tenant's use and enjoyment of the Leased Premises or the conduct of the
Tenant's business and to minimize interference, inconvenience and
annoyance to the Tenant.
13.3. At all reasonable hours for the purpose of operating, inspecting or
examining the Building, including the Leased Premises, or the Property.
13.4. At any time after the Tenant has vacated the Leased Premises, for the
purpose of preparing the Leased Premises for another tenant or
prospective tenant.
13.5. If practicable by appointment with the Tenant, at all reasonable hours
for the purpose of showing the Building to prospective purchasers,
mortgagees and prospective mortgagees and prospective ground lessees
and lessors.
13.6. If practicable by appointment with the Tenant, at all reasonable hours
during the last six months of the Term for the purpose of showing the
Leased Premises to prospective tenants thereof.
13.7. The mere enumeration of any right of the Landlord within this section
13 of the Agreement shall not be deemed to create an obligation on the
part of the Landlord to exercise any such right unless the Landlord is
affirmatively required to exercise such right elsewhere in this
Agreement.
14. Liabilities and Insurance Obligations.
14.1. The Tenant shall, at the Tenant's own expense, purchase before the
Commencement Date, and maintain in full force and effect throughout the
Term and any other period during which the Tenant may have possession of
the Leased Premises, the following types of insurance coverage from
financially sound and reputable insurers, licensed by the State of New
Jersey to provide such insurance and acceptable to the Landlord, in the
minimum amounts set forth below, each of which insurance policies shall
be for the benefit of, and shall name the Landlord, the Landlord's
managing agent and mortgagees and ground lessors known to the Tenant, if
any, of the Building, the Common Facilities, the Property or any
interest therein, their successors and assigns as additional persons
insured, and none of which insurance policies shall contain a
"co-insurance" clause:
14.1.1. commercial general liability insurance (including "broad
form and contractual liabil ity" coverage) and excess
("umbrella") insurance which, without limiting the general ity
of the foregoing, considered together shall insure against such
risks as bodily injury, death and property damage, with a
combined single limit of not less than $3,000,000.00 for each
occurrence; and
14.1.2. "all-risks" property insurance covering the Leased Premises
in an amount sufficient, as determined by the Landlord from time
to time, to cover the replacement costs for all Tenant's
alterations, improvements, fixtures and personal property
located in or on the Leased Premises.
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14.2. With respect to risks:
14.2.1. as to which this Agreement requires either party to maintain
insurance, or
14.2.2. as to which either party is effectively insured and for
which risks the other party may be liable, the party required to
maintain such insurance and the party effectively insured shall
use its best efforts to obtain a clause, if available from the
respective insurer, in each such insurance policy expressly
waiving any right of recovery, by reason of subrogation to such
party's rights or otherwise, the respective insurer might
otherwise have or obtain against the other party, so long as
such a clause can be obtained in the respective insurance policy
without additional premium cost. If such a clause can be
obtained in the respective insurance policy, but only at
additional premium cost, such party shall, by notice to the
other party, promptly advise the other party of such fact and
the amount of the additional premium cost. If the other party
desires the inclusion of such a clause in the notifying party's
respective insurance policy, the other party shall, within 10
days of receipt of the notifying party's notice, by notice
advise the notifying party of its desire and enclose therewith
its check in the full amount of the additional premium cost;
otherwise the notifying party need not obtain such a clause in
the respective insurance.
14.3. Each party hereby waives any right of recovery against the other party
for any and all damages for property losses and property damages which
are actually insured by either party, but only to the extent:
14.3.1. that the waiver set forth in this subsection 14.3 does
not cause or result in any cancellation of, or diminution
in, the insurance coverage otherwise available under any
applicable insurance policy;
14.3.2. of the proceeds of any applicable insurance policy (without
adjustment for any deductible amount set forth therein)
actually received by such party for such respec tive loss or
damages; and
14.3.3. the substance of the clause contemplated by subsection 14.2
of this Agreement is actually and effectively set forth in
the respective insurance policy. The waiver set forth in
this subsection 14.3 of the Agreement shall not apply with
respect to liability insurance policies (as opposed to
property and casualty insurance policies).
14.4. The Tenant hereby waives any right of recovery it might otherwise have
against the Landlord for losses and damages caused actively or
passively, in whole or in part, by any of the risks the Tenant is
required to insure against in accordance with subsections 14.1.1 or
14.1.2 of this Agreement, unless such waiver would cause or result in a
cancellation of, or diminution in, the coverage of the Tenant's
policies of insurance against such risks.
14.5. The Landlord shall have no liability whatsoever to the Tenant or the
Tenant's employees, other agents or Guests or anyone else for any
death, bodily injury, property loss or other damages suffered by any of
them or any of their property which is not caused directly, exclusively
and entirely by the active gross negligence or intentional misconduct
of the Landlord without the intervention or contribution of any other
cause or contributing factor whatsoever.
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14.6. Each policy of insurance required under subsection 14.1 of this
Agreement shall include provisions to the effect that:
14.6.1. no act or omission of the Tenant, its employees, other
agents or Guests shall result in a loss of insurance
coverage otherwise available under such policy to any person
required to be named as an additional insured in accordance
with subsection 14.1 of this Agreement; and
14.6.2. the insurance coverage afforded by such policy shall not be
diminished, cancelled, permitted to expire or otherwise
terminated for any reason except upon 30 days' prior written
notice from the insurer to every person required to be named
as an additional insured in accordance with subsection 14.1
of this Agreement.
14.7. With respect to each type of insurance coverage referred to in
subsection 14.1 of this Agree ment, prior to the Commencement Date the
Tenant shall cause its insurer(s) to deliver to the Landlord the
certificate(s) of the insurer(s) setting forth the name and address of
the insurer, the name and address of each additional insured, the type
of coverage provided, the limits of the coverage, any deductible
amounts, the effective dates of coverage and that each policy under
which coverage is provided affirmatively includes provisions to the
effect set forth in subsec tion 14.6 of this Agreement. In the event any
of such certificates indicates a coverage termina tion date earlier than
the end of the Term or the end of any other period during which the
Tenant may have possession of the Leased Premises, no later than 10 days
before any such coverage termination date, the Tenant shall deliver to
the Landlord respective, equivalent, new certificate(s) of the
insurer(s).
15. Casualty Damage to Building or Leased Premises.
15.1. In the event of any damage to the Building or any portion thereof by
fire or other casualty, with the result that the Leased Premises are
rendered unusable, in whole or in part, then, unless the Building is
destroyed or so damaged that the Landlord does not intend to rebuild the
same, the Landlord shall, within 30 business days of the casualty,
determine the period of time required to restore the Building and the
Leased Premises (but not including the improvements constructed or
installed prior to the Term or during the Term in excess of the original
allowance for the same).
15.1.1. If, in Landlord's opinion, the restoration described
above will take more than 180 days then Landlord may elect
to cancel this Agreement effective as of the date of
casualty. Notice of the Landlord's election shall be served
upon the Tenant within the 30 business day period described
above.
15.1.2. If, in Landlord's opinion, the restoration described above
will take 180 days or less, then Landlord shall not cancel
this Agreement and must restore the Building and the Leased
Premises as aforesaid. In either of such events, the
Landlord shall cause restoration to proceed diligently and
expediently to the extent the Landlord has received proceeds
of any property, casualty or liability insurance on the
damaged portions (or would have received such proceeds had
it obtained such coverage).
15.2. Rent shall xxxxx from the date of the casualty until:
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15.2.1. such time as the Leased Premises are again fully usable
and be reduced during such period by the amount which bears
the same proportion to the Rent otherwise payable during
such period as the gross rentable floor space of the Leased
Premises which are rendered unusable bears to the gross
rentable floor space of the Leased Premises. The restoration
of the improvements constructed or installed prior to the
Term or during the Term in excess of the original allowance
for the same shall be the Tenant's responsibility. Tenant
shall make reasonable, good faith efforts to integrate the
restoration which is its responsiblity with the work which
is being performed by Landlord. To the extent that is not
feasible, Tenant shall be allowed an additional, reasonable
interval to complete its work, not to exceed sixty days and
Rent shall xxxxx during the interval required for such
restoration. The Landlord shall cooperate with Tenant to
integrate the restoration of such improvements during the
reconstruction period; or
15.2.2. this Agreement is canceled pursuant to the provisions of
subsections 15.1.
15.3. If, in the Landlord's opinion, the restoration described above will
take more than 180 days and the Landlord makes the election to cancel
set forth in subsection 15.1 above then Landlord, in such event, may
proceed with restoration (or non-restoration) in any manner it chooses,
without any liability to Tenant.
15.4. The Tenant shall promptly advise the Landlord by the quickest means of
communication of the occurrence of any casualty damage to the Building
or the Leased Premises of which the Tenant becomes aware.
16. Condemnation.
If the Leased Premises, or any portion thereof, or the Building or the Common
Facilities, or any substantial portion of any of the foregoing, shall be
acquired for any public or quasi-public use or purpose by statute, right of
eminent domain or private sale in lieu thereof, with the result the Tenant can
not use and occupy the Leased Premises for the purpose set forth in subsection
7.1 of this Agreement, the Tenant hereby waives any claim against the Landlord,
the condemning authority or other person acquiring same for any thing of value,
tangible or intangible, including, without limiting the generality of the
foregoing, the putative value of any leasehold interest or loss of the use of
same, except for any right the Tenant might have to make a claim, independent
of, and without reference to or having any effect on, any award or claim of the
Landlord, against the condemning authority or other acquiring party regarding
the value of the Tenant's installed trade fixtures and other installed equip
ment which are not removable from the Leased Premises or for ordinary and
necessary moving expenses occasioned thereby.
17. Assignment or Subletting by Tenant.
17.1. Except as may be specifically set forth in this section 17 of the
Agreement, the Tenant shall not:
17.1.1. assign, or purport to assign, this Agreement or any of
the Tenant's rights hereunder;
17.1.2. sublet, or purport to sublet, the Leased Premises or any
portion thereof;
17.1.3. license, or purport to license, the use or occupancy of
the Leased Premises or any portion thereof;
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17.1.4. otherwise transfer, or attempt to transfer any interest
including, without limiting the generality of the foregoing,
a mortgage, pledge or security interest, in this Agreement,
the Leased Premises or the right to the use and occupancy of
the Leased Premises; or
17.1.5. indirectly accomplish, or permit or suffer the
accomplishment of, any of the foregoing by merger or
consolidation with another entity, by acquisition or
disposition of assets or liabilities outside the ordinary
course of the Tenant's business or by acquisition or
disposition, by the Tenant's equity owners or subordinated
creditors, of any of their respective interests in the
Tenant.
17.2. The Tenant shall not assign this Agreement or any of the Tenant's
rights hereunder or sublet the Leased Premises or any portion thereof
without first giving three months' prior notice to the Landlord of its
desire to assign or sublet and requesting the Landlord's consent and
without first receiving the Landlord's prior written consent. The
Tenant's notice to the Landlord shall include:
17.2.1. the full name, address and telephone number of the
proposed assignee or sublessee;
17.2.2. a description of the type(s) of business in which the
proposed assignee or sublessee is engaged and proposes to
engage;
17.2.3. a description of the precise use to which the proposed
assignee or sublessee intends to put the Leased Premises or
portion thereof;
17.2.4. the proposed assignee's or subtenant's most recent quarterly
and annual financial statements prepared in accordance with
generally accepted accounting principles and any other
evidence of financial position and responsibility that the
Tenant or proposed assignee or sublessee may desire to
submit;
17.2.5. by diagram and measurement of the actual square feet of
floor space, the precise portion of the Leased Premises
proposed to be subject to the assignment of this Agreement
or to be sublet;
17.2.6. a complete, accurate and detailed description of the terms
of the proposed assignment or sublease including, without
limiting the generality of the foregoing, all consider ation
paid or given, or proposed to be paid or to be given, by the
proposed assignee, sublessee or other person to the Tenant
and the respective times of payment or delivery; and
17.2.7. any other information reasonably requested by the Landlord.
17.3. By the expiration of the notice period contemplated by subsection 17.2
of this Agreement, the Landlord, in its sole discretion, shall take one
of the following actions by notice to the Tenant:
17.3.1. grant consent on the terms and conditions set forth in
subsection 17.4 of this Agree ment and such other reasonable
terms and conditions set forth in the Landlord's notice;
17.3.2. refuse to grant consent for any of the reasons set forth in
subsection 17.5 of this Agreement or for any other
reasonable reason set forth in the Landlord's notice; or
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17.3.3. elect to terminate the Term as of (a) the end of the third
full month after the Tenant has given notice of the Tenant's
desire to assign or sublet or (b) the proposed effective
date of the proposed assignment or sublease.
17.4. The Landlord's consent to the Tenant's proposed assignment or sublease,
if granted under subsection 17.3.1 of this Agreement, shall be subject
to all the following terms and conditions (and to any other terms and
conditions permitted by that subsection):
17.4.1. any proposed assignee or sublessee shall, by document
executed and delivered forthwith to the Landlord, agree to
assume and be bound by all the obligations of the Tenant set
forth in this Agreement;
17.4.2. the Tenant shall remain liable under this Agreement, jointly
and severally with any proposed assignee or sublessee, for
the timely performance of all obligations of the Tenant set
forth in this Agreement;
17.4.3. the Tenant shall forthwith deliver to the Landlord manually
executed copies of all documents regarding the proposed
assignment or sublease and a written, accurate and complete
description, manually executed both by the Tenant and the
proposed assignee or sublessee, of any other agreement,
arrangement or understanding between them regarding the
same;
17.4.4. with respect to any consideration or other thing of value
received or to be received by the Tenant in connection with
any such assignment or sublease (other than those payable in
equal monthly installments each month during the proposed
term of any such assignment or sublease), the Tenant shall
pay to the Landlord one-half of any such amount and one-half
of the fair market value of any other thing of value within
10 days of receipt of same; and
17.4.5. with respect to any amount payable to the Tenant in
equal monthly installments each month during the proposed
term of any such assignment or sublease in connection with
such assignment or sublease, which amount is in excess of
the amount which bears the same ratio to the monthly
installment of Rent due from the Tenant as the usable floor
space of the Leased Premises subject to the assignment or
sublease bears to the usable floor space of the entire
Leased Premises, the Tenant shall pay one-half of such
excess to the Landlord together with the Tenant's monthly
installment of Rent.
17.5. The Landlord's refusal to grant consent under subsection 17.3.2 of this
Agreement shall not be deemed an unreasonable withholding of consent if
based upon any of the following reasons (or any other reason permitted
by that subsection):
17.5.1. the Landlord desires to take one of the other actions
enumerated in subsection 17.3 of this Agreement;
17.5.2. there is already another assignee, sublessee or licensee
of all or a portion of the Leased Premises;
17.5.3. the proposed sublease is for a term of less than one year;
17.5.4. the proposed sublease is for a term which would expire after
the Term;
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17.5.5. less than one year remains in the Term as of the proposed
effective date of the proposed assignment or sublease;
17.5.6. the general reputation, financial position or ability or
type of business of, or the anticipated use of the Leased
Premises by, the proposed assignee or proposed subles see is
unsatisfactory to the Landlord or is inconsistent with those
of tenants of Other Leased Premises or of the Carnegie
Center Complex or inconsistent with any commit ment made by
the Landlord to any such other tenant;
17.5.7. the proposed consideration to be paid to the Tenant during
any period of 12 months is less than the amount of the
Market Rental Rate divided by the gross rentable floor space
of the Leased Premises and multiplied by that portion of the
gross rentable floor space of the Leased Premises proposed
to be subject to the proposed assignment or sublease; or
17.5.8. the gross rentable floor space of the portion of the Leased
Premises proposed to be sublet is less than one-third of the
gross rentable floor space of the Leased Premises.
18. Signs, Displays and Advertising.
18.1. The Tenant shall have one sign identifying the Landlord's assigned
number for the Leased Premises at the principal entrance to the Leased
Premises. The Tenant may identify itself in or on each of: the sign at
the principal entrance to the Leased Premises, the Building directory
and the directory, if any, on the floor of the Building on which the
Leased Premises is located. All such signs, and the method and materials
used in mounting and dismounting them, shall be in accordance with the
Landlord's specifications. All such signs shall be provided and mounted
by the Landlord at the Landlord's expense, except that the Tenant shall
bear any expense of identifying itself on the sign at the principal
entrance to the Leased Premises.
18.2. No other sign, advertisement, fixture or display shall be used by the
Tenant on the Property or in the Building or the Common Facilities. Any
signs other than those specifically permitted under subsection 18.1 of
this Agreement shall be removed promptly by the Tenant or by the
Landlord at the Tenant's expense.
19. Quiet Enjoyment.
The Landlord is the owner of the Building, the Property and those Common
Facilities located on the Property. The Landlord has the right and authority to
enter into and execute and deliver this Agreement with the Tenant. So long as an
Event of Default shall not have occurred, the Tenant shall and may peaceably and
quietly have, hold and enjoy the Leased Premises during the Term in accordance
with this Agreement.
20. Relocation.
At any time and from time to time during the Term, on at least 30 days' prior
notice to the Tenant, but subject to the provisions of subsection 26.4 of this
agreement, the Landlord shall have the right to move the Tenant out of the
Leased Premises and into premises having at least equal floor space located in
the Building or in any other comparable building located in the Carnegie Center
Complex for the duration of the Term, subject to the express written consent of
State Mutual Life Assurance Company of America, as long as it is the holder of
the first mortgage on the Property. In the event the Landlord
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exercises this right of relocation, the Landlord shall decorate the new premises
similarly to the Leased Premises and remove, relocate and reinstall the Tenant's
furniture, trade fixtures, furnishings and equipment, all at the sole cost and
expense of the Landlord. When the substitute new premises are ready, the Tenant
shall surrender the Leased Premises. Following any such relocation, this
Agreement shall continue in full force and effect except for the description of
the Leased Premises, the Building and the Property which, upon completion of
such relocation, shall be deemed amended to describe the substitute new
premises, building and property, respectively, to which the Tenant shall have
been relocated in accordance with this section 20 of the Agreement.
21. Surrender.
Upon termination of the Term, or at any other time at which the Landlord, by
virtue of any provision of this Agreement or otherwise has the right to re-enter
and re-take possession of the Leased Premises, the Tenant shall surrender
possession of the Leased Premises; remove from the Leased Premises all property
owned by the Tenant or anyone else other than the Landlord; remove from the
Leased Premises any alterations, improvements or other modifications to the
Leased Premises that the Landlord may request by notice; make any repairs
required by such removal; clean the Leased Premises; leave the Leased Premises
in as good order and condition as it was upon the completion of any improvements
contemplated by section 5 of this Agreement, ordinary wear and use excepted;
return all copies of all keys and passes to the Leased Premises, the Common
Facilities and the Building to the Landlord; and receive the Landlord's written
acceptance of the Tenant's surrender. The Landlord shall not be deemed to have
accepted the Tenant's surrender of the Leased Premises unless and until the
Landlord shall have executed and delivered the Landlord's written acceptance of
surrender to the Tenant, which shall not be unreasonably withheld or delayed.
22. Events of Default.
The occurrence of any of the following events shall constitute an Event of
Default under this Agree ment:
22.1. the Tenant's failure to pay any installment of Basic Rent or any
amount of Additional Rent when it is first due;
22.2. the Tenant's failure to perform any of its obligations under this
Agreement if such failure has caused, or may cause, loss or damage
that can not promptly be cured by subsequent act of the Tenant;
22.3. the Tenant's failure to complete performance of any of the
Tenant's obligations under this Agreement (other than those
contemplated by subsections 22.1 and 22.2 of this Agreement) within
10 days after the Landlord shall have given notice to the Tenant
specifying which of the Tenant's obligations has not been performed
and in what respects, unless completion of performance within such
period of 10 days is not possible using diligence and expedience,
then within a reasonable time of the Landlord's notice so long as
the Tenant shall have commenced substantial performance within the
first three days of such period of 10 days and shall have continued
to provide substantial performance, diligently and expediently,
through to completion of performance;
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22.4. the discovery that any representation made by the Tenant in this
Agreement shall have been inaccurate or incomplete in any material
respect either on the date it was made or the date as of which it
was made;
22.5. the sale, transfer or other disposition of any interest of the
Tenant in the Leased Premises by way of execution or other legal
process;
22.6. with the exception of those of the following events to which
section 365 of the Bankruptcy Code shall apply in the context of an
office lease (in which case subsection 22.7 of this Agreement shall
apply):
22.6.1. the Tenant's becoming a "debtor," as that term is
defined in section 101 of the Bankruptcy Code;
22.6.2. any time when either the value of the Tenant's liabilities
exceed the value of the Tenant's assets or the Tenant is
unable to pay its obligations as and when they respectively
become due in the ordinary course of business;
22.6.3. the appointment of a receiver or trustee of the Tenant's
property or affairs; or
22.6.4. the Tenant's making an assignment for the benefit of, or
an arrangement with or among, creditors or filing a petition
in insolvency or for reorganization or for the appointment
of a receiver;
22.7. in the event of the occurrence of any of the events enumerated in
subsection 22.6 of this Agreement to which section 365 of the
Bankruptcy Code shall apply in the context of an office lease, the
earlier of the bankruptcy trustee's rejection or deemed rejection (as
those terms are used in section 365 of the Bankruptcy Code) of this
Agreement; or
22.8. the Tenant's abandoning the Leased Premises before expiration of the
Term without the prior written consent of the Landlord.
23. Rights and Remedies.
23.1. Upon the occurrence of an Event of Default the Landlord shall have all
the following rights and remedies:
23.1.1. to elect to terminate the Term by giving notice of such
election, and the effective date thereof, to the Tenant and
to receive Termination Damages;
23.1.2. to elect to re-enter and re-take possession of the Leased
Premises, without thereby terminating the Term, by giving
notice of such election, and the effective date thereof, to
the Tenant and to receive Re-Leasing Damages;
23.1.3. if the Tenant remains in possession of the Leased
Premises after the Tenant's obliga tion to surrender the
Leased Premises shall have arisen, to remove the Tenant and
the Tenant's and any others' possessions from the Leased
Premises by any of the follow ing means without any
liability to the Tenant therefor, any such liability to the
Tenant therefor which might otherwise arise being hereby
waived by the Tenant: legal proceedings (summary or
otherwise), writ of dispossession and any other means and to
receive Holdover Damages and, except in the circumstances
contemplated by section 20 of this Agreement, to receive all
expenses incurred in removing the Tenant
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and the Tenant's and any others' possessions from the Leased
Premises, and of storing such possessions if the Landlord so
elects;
23.1.4. to be awarded specific performance, temporary restraints and
preliminary and permanent injunctive relief regarding Events
of Default where the Landlord's rights and remedies at law
may be inadequate, without the necessity of proving actual
damages or the inadequacy of the rights and remedies at law;
23.1.5. to receive all expenses incurred in securing, preserving,
maintaining and operating the Leased Premises during any
period of vacancy, in making repairs to the Leased Premises,
in preparing the Leased Premises for re-leasing and in
re-leasing the Leased Premises including, without limiting
the generality of the foregoing, any brokerage commissions;
23.1.6. to receive all legal expenses, including without limiting
the generality of the forego ing, attorneys' fees incurred
in connection with pursuing any of the Landlord's rights and
remedies, including indemnification rights and remedies;
23.1.7. if the Landlord, in its sole discretion, elects to perform
any obligation of the Tenant under this Agreement (other
than the obligation to pay Rent) which the Tenant has not
timely performed, to receive all expenses incurred in so
doing;
23.1.8. to elect to pursue any legal or equitable right and
remedy available to the Landlord under this Agreement or
otherwise; and
23.1.9. to elect any combination, or any sequential combination of
any of the rights and remedies set forth in subsection 23.1
of this Agreement.
23.2. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.1 of this Agreement, Termination Damages shall be equal
to the amount which, at the time of actual payment thereof to the
Landlord, is the sum of:
23.2.1. all accrued but unpaid Rent;
23.2.2. the present value (calculated using the most recently
available (at the time of calcula tion) published weekly
average yield on United States Treasury securities having
maturities comparable to the balance of the then remaining
Term) of the sum of all payments of Rent remaining due (at
the time of calculation) until the date the Term would have
expired (had there been no election to terminate it earlier)
less the present value (similarly calculated) of all
payments of rent to be received through the end of the Term
(had there been no election to terminate it earlier) from a
lessee, if any, of the Leased Premises at the time of
calculation (and it shall be assumed for purposes of such
calculations that (i) the amount of future Additional Rent
due per year under this Agreement will be equal to the
average Additional Rent per month due during the 12 full
calendar months immediately preceding the date of any such
calculation, increas ing annually at a rate of eight percent
compounded, (ii) if any calculation is made before the first
anniversary of the end of the No Pass Through Period, the
average Additional Rent due for any month after the end of
the No Pass Through Period will be equal to nine percent of
the sum of the Base Year Operational Expenses, Base Year
Taxes and Tenant Electric Charges (considered on an annual
basis), (iii) if any
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calculation is made before the beginning of the Base Year,
the sum of Base Year Taxes and Base Year Operational
Expenses shall be assumed to be $6.50 per gross rentable
square foot and (iv) if any calculation is made before the
end of the Base Year, Base Year Taxes and Base Year
Operational Expenses may be extrapolated based on the year
to date experience of the Landlord);
23.2.3. the Landlord's reasonably estimated cost of demolishing any
leasehold improvements to the Leased Premises; and
23.2.4. that amount, which as of the occurrence of the Event of
Default, bears the same ratio to the costs, if any, incurred
by the Landlord (and not paid by the Tenant) in building out
the Leased Premises in accordance with section 5 of this
Agreement as the number of months remaining in the Term
(immediately before the occurrence of the Event of Default)
bears to the number of months in the entire Term
(immediately before the occurrence of the Event of Default).
23.3. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.2 of this Agreement, Re-Leasing Damages shall be equal
to the Rent less any rent actually and timely received by the Landlord
from any lessee of the Leased Premises or any portion thereof, payable
at the respective times that Rent is payable under the Agreement plus
the cost, if any, to the Landlord of building out or otherwise
preparing the Leased Premises for, and leasing the Leased Premises to,
any such lessee.
23.4. In the event the Landlord elects the right and remedy set forth in
subsection 23.1.3 of this Agreement, Holdover Damages shall mean damages
at the rate per month or part thereof equal to the greater of: (a) one
and one-half times one-twelfth of the then Market Rental Rate plus all
Additional Rent as set forth in this Agreement or (b) double the average
amount of all payments of Rent due under this Agreement during each of
the last 12 full calendar months prior to the Landlord's so electing or,
in the event the Term shall have terminated by expiration under
subsection 24.1.1 of this Agreement, the last full 12 calendar months of
the Term, in either case payable in full on the first day of each
holdover month or part thereof.
23.5. In connection with any summary proceeding to dispossess and remove the
Tenant from the Leased Premises under subsection 23.1.3 of this
Agreement, the Tenant hereby waives:
23.5.1. any notices for delivery of possession thereof, of
termination, of demand for removal therefrom, of the cause
therefor, to cease, to quit and all other notices that might
otherwise be required pursuant to 2 A N.J.S.A. sec. 18-53 et
seq.;
23.5.2. any right the Tenant might otherwise have to cause a
termination of the action or proceeding by paying to the
Landlord or into court or otherwise any Rent in arrears;
23.5.3. any right the Tenant might otherwise have to a period of
waiting between issuance of any warrant in execution of any
judgment for possession obtained by the Landlord and the
execution thereof;
23.5.4. any right the Tenant might otherwise have to transfer or
remove such proceeding from the court (or the particular
division or part of the court) or other forum in which it
shall have been instituted by the Landlord to another court,
division or part;
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23.5.5. any right the Tenant might otherwise have to redeem the
Tenant's former leasehold interest between the entry of any
judgment and the execution of any warrant issued in
connection therewith by paying to the Landlord or into Court
or otherwise any Rent in arrears; and
23.5.6. any right the Tenant might otherwise have to appeal any
judgment awarding posses sion of the Leased Premises to the
Landlord.
23.6. The enumeration of rights and remedies in this section 23 of the
Agreement is not intended to be exhaustive or exclusive of any rights
and remedies which might otherwise be available to the Landlord, or to
force an election of one or more rights and remedies to the exclusion of
others, concurrently, consecutively or sequentially. On the contrary,
each right and remedy enumerated in this section 23 of the Agreement is
intended to be cumulative with each other right and remedy enumerated in
this section 23 of the Agreement and with each other right and remedy
that might otherwise be available to the Landlord; and the selection of
one or more of such rights and remedies at any time shall not be deemed
to prevent resort to one or more others of such rights and remedies at
the same time or a subsequent time, even with regard to the same
occurrence sought to be remedied.
23.7. It is expressly understood and agreed that the Landlord shall have no
duty to mitigate damages. In the event the Landlord elects the right and
remedy set forth in subsection 23.1.2 of this Agreement, Re-Leasing
Damages shall be equal to the Rent less any rent actually and timely
received by the Landlord from any lessee of the Leased Premises or any
portion thereof, payable at the respective times that Rent is payable
under the Agreement plus the cost, if any, to the Landlord of building
out or otherwise preparing the Leased Premises for, and leasing the
Leased Premises to, any such lessee. The Landlord may relet some or all
of the Leased Premises but shall have no duty to do so. The Tenant shall
retain its rights to sublet or assign the Leased Premises, or portions
thereof, pursuant to Article 17 hereof except to the extent that the
Landlord shall have already relet the same which shall abrogate the
Tenant's rights, pro tanto.
24. Termination of the Term.
24.1. The Term shall terminate upon the earliest of the following events to
occur:
24.1.1. expiration of the Term;
24.1.2. in connection with a transaction contemplated by section
16 of this Agreement, the later of (a) the vesting of the
acquiring party's right to possession or (b) the Tenant's
vacating the Leased Premises;
24.1.3. under the circumstances contemplated by subsection 15.1 of
this Agreement, upon the Tenant's giving prompt notice of
the failure of the Landlord to give, on a timely basis, the
notice contemplated by subsection 15.1.2 of this Agreement
and that the Tenant desires termination of the Term (which
termination shall be effective as of the date of the subject
casualty with respect to those portions of the Leased
Premises rendered untenantable and as of the date of the
Tenant's giving notice with respect to those portions of the
Leased Premises which were not rendered untenantable);
24.1.4. under the circumstances contemplated by subsection 15.1 of
this Agreement, upon the expiration of 45 additional days
(without the Landlord's completion of restoration in
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the interim) after the Tenant shall have given prompt notice
that the Landlord has not restored the Leased Premises on a
timely basis and that the Tenant desires termination of the
Term (which termination shall be effective as of the date of
the subject casualty with respect to those portions of the
Leased Premises rendered untenantable and as of the date of
the Tenant's giving notice with respect to those portions of
the Leased Premises which were not rendered untenantable);
24.1.5. the effective date of any election by the Landlord under
subsection 17.3.3 of this Agreement in response to the
Tenant's notice of the Tenant's desire to assign this
Agreement or to sublet all or a portion of the Leased
Premises; or
24.1.6. the effective date of any election by the Landlord to
terminate the Term under subsection 23.1.1 of this
Agreement.
24.2. No termination of the Term shall have the effect of releasing the
Tenant from any obligation or liability theretofore or thereby incurred
and, until the Tenant shall have surrendered the Leased Premises in
accordance with section 21 of this Agreement, from any obligation or
liability thereafter incurred.
25. Mortgage and Underlying Lease Priority.
This Agreement and the estate, interest and rights hereby created for the
benefit of the Tenant are, and shall always be, subordinate to any mortgage
(other than a mortgage created by the Tenant or a sale, transfer or other
disposition by the Tenant in the nature of a security interest in violation of
subsections 17.1.4 and 22.5, respectively, of this Agreement) already or
afterwards placed on the Property, the Common Facilities, the Building or any
estate or interest therein including, without limiting the generality of the
foregoing, any new mortgage or any mortgage extension, renewal, modification,
consolidation, replacement, supplement or substitution. This Agreement and the
estate, interest and rights hereby created for the benefit of the Tenant are,
and shall always be, subordinate to any ground lease already or afterwards made
with regard to the Property, the Common Facilities, the Building or any estate
or interest therein including, without limiting the generality of the foregoing,
any new ground lease or any ground lease extension, renewal, modification,
consolidation, replacement, supplement or substitution. The provisions of this
section 25 of the Agreement shall be self-effecting; and no further instrument
shall be necessary to effect any such subordination. Nevertheless, the Tenant
hereby consents that any mortgagee or mortgagee's successor in interest may, at
any time and from time to time, by notice to the Tenant, subordinate its
mortgage to the estate and interest created by this Agreement; and upon the
giving of such notice, the subject mortgage shall be deemed subordinate to the
estate and interest created by this Agreement regardless of the respective times
of execution or delivery of either or of recording the subject mortgage.
26. Transfer by Landlord.
26.1. The Landlord shall have the right at any time and from time to time to
sell, transfer, lease or otherwise dispose of the Carnegie Center
Complex, the Property, the Common Facilities or the Building or any of
the Landlord's interests therein, or to assign this Agreement or any of
the Landlord's rights thereunder.
26.2. Upon giving notice of the occurrence of any transaction contemplated by
subsection 26.1 of this Agreement, the Landlord shall thereby be
relieved of any obligation that might otherwise exist
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under this Agreement with respect to periods subsequent to the
effective date of any such transaction. If, in connection with any
transaction contemplated by subsection 26.1 of this Agreement the
Landlord transfers, or makes allowance for, any Security Deposit of the
Tenant and gives notice of that fact to the Tenant, the Landlord shall
thereby be relieved of any further obligation to the Tenant with regard
to any such Security Deposit; and the Tenant shall look solely to the
transferee with respect to any such Security Deposit.
26.3. In the event of the occurrence of any transaction contemplated by
subsection 26.1 of this Agreement the Tenant, upon written request
therefor from the transferee, shall attorn to and become the tenant of
such transferee upon the terms and conditions set forth in this
Agreement.
26.4. Notwithstanding anything to the contrary that may be set forth in
subsections 26.1, 26.2 and 26.3 of this Agreement, in the event any
mortgage contemplated by section 25 of this Agree ment is enforced by
the respective mortgagee pursuant to remedies provided in the mortgage
or otherwise provided by law or equity and any person succeeds to the
interest of the Landlord as a result of, or in connection with, any such
enforcement, the Tenant shall, upon the request of such successor in
interest, automatically attorn to and become the Tenant of such
successor in interest without any change in the terms or provisions of
this Agreement, except that such successor in interest shall not be
(a) liable for any act or omission of the Landlord; or
(b) liable for the return of the Security Deposit unless
actually received by such motgagee or such successor
in interest; or
(c) subject to any counterclaims, credits, rights to deduct from
rent, offsets or defenses which the Tenant might have
against the Landlord; or
(d) bound by any payment of Rent or Additional Rent to the
Landlord in advance for more than each current month; or
(e) bound by any agreement, amendment, modification, renewal or
extension (other than pursuant to the exercise by the Tenant
of an option therefor contained in this Agree ment),
termination, surrender, release, waiver, consent, or
approval, or the exercise by the Landlord of any option or
right (including without limitation the right to relocate
the Tenant contained in Section 20 of this Agreement), any
of which actions is taken or done with respect to this
Agreement without first obtaining the prior written consent
thereto by such mortgagee; or
(f) bound by any payment of any consideration or compensation of
any kind to the Landlord which may relate in any way to any
of the actions referred to in the immedi ately preceding
clause (e) or any payment of any damages or other amounts to
the Landlord relating in any way to any breach or default by
the Tenant under this agreement.
Upon the request of such successor in interest, the Tenant shall
execute, acknowledge and deliver any instrument(s) confirming any and
all of the matters referred to in this Subsection 26.4.
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26.5. If this Agreement and the estate, interest and rights hereby created
for the benefit of the Tenant are ever subject and subordinate to any
ground lease contemplated by section 25 of this Agreement:
26.5.1. upon the expiration or earlier termination of the term
of any such ground lease before the termination of the Term
under this Agreement, the Tenant shall attorn to, and become
the Tenant of, the lessor under any such ground lease and
recognize such lessor as the Landlord under this Agreement
for the balance of the Term; and
26.5.2. such expiration or earlier termination of the term of any
such ground lease shall have no effect on the Term under
this Agreement.
27. Indemnification.
27.1. The Tenant shall, and hereby does, indemnify the Landlord against any
and all liabilities, obligations, damages, penalties, claims, costs,
charges and expenses including, without limiting the generality of the
foregoing, expenses of investigation, defense and enforcement thereof
or of the obligation set forth in this section 27 of the Agreement
including, without limiting the generality of the foregoing, attorneys'
fees, imposed on or incurred by the Landlord in connec tion with any of
the following matters which occurs during the Term:
27.1.1. any matter, cause or thing arising out of the use,
occupancy, control or management of the Leased Premises or
any portion thereof which is not caused directly,
exclusively and entirely by the Landlord's active gross
negligence or intentional act without the intervention of
any other cause or contributing factor whatsoever;
27.1.2. any negligence or intentional act on the part of the Tenant
or any of its employees, other agents or Guests;
27.1.3. any accident, injury or damage to any person or property
occurring in or about the Leased Premises which is not
caused directly, exclusively and entirely by the Land lord's
active gross negligence or intentional act without the
intervention of any other cause or contributing factor
whatsoever;
27.1.4. any representation made by the Tenant in this Agreement
shall have been inaccurate or incomplete in any material
respect either on the date it was made or the date as of
which it was made;
27.1.5. the imposition of any mechanic's, materialman's or other
lien on the Property, the Common Facilities, the Building,
the Leased Premises or any portion of any of the foregoing,
or the filing of any notice of intention to obtain any such
lien, in connection with any alteration, improvement or
other modification of the Leased Premises made or authorized
by the Tenant (which indemnification obligation shall be
deemed to include the Tenant's obligations set forth in
subsection 12.2.4.3 of this Agreement); or
27.1.6. any failure on the part of the Tenant to perform or comply
with any obligation of the Tenant set forth in this
Agreement.
27.2. Payment of indemnification claims by the Tenant to the Landlord shall
be due upon the Landlord's giving notice thereof to the Tenant.
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27.3. The Landlord shall promptly give notice of any claim asserted, or
action or proceeding commenced, against it as to which it intends to
claim indemnification from the Tenant and, upon notice from the Tenant
so requesting, shall forward to the Tenant copies of all claim or
litigation documents received by it. Upon receipt of such notice the
Tenant may, by notice to the Landlord, participate therein and, to the
extent it may desire, assume the defense thereof through independent
counsel selected by the Tenant and reasonably satisfactory to the
Landlord. The Landlord shall not be bound by any compromise or
settlement of any such claim, action or proceeding without its prior
written consent.
28. Parties' Liability.
28.1. None of the following occurrences shall constitute a breach of this
Agreement by the Landlord, a termination of the Term, an active or
constructive eviction or an occurrence requiring an abatement of Rent:
28.1.1. the inability of the Landlord to provide any utility or
service to be provided by the Landlord, as described in
section 8 of this Agreement which is due to causes beyond
the Landlord's control, or to necessary or advisable
improvements, maintenance, repairs or emergency, so long as
the Landlord uses reasonable efforts and diligence under the
circumstances to restore the interrupted service or utility;
28.1.2. any improvement, modification, alteration or other change
made to the Carnegie Center Complex, the Property, the
Building or the Common Facilities by the Landlord
consistently with the Landlord's obligations set forth in
subsection 13.2 of this Agreement; and
28.1.3. any change in any Federal, state or local law or ordinance.
28.2. Except for the commencement, duration or termination of the
Term (other than under the circumstances contemplated by subsection 15.1
of this Agreement), the Tenant's obligation to make timely payments of
Rent, the Tenant's obligation to maintain certain insurance coverage in
effect, the Tenant's failure to perform any of its other obligations
under this Agreement if such failure has caused loss or damage that can
not promptly be cured by subsequent act of the Tenant and the period
within which any Option to Renew or any other type of option or optional
right exercisable by the Tenant must be exercised, any period of time
during which the Landlord or the Tenant is prevented from performing any
of its respective obligations under this Agreement because of fire, any
other casualty or catastrophe, strikes, lockouts, civil commo tion, acts
of God or the public enemy, governmental prohibitions or preemptions,
embargoes or inability to obtain labor or material due to shortage,
governmental regulation or prohibition, shall be added to the time when
such performance is otherwise required under this Agreement.
28.3. In the event the Landlord is an individual, partnership, joint venture,
association or a participant in a joint tenancy or tenancy in common,
the Landlord, the partners, venturers, members and joint owners shall
not have any personal liability or obligation under or in connection
with this Agreement or the Tenant's use and occupancy of the Leased
Premises; but recourse shall be limited exclusively to the Landlord's
interest in the Building.
28.4. If, at any time during the Term, the payment or collection of any Rent
otherwise due under this Agreement shall be limited, frozen or
otherwise subjected to a moratorium by applicable law,
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and such limitation, freeze or other moratorium shall subsequently be
lifted, whether before or after the termination of the Term, such
aggregate amount of Rent as shall not have been paid or collected
during the Term on account of any such limitation, freeze or other
moratorium, shall thereupon be due and payable at once. There shall be
added to the maximum period of any otherwise applicable statute of
limitation the entire period during which any such limitation, freeze
or other moratorium shall have been in effect.
28.5. If this Agreement is executed by more than one person as Tenant, their
liability under this Agreement and in connection with the use and
occupancy of the Leased Premises shall be joint and several.
28.6. In the event any rate of interest, or other charge in the nature of
interest, calculated as set forth in this Agreement would lead to the
imposition of a rate of interest in excess of the maximum rate
permitted by applicable usury law, only the maximum rate permitted
shall be charged and collected.
28.7. The rule of construction that any ambiguities that may be contained in
any contract shall be construed against the party drafting the contract
shall be inapplicable in construing this Agreement.
29. Security Deposit.
The Tenant shall pay to the Landlord upon execution and delivery of this
Agreement the sum of $12,158.13 as a security deposit to be held by the Landlord
as security for the Tenant's performance of all the Tenant's obligations under
this Agreement. The Landlord may commingle the Security Deposit with its general
funds. Any interest earned on the Security Deposit shall belong to the Landlord.
The Tenant shall not encumber the Security Deposit. The Landlord, in its sole
discretion, may apply the Security Deposit to cure any Event of Default under
this Agreement. If any such application is made, upon notice by the Landlord to
the Tenant, the Tenant shall promptly replace the amount so applied. If there
has been no Event of Default, within 30 days after termination of the Term the
Landlord shall return the entire balance of the Security Deposit to the Tenant.
The Tenant will not look to any foreclosing mortgagee of the Property, the
Building, the Common Facilities or any interest therein for such return of the
balance of the Security Deposit, unless the mortgagee has expressly assumed the
Landlord's obligations under this Agreement or has actually received the balance
of the Security Deposit.
30. Representations.
The Tenant hereby represents and warrants that:
30.1. its Standard Industrial Classification (SIC) code is 3970 and it will
promptly give notice of any change therein during the Term to the
Landlord;
30.2. no broker or other agent has shown the Leased Premises or the Building
to the Tenant, or brought either to the Tenant's attention, except
Princeton Realty Advisors, whose entire commission therefor is set forth
in a separate document and which commission the Tenant understands will
be paid by the Landlord directly to the person named;
30.3. the execution and delivery of, the consummation of the transactions
contemplated by and the performance of all its obligations under, this
Agreement by the Tenant have been duly and
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validly authorized by its general partners, to the extent required by
their partnership agreement and applicable law, if the Tenant is a
partnership or, if the Tenant is a corporation, by its board of
directors and, if necessary, by its stockholders at meetings duly called
and held on proper notice for that purpose at which there were
respective quorums present and voting throughout; and no other approval,
partnership, corporate, governmental or otherwise, is required to
authorize any of the foregoing or to give effect to the Tenant's
execution and delivery of this Agreement; and
30.4. the execution and delivery of, the consummation of the transactions
contemplated by and the performance of all its obligations under, this
Agreement by the Tenant will not result in a breach or violation of, or
constitute a default under, the provisions of any statute, charter,
certificate of incorporation or bylaws or partnership agreement of the
Tenant or any affiliate of the Tenant, as presently in effect, or any
indenture, mortgage, lease, deed of trust, other agreement, instrument,
franchise, permit, license, decree, order, notice, judgment, rule or
order to or of which the Tenant or any affiliate of the Tenant is a
party, a subject or a recipient or by which the Tenant, any affiliate of
the Tenant or any of their respective properties and other assets is
bound.
31. Reservation in Favor of Tenant.
Neither the Landlord's forwarding a copy of this document to any prospective
tenant nor any other act on the part of the Landlord prior to execution and
delivery of this Agreement by the Landlord shall give rise to any implication
that any prospective tenant has a reservation, an option to lease or an outstand
ing offer to lease any premises.
32. Tenant's Certificates and Mortgagee Notice Requirements.
32.1. Promptly upon request of the Landlord at any time or from time to
time, but in no event more than five days after the Landlord's
respective request, the Tenant shall execute, acknowledge and deliver to
the Landlord or its designee an estoppel or other certificate,
satisfactory in form and substance to the Landlord and any of its
mortgagees, ground lessors or lessees or trans ferees or prospective
mortgagees, ground lessors or lessees or transferees, with respect to
any of or all the following matters, which certificate shall be in the
form attached hereto as Exhibit G if so requested by State Mutual Life
Assurance Company of America while it remains a mortgagee of the
Property, the Building or any interest therein:
32.1.1. whether this Agreement is then in full force and effect;
32.1.2. whether this Agreement has not been amended, modified,
superseded, canceled, repudiated or revoked;
32.1.3. whether the Landlord has satisfactorily completed all
construction work, if any, required of the Landlord or
contractors selected and retained by the Landlord in connection
with readying the Leased Premises for occupancy by the Tenant in
accordance with section 5 of this Agreement;
32.1.4. whether the Tenant is then in actual possession of the
Leased Premises;
32.1.5. whether the Tenant then has no defenses or counterclaims
under this Agreement or otherwise against the Landlord or with
respect to the Leased Premises;
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32.1.6. whether Landlord is not then in breach of this Agreement
in any respect;
32.1.7. whether the Tenant then has no knowledge of any
assignment of this Agreement, the pledging or granting of
any security interest in this Agreement or in Rent due and
to become due under this Agreement;
32.1.8. whether Rent is not then accruing under this Agreement
in accordance with its terms;
32.1.9. whether any Rent is not then in arrears;
32.1.10. whether Rent due or to become due under this Agreement
has not been prepaid by more than one month;
32.1.11. if the response to any of the foregoing matters is in
the negative, a specification of all the precise reasons
that necessitated the negative response in each instance;
and
32.1.12. any other matter reasonably requested by the Landlord or any
of its mortgagees, ground lessors or lessees or transferees
or prospective mortgagees, ground lessors or lessees or
transferees, including, without limiting the generality of
the foregoing, such information as the Landlord may request
for purposes of assuring compliance with the Industrial Site
Recovery Act (13 N.J.S.A. sec. 1K-6 et seq.), as it may be
amended, and any other applicable Federal, state or local
statute, ordinance, rule, regulation or order concerned with
environmental matters.
32.2. If, in connection with the Landlord's or a prospective transferee's
obtaining financing or refinancing of the Carnegie Center Complex, the
Property, the Building, the Common Facili ties, any portion thereof or
any interest therein, the Landlord or a prospective lender shall so
request, the Tenant shall furnish to the requesting party within 15
days of the request:
32.2.1. its written consent to any requested modifications of
this Agreement provided that, in each such instance, the
requested modification does not increase the Rent otherwise
due or, in the reasonable judgment of the Tenant, otherwise
materially increase the obligations of the Tenant under this
Agreement or materially adversely affect the Tenant's
leasehold interest created hereby or the Tenant's use and
enjoyment of the Leased Premises (except in the
circumstances contemplated by section 16 of this Agreement);
and
32.2.2. summary financial information regarding its financial
position as of the close of its most recently completed
fiscal year and its most recently completed interim fiscal
period and regarding its results of operations for the
periods then ended and compara ble year earlier periods,
certified by Tenant's chief financial officer to be a
complete, accurate and fair presentation of the summary
financial information purporting to be set forth therein.
32.3. If the Landlord or any of its mortgagees gives notice to the Tenant of
any of their respective names and addresses from time to time, the
Tenant shall give notice to each such mortgagee of any notice of breach
or default previously or afterwards given by the Tenant to the Landlord
under this Agreement and provide in such notice that if the Landlord
has not cured such breach or default within any permissible cure period
then such mortgagee shall have the greater of (a) an additional period
of 30 days or (b) if such default cannot practically be cured by such
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mortgagee within such period, such additional period as is reasonable
under the circumstances, within which such mortgagee may cure such
default. Upon request of the Landlord at any time or from time to time,
the Tenant shall execute, acknowledge and deliver to the Landlord or
its designee an acknowledgment of receipt of any such notice, an
acknowledgment of receipt of any notice of assignment of this Agreement
or rights hereunder by the Landlord to any of its mortgagees and the
Tenant's agreement to the foregoing effect on the respective forms, if
any, furnished by the Landlord or the respective mortgagees.
32.4. Approximately (i) 90 days prior to the termination of the Term and (ii)
30 days prior to any relocation of the Tenant from the Leased Premises
(as constituted on the Commencement Date), the Tenant shall obtain from
the New Jersey Department of Environmental Protection, and deliver to
the Landlord, the Department's unconditional certificate of
non-applicability or approval of the Tenant's negative declaration or
clean-up plan, together with copies of all documents furnished to the
Department in connection with obtaining such certificate or approval.
33. Waiver of Jury Trial and Arbitration.
The parties hereby waive any right they might otherwise have to a trial by jury
in connection with any dispute arising out of or in connection with this
Agreement or the use and occupancy of the Leased Premises; and they hereby
consent to arbitration of any such dispute in Princeton, New Jersey, in
accordance with the rules for commercial arbitration of the American Arbitration
Association or successor organization, except that the Landlord, in its sole
discretion, may, with respect to any dispute involving either (i) the Landlord's
right to re-enter and re-take possession of the Leased Premises or (ii) the
determination of money damages following the occurrence of an Event of Default
under this Agreement, elect to pursue any of or all its rights in any court of
competent jurisdiction. Judgment upon any arbitration award may be entered in
any court of competent jurisdiction.
34. Severability.
In the event that any provision of this Agreement, or the application of any
provision in any instance, shall be conclusively determined by a court of
competent jurisdiction to be illegal, invalid or otherwise unenforceable, such
determination shall not affect the validity or enforceability of the balance of
this Agreement.
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5. Notices.
All notices contemplated by, permitted or required by this Agreement shall be in
writing. All notices required by this Agreement shall be personally delivered or
forwarded by certified mail--return receipt requested, addressed to the intended
party at its address first set forth above (adding, in the case of notices to
the Landlord after the Commencement Date, "Attention: Lease Administration") or,
in the case of notices to the Tenant during the Term or any other period during
which the Tenant shall be in possession of the Leased Premises, at the Leased
Premises. Either party may from time to time change the address prescribed in
this Agreement for notices to it by notice to the other. All notices required
under this Agreement shall be deemed given upon their deposit, properly
addressed and postage prepaid, in a postal depository or upon personal delivery
to the intended party, regardless of whether delivery shall be refused.
36. Captions.
Captions have been inserted at the beginning of each section of this Agreement
for convenience of reference only and such captions shall not affect the
construction or interpretation of any such section of this Agreement.
37. Counterparts.
This Agreement may be executed in more than one counterpart, each of which shall
constitute an original of this Agreement but all of which, taken together, shall
constitute one and the same Agree ment.
38. Applicable Law.
This Agreement and the obligations of the parties hereunder shall be governed by
and construed in accordance with the laws of the State of New Jersey.
39. Exclusive Benefit.
Except as may be otherwise specifically set forth in this Agreement, this
Agreement is made exclu sively for the benefit of the parties hereto and their
permitted assignees and no one else shall be entitled to any right, remedy or
claim by reason of any provision of this Agreement.
40. Successors.
This Agreement shall be binding upon the parties hereto and their respective
successors and assigns.
41. Amendments.
This Agreement contains the entire agreement of the parties hereto, subsumes all
prior discussions and negotiations and, except as may otherwise be specifically
set forth in this Agreement, this Agreement may not be amended or otherwise
modified except by a writing signed by all the parties to this Agreement.
42. Waiver.
Except as may otherwise be specifically set forth in this Agreement, the failure
of any party at any time or times to require performance of any provision of
this Agreement shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition, or of the breach of any
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term, covenant, representation or warranty set forth in this Agreement, whether
by conduct or otherwise, in any one or more instances shall be deemed to be or
construed as a further or continuing waiver of any such condition or breach, or
as a waiver of any other condition or of the breach of any other term, covenant,
representation or warranty set forth in this Agreement. The Landlord's accep
tance of, or endorsement on, any partial payment of Rent or any late payment of
Rent from the Tenant shall not operate as a waiver of the Landlord's right to
the balance of the Rent due on a timely basis regardless of any writing to the
contrary on, or accompanying, the Tenant's partial payment or the Landlord's
putative acquiescence therein. 43. Course of Performance. No course of dealing
or performance by the parties, or any of them, shall be admissible for the
purpose of obtaining an interpretation or construction of this Agreement at
variance with the express language of the Agreement itself.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
LANDLORD:
CARNEGIE 214 ASSOCIATES LIMITED PARTNERSHIP
By : 214 Capital Corp.
By: /s/ Xxxx X. Xxxxxx
-------------------------
Xxxx X. Xxxxxx, President
TENANT:
PALATIN TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Xxxxxx X. Xxxxxx
Chairman and CEO
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EXHIBIT A
LEASED PREMISES FLOOR SPACE DIAGRAM
[GROUND FLOOR PLAN DIAGRAM]
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EXHIBIT B
DESCRIPTION OF XXX 00, XXXXX X-0
XXXX XXXXXXX XXXXXXXX
XXXXXX XXXXXX, XXX XXXXXX
All that certain lot, parcel, or tract of land situate and lying in the Township
of West Windsor, County of Xxxxxx and State of New Jersey and being more
particularly bounded and described as follows:
BEGINNING at a point, said point being distant the following five courses
(designated A through E) from the intersection of the southerly line of Xxxxxx
Road (60' R.O.W.) and the westerly line of Xxx 00, Xxxxx X-0 as shown on a Major
Subdivision Map entitled "Preliminary-Final Xxxxx Xxxxxxxxxxx, Xxx 0, Xxxxx X-0
situated in Xxxx Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx," prepared by
Lynch, Carmody, Giuliano & Xxxxx, P.A., filed in the Xxxxxx County Clerk's
Office on February 18, 1983, as Map No. 2513, and running thence:
(A) South 44 13' 07" East, a distance of 324.42 feet to a point; thence
(B) South 58 57' 14" West, a distance of 716.08 feet to a point; thence
(C) South 16 48' 22" West, a distance of 198.72 feet to a point; thence
(D) South 49 39' 04" West, a distance of 583.64 feet to a point; thence
(E) South 42 48' 22" West, a distance of 10.00 feet to the aforementioned point
of BEGINNING, and running thence from the point of BEGINNING:
1. Along a curve to the right, said curve having a radius of 250.00 feet
and an arc length of 196.35 feet, to a point of tangency; thence
2. South 87 48' 22" West, a distance of 340.00 feet to a point; thence
3. North 02 11' 38" West, a distance of 394.25 feet to a point of
curvature; thence
4. Along a curve to the left, said curve having a radius of 200.00 feet
and an arc length of 157.08 feet, to a point of tangency; thence
5. North 47 11' 38" West, a distance of 295.16 feet to a point; thence
6. North 42 48' 22" East, a distance of 615.00 feet to a point; thence
7. South 47 11' 38" East, a distance of 279.19 feet to a point; thence
8. South 02 11' 38" East, a distance of 756.83 feet to a point; thence
9. South 47 11' 38" East, a distance of 214.65 feet to the point and place
of BEGINNING.
The above described parcel of land is intended to be the same as shown on a map
entitled "Preliminary-Final Major Subdivision, Xxxx 0 & 00, Xxxxx X-0, situated
in Xxxx Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxxxx," prepared by Lynch,
Carmody, Giuliano & Xxxxx, P.A., dated October 8, 1984, and revised to December
10, 1985, and filed in the Xxxxxx County Clerk's office on October 30, 1985 as
Map No. 2730.
The above description is in accordance with a survey prepared by Fellows Read &
Associates, Inc. dated January 9, 1986, revised to January 30, 1986.
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EXHIBIT C
WORK LETTER
The Building's structure is a three-story office building of Construction Type
2C with a steel frame, a metal deck floor system, a granite and concrete
exterior facade and insulated glass. The floors will sustain a live load of 100
pounds per square foot of usable floor space plus an allowance of 20 pounds per
square foot for partitions and has a typical bay size of 30 feet by 30 feet.
Among other Common Facilities, the Building contains two men's and two women's
bathrooms on each floor, two drinking fountains on each floor and two hydraulic
elevators with a capacity of 2,500 pounds each and has Parking Facilities with
approximately 500 lined parking spaces.
As used in this Work Letter, "building standard" shall mean the type and grade
of material, equipment or device designated by the Landlord as standard for
leased premises in the Building. Any work performed in the Building shall
conform to such standard.
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EXHIBIT D
BUILDING RULES AND REGULATIONS
The following are the Building Rules and Regulations adopted in accordance with
subsection 7.2.3 of the Agreement of which this exhibit is a part; and the
Tenant and the Tenant's employees, other agents and Guests shall comply with
these Building Rules and Regulations:
1. The sidewalks, driveways, entrances, passages, courts, lobby, esplanade
areas, plazas, elevators, vestibules, stairways, corridors, halls and other
Common Facilities shall not be obstructed or encum bered or used for any purpose
other than ingress and egress to and from the Leased Premises. The Tenant shall
not permit or suffer any of its employees, other agents or Guests to congregate
in any of the said areas. No door mat of any kind whatsoever shall be placed or
left in any public hall or outside any entry door of the Leased Premises.
2. No awnings or other projections shall be attached to the outside walls of the
Building. No curtains, drapes, blinds, shades or screens shall be attached to,
hung in or used in connection with any window or door of the Leased Premises
without the prior written consent of Landlord. If such consent is given, such
curtains, drapes, blinds, shades or screens shall be of a quality, type, design
and color, and attached in the manner, approved by Landlord.
3. Except as
otherwise specifically provided in subsection 18.1 of the Agreement, no sign,
insignia, advertisement, object, notice or other lettering shall be exhibited,
inscribed, painted or affixed so as to be visible from outside the Leased
Premises or the Building. In the event of the violation of the foregoing by the
Tenant, the Landlord may remove same without any liability and may charge the
expense incurred in such removal to the Tenant.
4. The sashes, doors, skylights, windows, and doors that reflect or admit light
and air into the halls, passageways or other public places in the Building shall
not be covered or obstructed and no bottles, parcels or other articles shall be
placed on the window xxxxx.
5. No showcase or other articles shall be placed in front of or affixed to any
part of the Building or the Common Facilities.
6. The lavatories, water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were designed and
constructed, and no sweepings, rubbish, rags, acids or other substances shall be
thrown or deposited therein. All damages resulting from any misuse thereof shall
be repaired at the expense of the Tenant that permitted or suffered the
violation hereof by the Tenant, the Tenant's employees, other agents or Guests.
7. The Tenant shall not xxxx, paint, drill into or in any way deface any part of
the Leased Premises, the Building, the Common Facilities or the Property. No
boring, cutting or stringing of wires shall be permitted, except with the prior
written consent of the Landlord, and as the Landlord may direct. Linoleum and
other resilient floor coverings shall be laid so that the same shall not come in
direct contact with the floor of the Leased Premises; and if linoleum or other
resilient floor coverings are desired, an interlining of builder's deadening
felt shall be first affixed to the floor by a paste or
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other material that is, and will remain, soluble in water. The use of cement or
other adhesive material that either is not, or will not remain, soluble in water
is prohibited.
8. No bicycles, vehicles, animals, reptiles, fish or birds of any kind shall be
brought into or kept in or about the Leased Premises.
9. No noise including, without limiting the generality of the foregoing, music
or the playing of musical instruments, recordings, radio or television which, in
the reasonable judgment of Landlord, might disturb tenants of Other Leased
Premises shall be made or permitted by the Tenant. Nothing shall be done or
permitted in the Leased Premises by the Tenant which would impair or interfere
with the use or enjoyment of Other Leased Premises by any tenant thereof.
Nothing shall be thrown out of the doors, windows or skylights or down the
passageways of the Building.
10. The Tenant shall not manufacture any commodity, or prepare or dispense any
foods or beverages, tobacco, flowers or other commodities or articles without
the prior written consent of the Landlord.
11. Duplicates of keys and passes distributed to the Tenant by the Landlord
shall not be made. The Tenant shall provide appropriate security for keys.
Nothing shall be done to render any lock inoperable by the Building Grand Master
Key. No lock shall be installed without the Landlord's prior written consent;
and any lock so installed shall be operable by the Building Grand Master Key.
Upon termination of the Term, all keys, passes and duplicates provided by the
Landlord to the Tenant, or otherwise procured by the Tenant, shall be returned
to the Landlord. Any failure to comply with the foregoing which requires changes
in locks, new or additional keys, passes or duplicates or other services of a
locksmith shall be paid by the Tenant.
12. All deliveries and removals, and the carrying in or out of any safes,
freight, furniture, packages, boxes, crates or any other object or matter of any
description shall take place during such hours, in such manner and in such
elevators and passageways as the Landlord may determine from time to time. The
Landlord reserves the right to inspect all objects and matter being brought into
the Building or the Common Facilities and to exclude from the Building and the
Common Facilities all objects and matter that violates any of these Building
Rules and Regulations or that are contraband. The Landlord may (but shall not be
obligated to) require any person leaving the Building or the Common Facilities
with any package or object or matter from the Leased Premises to establish his
authority from the Tenant to do so. The establishment and enforcement of such a
requirement shall not impose any responsibility on the Landlord for the
protection of the Tenant against the removal of property from the Leased
Premises. The Landlord shall not be liable to the Tenant for damages or loss
arising from the admis sion, exclusion or ejection of any person to or from the
Leased Premises or the Building or the Common Facilities under this rule.
13. The Tenant shall not place any object in any portion of the Building that is
in excess of the safe carrying or designed load capacity of the structure.
14. The Landlord shall have the right to prohibit any advertising or display of
any identifying sign by the Tenant which in the Landlord's judgment tends to
impair the reputation of the Building or its desirability; and, on written
notice from the Landlord, the Tenant shall refrain from or discontinue such
advertising or display of such identifying sign.
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15. The Landlord reserves the right to exclude from the Building and the Common
Facilities during hours other than Regular Business Hours all persons who do not
present a pass thereto signed by both the Landlord and the Tenant. All persons
entering or leaving the Building or the Common Facilities during hours other
than Regular Business may be required to sign a register. The Landlord will
furnish passes to persons for whom the Tenant requests same in writing. The
establishment and enforcement of such a requirement shall not impose any
responsibility on the Landlord for the protection of the Tenant against
unauthorized entry of persons.
16. The Tenant, before closing and leaving the Leased Premises at any time shall
see that all lights and appliances generating heat (other than the heating
system) are turned off. All entrance doors to the Leased Premises shall be left
locked by the Tenant when the Leased Premises are not in use. At any time when
the Building or the Common Facilities are locked during hours other than Regular
Business Hours, the Building and the Common Facilities locks shall not be
defeated by any means, such as by leaving a door ajar.
17. No person shall go upon the roof of the Building without the prior written
consent of the Landlord.
18. Any requirements of the Tenant may be attended to only upon application at
the office of the Building. The Landlord and its agents shall not perform any
work or do any work or do anything outside of the Landlord's obligations under
the Agreement except upon special instructions from the Landlord on terms
acceptable to the Landlord and the Tenant.
19. Canvassing, soliciting and peddling in the Building and the Common
Facilities are prohibited and the Tenant shall cooperate to prevent same.
20. There shall not be used in any space, or in the public halls or other Common
Facilities of the Building, in connection with the moving or delivery or receipt
of safes, freight, furniture, packages, boxes, crates, paper, office material,
or any other matter or thing, any hand trucks or dollies except those equipped
with rubber tires, side guards and such other safeguards as the Landlord shall
require. No hand trucks shall be used in passenger elevators, and no passenger
elevators shall be used for the moving, delivery or receipt of the
aforementioned articles. In connection with moving in or out any furniture,
furnishings, equipment, heavy articles and heavy packages, the Tenant shall take
such precautions as may be necessary to prevent excessive wear and tear in the
Building's Common Facilities and the Leased Premises including, without limiting
the generality of the foregoing, floor and wall treatments.
21. The Tenant shall not cause or permit any odors of cooking or other processes
or any unusual or objectional odors to emanate from the Leased Premises which
might constitute a Nuisance. No cooking shall be done in the Leased Premises
other than as specifically permitted in the Agreement.
22. The Landlord reserves the right not to enforce any Building Rule or
Regulation against any tenants of Other Leased Premises. The Landlord reserves
the right to rescind, amend or waive any Building Rule and Regulation when, in
the Landlord's reasonable judgment, it appears necessary or desirable for the
reputation, safety, care or appearance of the Building or the preservation of
good order therein or the operation of the Building or the comfort of tenants or
others in the Building. No rescission, amendment or waiver of any Building Rule
and Regulation in favor of one tenant shall operate as a rescission, amendment
or waiver in favor of any other tenant.
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EXHIBIT E
DEFINITIONS AND INDEX OF DEFINITIONS
In accordance with section 1 of the Agreement of which this exhibit is a part,
throughout the Agree ment the following terms and phrases shall have the
meanings set forth or referred to below:
1. "Additional Rent" means all amounts, other than Basic Rent and any
Security Deposit, required to be paid by the Tenant to the Landlord
in accordance with this Agreement.
2. "Agreement" means this Lease and Lease Agreement (including exhibits),
as it may have been amended.
3. "Annual Amortized Capital Expenditure" means the payment amount
determined as an annuity in arrears using the cost incurred by the
Landlord for any Capital Expenditure as the present value, the number
of years of its useful life (not exceeding 10 years) selected by the
Landlord in accordance with generally applied real estate accounting
practice as the number of periods and the Base Rate in effect when the
respective improvement is first placed into service plus two additional
percentage points as the annual rate of interest.
4. "Base Rate" means the prime commercial lending rate per year as
announced from time to time by The Chase Manhattan Bank (National
Association) at its principal office in New York City.
5. "Base Year" means the full calendar year 1997 with respect to
Operational Expenses and Taxes.
6. "Base Year Operational Expenses" means actual Operational Expenses
incurred by the Landlord during the Base Year.
7. "Base Year Taxes" means the product of the final assessed value, as the
same may subsequently be adjusted in any appeal of the tax assessor's
valuation, of the Property, the Building and any other improvements on
the Property in the Base Year and the Municipality's lowest tax rate
for office buildings and the property on which they stand in effect
during the Base Year.
8. "Basic Rent" is defined in subsection 3.2 of this Agreement.
9. "Building" means the office building erected on the Property which is
commonly known as 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, as
it may, in the Landlord's sole discretion, be increased, decreased,
modified, altered or otherwise changed from time to time before, during
or after the Term. As the Building is presently constructed it consists
of 149,043 gross rentable square feet of floor space.
10. "Capital Expenditure" is defined in subsection 10.3 of this Agreement.
11. "Commencement Date" is defined in section 4 of this Agreement.
12. "Common Facilities" means the areas, facilities and improvements
provided by the Landlord in the Building (except the Leased
Premises and the Other Leased Premises)and on the Property, including,
without limiting the generality of the foregoing, the Parking
Facilities and driveways on the Property, for non-exclusive use by
the Tenant in accordance with subsection 2.2 of this Agreement, as
they may, in the Landlord's sole discretion, be increased,
decreased, modified, altered or otherwise changed from time to time
before, during or after the Term, and subject to rights which may be
granted to the major tenant to utilize the lobby as a common
reception area.
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13. "Common Walls" means those walls which separate the Leased Premises
from Other Leased Premises.
14. "Electric Charges" means all the supplying utility's charges for, or in
connection with, furnishing electricity including charges determined by
actual usage, any seasonal adjustments, demand charges, energy charges,
energy adjustment charges and any other charges, howsoever denominated,
of the supplying utility, including sales and excise taxes and the
like.
15. "Event of Default" is defined in section 22 of this Agreement.
16. "Expiring Term" means, when used in the context of any Option to Renew,
the Term as it is then scheduled to expire (immediately prior to
exercise of the next available Option to Renew).
17. The Tenant's "Guests" shall mean the Tenant's licensees, invitees and
all others in, on or about the Leased Premises, the Building, the
Common Facilities or the Property, either at the Tenant's express or
implied request or invitation or for the purpose of soliciting or
visiting the Tenant.
18. A "History of Recurring Events of Default" means the occurrence of
three or more Events of Default (whether or not cured by the Tenant) in
any period of 12 months.
19. "Holdover Damages" is defined in subsection 23.4 of this Agreement.
20. The "Index" means the "all items" index figure for the New York
Northeastern New Jersey average of the Consumer Price Index for all
urban wage earners and clerical workers which uses a base period of
1982-84=100, published by the United States Department of Labor, so
long as it continues to be published. If the Index is not published
for a period of three consecutive months, or if its base period is
changed, the term "Index" shall mean that index, as nearly equivalent
in purpose, function and coverage as practicable to the original
Index, which the Landlord shall have designated by notice to the
Tenant.
21. "Initial Term" means the period so designated in subsection 4.1 of this
Agreement.
22. "Initial Year" means the first 12 full calendar months of the Initial
Term.
23. "Landlord" means the person so designated at the beginning of this
Agreement and those successors to the Landlord's interest in the
Property and/or the Landlord's rights and obligations under this
Agreement contemplated by section 26 of this Agreement.
24. "Leased Premises" means that portion of the interior of the Building
(as viewed from the interior of the Leased Premises) bounded by the
interior sides of the unfinished floor and the finished ceiling on the
first floor (as the floors have been designated by the Landlord) of
the Building, the centers of all Common Walls and the exterior sides
of all walls other than Common Walls, the outline of which floor space
is designated on the diagram set forth in Exhibit A attached hereto,
which portion contains 3,336 square feet of usable floor space and
3,970 square feet of gross rentable floor space; and references within
this Agreement to the gross rentable floor space and the usable floor
space, respectively, of the Leased Premises shall mean the respective
quantities herein specified.
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25. "Legal Holidays" means New Year's Day, Presidents' Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
26. "Market Rental Rate" means, at the time of reference, the gross
rentable floor space of the Leased Premises multiplied by the greater
of: (a) that annual rate of Basic Rent per square foot of gross
rentable floor space which is then being quoted by the Landlord for
comparable Other Leased Premises (or would then be quoted if comparable
Other Leased Premises were then available) or (b) that annual rate of
Basic Rent per square foot of gross rentable floor space in effect
during the Expiring Term.
27. "Municipality" means the Township of West Windsor in Xxxxxx County, New
Jersey, or any successor municipality with jurisdiction over the
Property.
28. "No Pass Through Period" means, in the context of Operational Expenses
and Taxes, the period beginning on the Commencement Date and ending on
December 31, 1997.
29. "Nuisance" means any condition or occurrence which unreasonably or
materially interferes with the authorized use and enjoyment of the
Other Leased Premises and the Common Facilities by any tenant of Other
Leased Premises or by any person authorized to use any Other Leased
Premises or Common Facilities or with the authorized use of any other
areas, buildings or other improvements in the Carnegie Center Complex.
30. "Operational Expenses" is defined in subsection 10.2 of this
Agreement.
31. "Option to Renew" is defined in subsection 6.1 of this Agreement.
32. "Other Leased Premises" means all premises within the Building, with
the exception of the Leased Premises, that are, or are available to
be, leased to tenants or prospective tenants, respectively.
33. "Parking Facilities" means the parking area adjacent to the Building,
containing the approxi mate number of lined parking spaces set forth in
the Work Letter, which parking area is provided as Common Facilities
34. "Person" includes an individual, a corporation, a partnership, a trust,
an estate, an unincorpo rated group of persons and any group of
persons.
35. "Property" means the parcel of land, as it may, in the Landlord's sole
discretion, be increased, decreased, modified, altered or otherwise
changed from time to time before, during or after the Term, on which
the Building is (or is about to be) erected. As the Property is
presently constituted, it is more particularly described in Exhibit B
attached hereto.
36. "Regular Business Hours" means 8:00 A.M. to 6:00 P.M., Monday through
Friday, except on Legal Holidays.
37. "Re-Leasing Damages" is defined in subsection 23.3.
38. "Renewal Term" means, at the time of reference, any portion of the
Term, other than the Initial Term, as to which the Tenant has properly
exercised an Option to Renew which Option to Renew has not been
rescinded in accordance with subsection 6.4.1 of this Agreement.
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39. "Rent" means Basic Rent and Additional Rent.
40. "Security Deposit" is designated in section 29 of this Agreement.
41. "Target Date" means, upon execution and delivery of this Agreement, the
then estimated Commencement Date which is hereby established to be
August 1, 1997.
42. "Taxes" means, in any calendar year, the aggregate amount of real
property taxes, assess- ments and sewer rents, rates and charges,
state and local taxes, transit taxes and every other govern mental
charge, whether general or special, ordinary or extraordinary (except
corporate franchise taxes and taxes imposed on, or computed as a
function of, net income or net profits from all sources and except
taxes charged, assessed or levied exclusively on the Leased Premises
or arising exclusively from the Tenant's occupancy of the Leased
Premises) charged, assessed or levied by any taxing authority with
respect to the Property, the Building, the Common Facilities and any
other improvements on the Property and an allocable portion of Taxes
with respect to other portions of the Carnegie Center Complex, less
any refunds or rebates (net of expenses incurred in obtaining any such
refunds or rebates) of Taxes actually received by the Landlord during
such calendar year with respect to any period during the Term for the
benefit of the Tenant, tenants of Other Leased Premises and the
Landlord. If during the Term there shall be a change in the means or
methods of taxing real property generally in effect at the beginning
of the Term and another type of tax or method of taxation should be
substituted in whole or in part for, or in lieu of, Taxes, the amounts
calculated under such other types of tax or by such other methods of
taxation shall also be deemed to be Taxes. Until such time as the
actual amount of Taxes for any calendar year becomes known, the amount
thereof shall be the Landlord's estimate of Taxes for that calendar
year.
43. "Tenant" means the person so designated at the beginning of this
Agreement.
44. "Tenant Electric Charges" means (a) during Regular Business Hours,
Electric Charges attributable to the Tenant's use of electricity in
the Leased Premises for purposes other than heating, ventilation and
air conditioning provided to the Leased Premises by the Landlord in
accordance with subsection 8.2.4 of this Agreement and (b) during
other than Regular Business Hours, a charge at the rate of $75.00 per
hour or partial hour of use plus Electric Charges attributable to the
Tenant's use of electricity in the Leased Premises for all purposes
including, without limiting the generality of the foregoing, heating,
ventilation and air conditioning.
45. "Tenant's Share" of any amount means 2.664%.
46. "Term" means the Initial Term plus, at the time of reference, any
Renewal Term.
47. "Termination Damages" is defined in subsection 23.2 of this Agreement.
48. "Traffic Plan" is defined in subsection 7.3 of this
Agreement."Utilities Expenses" means Electric Charges (other than
Tenant Electric Charges) and all charges for any other fuel that may
be used in providing electricity and services powered by electricity
that the Landlord provides in accordance with section 8 of this
Agreement to the Building, the Leased Premises, Other Leased Premises,
the Common Facilities and the Property, including sales and excise
taxes and the like.
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49. "Utilities Expenses" means Electric Charges (other than Tenant Electric
Charges) and all charges for any other fuel that may be used in
providing electricity and services powered by electricity that the
Landlord provides in accordance with section 8 of this Agreement to the
Building, the Leased Premises, Other Leased Premises, the Common
Facilities and the Property, including sales and excise taxes and the
like.
50. "Work Letter" means Exhibit C attached hereto which generally describes
the type of construc tion of the Building and, unless the Tenant Plan
does not require any such respective improve ment, those improvements
the Landlord will provide or install in the Leased Premises without
installation charge to the Tenant in connection with the preparation of
the Leased Premises contemplated by section 5 of this Agreement.
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EXHIBIT F
STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA
FORM OF ESTOPPEL CERTIFICATE
STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Gentlemen:
This instrument is being furnished to State Mutual Life Assurance Company of
America ("Lender") by ------------------- ("Tenant"), which is the tenant under
a lease (the "Lease") dated --------------- from CARNEGIE 214 ASSOCIATES LIMITED
PARTNERSHIP ("Landlord"), pertaining to and covering a portion, as such portion
is specifically described in the Lease (the "Demised Premises"), of that real
estate commonly designated as 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx Xxxxxx, Xxx
Xxxxxx (the "Property" or "Building"), such real estate being more specifically
described in Exhibit "A" attached hereto.
As an inducement to Lender to make a loan (the "Loan") as permanent financing
for the Property, with the intention of having Lender rely thereon, and for
other good and valuable consideration, Tenant hereby warrants and represents to
Lender and agrees with Lender as follows:
(a) That the Lease has not been amended or modified, except as follows:
and is in ------------------------- full force and effect as
originally executed or as so amended, whichever is appropriate, and
that neither Landlord nor the Tenant is in default in any respect
under any terms of the Lease;
(b) The commencement date of the term of the Lease was ------------, and
the term of the Lease will expire on ------------- , unless extended
or sooner terminated as provided in the Lease;
(c) That Tenant is in possession of the Demised Premises and that Landlord
has complied fully and completely with all of Landlord's covenants,
warranties and other undertakings and obligations under the Lease to
this date, including, without limitation, those with respect to (i)
the construction, character, condition and location of the Demised
Premises; (ii) improvements, tenant's spaces and the common areas
situated on the Property; (iii) other tenancies, occupancies, stores
or businesses on the Property; (iv) any property adjacent to the
Property; (v) parking and access; and (vi) the provision of
maintenance and services under the Lease, with the result that Tenant
is fully obligated to pay, and is paying, the rent and other charges
due thereunder, and is fully obligated to perform, and is performing,
all of the other obligations of Tenant under the Lease without current
claim or counterclaim, offset, defense or otherwise;
(d) That Tenant has not and will not make any prepayment of rental under
the Lease for more than one (1) month in advance of the due date
thereof, and that there are currently no offsets, defenses,
counterclaims or credits against the rentals due thereunder;
(e) That Tenant has not received notice and has no knowledge of any
assignment, hypothecation or pledge of the rents or of Landlord's
interest under the Lease other than ----------------.
(f) That Tenant understands and acknowledges that (i)Landlord shall
execute a conditional assignment of the Lease in favor of Lender; (ii)
notwithstanding said assignment, all rental payments under the Lease
shall be paid as heretofore stated and in accordance with the terms of
the Lease until and unless Tenant is notified to the contrary in
writing by Lender; (iii) under the conditions of said assignment and
after the date thereof, it is expressly agreed that, unless the
written consent of Lender be first obtained, no rents are to be
collected more than one month in advance of the due date thereof, and
no alterations, modification, amendments, terminations, waivers,
consents, approvals or other actions whatsoever are to be made or
become effective with respect to the Lease except as permitted under
the terms of said conditional assignment; and (iv) the interest of the
Landlord in the Lease shall be assigned to Lender solely as additional
security for said Loan and Lender assumes no duty, liability or
obligation under the Lease, either by virtue of said assignment, the
exercise of remedies thereunder, or by any subsequent receipt or
collection of rents thereunder or any other sums due under the terms
of the Lease;
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(g) That Lender shall not be (i) liable for any action or omission of any
person or party who may be Landlord under the Lease prior to your
acquisition of title to the Property by foreclosure or otherwise; (ii)
subject to any offsets or defenses which Tenant may have against any
such prior Landlord; or (iii) liable for the return of any security
deposit unless Lender actually receives such deposit;
(h) That Tenant has not subordinated by separate written instrument its
interest under the Lease to any mortgage, deed of trust or other lien
on title to the Property.
(i) That Tenant has paid in full for all labor and materials and other
services in connection with Tenant's construction work and Tenant's
other work in the Demised Premises, so that no lien by reason thereof
may attach against the Landlord's interest in the Demised Premises or
the Property of which they are a part and that Tenant, to the extent
required by the terms of the Lease, has been fully reimbursed by
Landlord for all improvements made by Tenant to the Demised Premises.
(j) In consideration of the premises and other good and valuable
consideration to the Tenant by Lender, the receipt and sufficiency of
which are hereby acknowledged, Tenant further agrees with Lender as
follows: In the event of any default by Landlord under the Lease,
Tenant shall promptly send to Lender at the address hereinabove set
forth a copy of any notice of such default sent to Landlord, in the
same manner as such notice to Landlord is sent, and in such event and
prior to the exercise by Tenant of any of its rights or remedies under
the Lease or otherwise with respect to such default, Lender shall be
permitted to cure such default within the period of time during which
Landlord would be permitted to cure such default as set forth in the
Lease.
(k) Tenant agrees that, with respect to any successor to Landlord's
interest in the Property, to look solely to such successor's interest
in the Property for recovery of any judgment from such successor to
Landlord; it being specifically agreed that no successor to Landlord's
interest in the Property shall ever be personally liable for any such
judgment.
(l) This Certificate shall inure to the benefit of Lender, its successors
and assigns, and shall be binding upon Tenant and Tenant's heirs,
legal representatives, successors and assigns. This Certificate shall
not be deemed to alter or modify any of the terms, conditions,
covenants or obligations of the Lease, except to the extent, if any
specifically set forth herein.
EXECUTED this ________ day of ____________________, 19__.
ATTEST:
______________________________ BY:___________________________
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