Exhibit 10.9
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AMENDED AND RESTATED
LEASE
SOUTH BRUNSWICK INVESTORS, L.P.
LANDLORD
and
INTERNATIONAL BUSINESS MACHINES CORPORATION
TENANT
Dated: August 11, 1995
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TABLE OF CONTENTS
Page
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BASIC LEASE INFORMATION................................................. -1-
PARTIES................................................................. -1-
INTRODUCTION............................................................ -1-
ARTICLE ONE
PREMISES........................................................... -1-
Section 1.01. LEASE OF PREMISES.............................. -1-
Section 1.02. LEASED PREMISES................................ -1-
Section 1.03. COMMON BUILDINGS FACILITIES.................... -2-
ARTICLE TWO
TERM............................................................... -2-
Section 2.01. INITIAL TERM................................... -2-
Section 2.02. [Intentionally Omitted]........................ -2-
Section 2.03. EXTENDED TERM.................................. -2-
Section 2.04. EARLY TERMINATION IN EXTENDED TERM............. -3-
Section 2.05. TERM OF THIS LEASE............................. -3-
ARTICLE THREE
RENT AND ADDITIONAL RENT........................................... -3-
Section 3.01. ANNUAL RENT.................................... -3-
Section 3.02. EXTENDED TERM RENT............................. -3-
Section 3.03. ADDITIONAL RENT................................ -3-
Section 3.04. OPERATING EXPENSES............................. -4-
Section 3.05. REAL ESTATE TAXES.............................. -8-
Section 3.06. ADJUSTMENT TO FIXED ANNUAL RENT................ -9-
Section 3.07. COMPUTATION AND BILLING........................ -10-
Section 3.08. TAX CONTEST.................................... -11-
Section 3.09. PLACE FOR PAYMENT.............................. -12-
ARTICLE FOUR
ACCEPTANCE......................................................... -12-
ARTICLE FIVE
LANDLORD'S TITLE................................................... -12-
Section 5.01. LANDLORD'S REPRESENTATIONS REGARDING TITLE
AND USE........................................ -12-
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ARTICLE SIX
SERVICES........................................................... -12-
Section 6.01. SERVICES PROVIDED BY LANDLORD.................. -12-
Section 6.02. LANDLORD'S FAILURE TO PROVIDE SERVICES......... -14-
ARTICLE SEVEN
PARKING............................................................ -14-
Section 7.01. TENANT'S PARKING SPACES........................ -14-
Section 7.02. VISITORS' SPACES............................... -14-
ARTICLE EIGHT
USE OF LEASED PREMISES............................................. -14-
Section 8.01. GENERAL USES................................... -14-
Section 8.02. SPECIAL USES................................... -14-
ARTICLE NINE
REPAIRS AND MAINTENANCE............................................ -15-
Section 9.01. LANDLORD'S REPAIRS............................. -15-
Section 9.02. TENANT'S REPAIRS............................... -15-
Section 9.03. LANDLORD'S FAILURE TO MAKE REPAIRS............. -16-
Section 9.04. EMERGENCY REPAIRS.............................. -16-
ARTICLE TEN
FIRE AND OTHER CASUALTY - INSURANCE................................ -16-
Section 10.01. DAMAGE OR DESTRUCTION........................ -16-
Section 10.02. CASUALTY INSURANCE........................... -17-
ARTICLE ELEVEN
INDEMNIFICATION.................................................... -19-
ARTICLE TWELVE
CONDEMNATION....................................................... -19-
Section 12.01. TAKING - LEASE ENDS.......................... -19-
Section 12.02. TAKING - LEASE CONTINUES..................... -19-
Section 12.03. TEMPORARY TAKING............................. -20-
Section 12.04. LANDLORD'S AWARD............................. -20-
Section 12.05. TENANT'S AWARD............................... -20-
Section 12.06. RESTORATION BY LANDLORD...................... -20-
Section 12.07. DEFINITIONS.................................. -20-
ARTICLE THIRTEEN
ALTERATIONS AND IMPROVEMENTS....................................... -20-
Section 13.01. TENANT'S CHANGES - NO APPROVAL............... -20-
Section 13.02. TENANT'S CHANGES - LANDLORD'S APPROVAL....... -21-
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Section 13.03. TENANT'S OWNED PROPERTY...................... -21-
Section 13.04. REMOVAL OF TENANT'S OWNED PROPERTY........... -22-
Section 13.05. LANDLORD'S CHANGES - TENANT'S APPROVAL....... -22-
ARTICLE FOURTEEN
LANDLORD'S ACCESS.................................................. -22-
ARTICLE FIFTEEN
COMPLIANCE WITH LAWS............................................... -22-
Section 15.01. TENANT'S COMPLIANCE WITH LAWS................ -22-
Section 15.02. LANDLORD'S COMPLIANCE WITH LAWS.............. -22-
ARTICLE SIXTEEN
SURRENDER OF POSSESSION............................................ -23-
ARTICLE SEVENTEEN
SIGNS.............................................................. -24-
Section 17.01. TENANT'S SIGNS............................... -24-
Section 17.02. PROJECT SIGN AND NAME........................ -24-
Section 17.03. LIMITATIONS ON LANDLORD'S RIGHTS............. -24-
Section 17.04. COMPLIANCE WITH LAWS......................... -24-
ARTICLE EIGHTEEN
SUBORDINATION AND NON-DISTURBANCE.................................. -24-
ARTICLE NINETEEN
MECHANICS' LIENS................................................... -25-
ARTICLE TWENTY
[INTENTIONALLY OMITTED]............................................ -25-
ARTICLE TWENTY-ONE
[INTENTIONALLY OMITTED]............................................ -25-
ARTICLE TWENTY-TWO
TENANT'S SECURITY.................................................. -25-
Section 22.01. LIMITED RESTRICTIONS AGAINST OTHER TENANTS.... -25-
Section 22.02. INCLUSION OF RESTRICTION IN OTHER LEASES AND
SUBLEASES..................................... -26-
Section 22.03. ADVANCE CONSULTATION WITH TENANT.............. -26-
ARTICLE TWENTY-THREE
[INTENTIONALLY OMITTED]............................................ -26-
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ARTICLE TWENTY-FOUR
DEFAULT............................................................ -26-
Section 24.01. TENANT'S DEFAULT............................. -26-
Section 24.02. DEFAULT BY LANDLORD.......................... -30-
ARTICLE TWENTY-FIVE
HOLDOVER........................................................... -31-
ARTICLE TWENTY-SIX
NOTICES............................................................ -31-
ARTICLE TWENTY-SEVEN
ASSIGNMENT AND SUBLETTING.......................................... -32-
Section 27.01. ASSIGNMENT OR SUBLEASE....................... -32-
Section 27.02. LIABILITY OF IBM............................. -32-
ARTICLE TWENTY-EIGHT
EQUAL EMPLOYMENT OPPORTUNITY....................................... -32-
ARTICLE TWENTY-NINE
QUIET ENJOYMENT.................................................... -33-
ARTICLE THIRTY
WAIVER............................................................. -33-
ARTICLE THIRTY-ONE
PARTIAL INVALIDITY................................................. -33-
ARTICLE THIRTY-TWO
RULES AND REGULATIONS.............................................. -33-
Section 32.01. TENANT'S OBLIGATION.......................... -33-
Section 32.02. STANDARDS APPLICABLE TO LANDLORD............. -34-
Section 32.03. LANDLORD'S ENFORCEMENT....................... -34-
Section 32.04. CONFLICT..................................... -34-
ARTICLE THIRTY-THREE
ESTOPPEL CERTIFICATES.............................................. -34-
Section 33.01. TENANT'S ESTOPPEL CERTIFICATE................ -34-
Section 33.02. LANDLORD'S ESTOPPEL CERTIFICATE.............. -34-
ARTICLE THIRTY-FOUR
EXECUTION OF LEASE................................................. -35-
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ARTICLE THIRTY-FIVE
COUNTERPARTS....................................................... -35-
ARTICLE THIRTY-SIX
ANTENNA............................................................ -35-
ARTICLE THIRTY-SEVEN
BROKER............................................................. -36-
ARTICLE THIRTY-EIGHT
ARBITRATION........................................................ -36-
Section 38.01. APPLICABILITY................................ -36-
Section 38.02. NOTICE AND DEMAND............................ -36-
Section 38.03. SELECTION OF ARBITRATOR...................... -36-
Section 38.04. SCOPE........................................ -37-
ARTICLE THIRTY-NINE
EXCUSABLE DELAY.................................................... -37-
ARTICLE FORTY
MISCELLANEOUS...................................................... -38-
Section 40.01. RULES OF INTERPRETATION...................... -38-
Section 40.02. NO EXCLUSIVE REMEDIES........................ -38-
Section 40.03. PROJECT CONTRACTORS AND SUPPLIERS............ -38-
Section 40.04. GOVERNING LAWS............................... -38-
Section 40.05. NON-DISCLOSURE OF LEASE...................... -38-
ARTICLE FORTY-ONE
MEMORANDUM OF LEASE................................................ -39-
ARTICLE FORTY-TWO
BINDING AGREEMENT.................................................. -39-
ARTICLE FORTY-THREE
ENVIRONMENTAL MATTERS.............................................. -39-
ARTICLE FORTY-FOUR
[INTENTIONALLY OMITTED]............................................ -40-
ARTICLE FORTY-FIVE
[INTENTIONALLY OMITTED]............................................ -40-
ARTICLE FORTY-SIX
ENTIRE AGREEMENT................................................... -40-
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ARTICLE FORTY-SEVEN
TERMINATION OF FIRST LEASE......................................... -40-
SIGNATURE PAGE.......................................................... -41-
EXHIBIT A1 to A4 - Floor Plans of the Leased Premises
EXHIBIT B - Supplemental Agreement
EXHIBIT C - Heat, Ventilation and Air Conditioning Specifications
EXHIBIT D - [Intentionally Omitted]
EXHIBIT E - Building Parking Area
EXHIBIT F - Rules and Regulations
EXHIBIT G - [Intentionally Omitted]
EXHIBIT H - Description of the Land
EXHIBIT I - List of Holidays
EXHIBIT J - [Intentionally Omitted]
EXHIBIT K - Subordination, Attornment and Non-Disturbance Agreement
EXHIBIT L - [Intentionally Omitted]
EXHIBIT M - List of Tenant owned Property
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LEASE
PARTIES
THIS AMENDED AND RESTATED LEASE, made as of August 11, 0000, xxxxxxx
XXXXX XXXXXXXXX INVESTORS, L.P., a Delaware limited partnership having a mailing
address at c/o THE XXXXXXX GROUP, Suite 1105, One Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, hereinafter called "Landlord," and INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York corporation, having its principal office at Xxx
Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, hereinafter called "Tenant."
INTRODUCTION
Landlord and Tenant entered into a Lease dated March 31, 1995 for Tenant's
Lease of certain leased premises located in South Brunswick Township, Middlesex
County, New Jersey (as amended, the "First Lease"). The leased premises are
located upon a parcel of land which Landlord intends to subdivide into three (3)
parcels (the "Subdivision"). Effective immediately upon approval of the
Subdivision by all relevant authorities and the expiration, without appeal by
any party, of the period of time during which such approval may be appealed,
Landlord and Tenant desire that certain amendments to the First Lease shall
automatically take effect and that the First Lease shall be amended and restated
in its entirety, as set forth herein. Therefore, subject to the granting of
final and unappealable approval of the Subdivision, Landlord and Tenant hereby
amend and restate the First Lease in its entirety by entering into this Amended
and Restated Lease.
ARTICLE ONE
PREMISES
Section 1.01. LEASE OF PREMISES. Landlord hereby leases to Tenant, and
Tenant hereby leases from Landlord, upon and subject to the covenants,
agreements, provisions and conditions of this Lease, the Leased Premises.
Section 1.02. LEASED PREMISES.
The Leased Premises shall mean the entirety of buildings numbered one (1)
and three (3), as shown on EXHIBITS A1 to A4 (the "Buildings"), situated on the
plot of land described on EXHIBIT H (the "Land"). The actual rentable area of
the Leased Premises is 200,000 square feet. The Land and all improvements upon
the Land (including the Buildings, Common Buildings Facilities, Buildings
Service Systems, Leased Premises Service Systems and Buildings Parking Area) are
collectively referred to in this Lease as the "Project."
Section 1.03. COMMON BUILDINGS FACILITIES. This Lease includes the right
of Tenant to use the Common Buildings Facilities in common with other tenants of
the Buildings.
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The words "Common Buildings Facilities" shall mean all of the facilities in the
Project designed and intended for use by the tenants of the Buildings in common
with Landlord and each other, including corridors; elevators; fire stairs;
telephone and electric closets; telephone trunk lines and electric risers;
aisles; walkways; truck docks; plazas; the roof and Buildings Parking Area to
the extent not reserved for exclusive use by Landlord or others; courts;
restrooms; service areas; lobbies; landscaped areas, and all other common and
service areas of the Project intended for such use on the date hereof;
excluding, however, (1) that part of the roof of the Buildings licensed for the
exclusive use of Tenant in accordance with Article Thirty-Six, and (2) the
restrooms, lobbies, corridors and telephone and electric closets on floors
leased entirely by Tenant which shall be for the exclusive use of Tenant and
shall not be used in common with other tenants or occupants of the Buildings.
ARTICLE TWO
TERM
Section 2.01. INITIAL TERM. Tenant shall lease the Leased Premises for an
initial term ("Initial Term") commencing on that date upon which approval of the
Subdivision becomes final and unappealable by any party (the "Commencement
Date") and terminating, unless extended or sooner terminated pursuant to the
terms of this Lease, on March 31, 2002. The parties shall enter into a
Supplemental Agreement, in the form marked EXHIBIT B, setting forth the
commencement and expiration dates of the Initial Term. In the event that the
Commencement Date shall not occur prior to June 30, 1996, then this Amended and
Restated Lease shall be null and void and of no force or effect.
Section 2.02. [Intentionally Omitted]
Section 2.03. EXTENDED TERM. Tenant shall have the option to extend the
term of this Lease (i) for the entire Leased Premises, (ii) for only Building 1,
representing approximately 170,000 square feet of the Leased Premises or (iii)
for only Building 3, representing approximately 30,000 square feet, for One (1)
consecutive Five (5) year term (the "Extended Term"). Such option shall be
exercised by written notice to Landlord given at least nine (9) months prior to
the expiration of the Initial Term. The Extended Term shall be upon the same
covenants, agreements, provisions and conditions that are contained herein for
the Initial Term, except that Tenant shall not have any option to extend the
term of this Lease; and provided, further, that if Tenant exercises its option
to lease only Building 3, Tenant shall be responsible, at its sole cost and
expense, for installing in Building 3 any heating, ventilating, air
conditioning, electric, plumbing or other utility or mechanical systems
necessary to enable operation of Building 3 independently of Building 1. The
Annual Rent specified in Section 3.02 shall be payable during the Extended Term.
Section 2.04. EARLY TERMINATION IN EXTENDED TERM. Tenant may, at its
option and without charge, terminate this Lease and the Term as of a date no
earlier than the thirty-seventh (37th) month of the Extended Term as to entire
Leased Premises or only as to
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the entirety of Building 1 or the entirety of Building 3, as Tenant shall elect
in Tenant's notice of termination, by written notice by giving Landlord at least
twelve (12) months prior notice of Tenant's intention to terminate on a date
specified in the notice no earlier than the thirty-seventh (37th) month of the
Extended Term. If requested by Landlord, the parties shall enter into a
cancellation and release agreement, in a form reasonably acceptable to both
parties, confirming the end of the Term. This Lease and the Term shall come to
an end on the date no earlier than the thirty-seventh (37th) month of the
Extended Term specified by Tenant in Tenant's notice with the same force and
effect as if the Term was, in and by the provisions hereof, fixed to expire on
such date and not on the date in this Lease provided. Tenant's option to
terminate the Extended Term shall expire at the end of the forty-eighth (48th)
month of the Extended Term.
Section 2.05. TERM OF THIS LEASE. The word "Term" and the words "term of
this Lease" shall mean the Initial Term and any Extended Term which may become
effective.
ARTICLE THREE
RENT AND ADDITIONAL RENT
Section 3.01. ANNUAL RENT. Commencing on the Commencement Date and
subject to the provisions of this Lease, Tenant shall pay the Annual Rent ("the
Annual Rent") of One Million Seven Hundred Thousand Dollars ($1,700,000) payable
in equal monthly installments in advance of One Hundred Forty-One Thousand Six
Hundred Sixty-Six and 67/100 Dollars ($141,666.67) on the first day of each
calendar month during the Term. The Annual Rent has been calculated at the
annual rate of Eight and 50/100 Dollars ($8.50) per square foot of rentable
area. Rent for any period of less than one month shall be apportioned based on
the number of days in that month. Tenant will pay the Annual Rent and
Additional Rent to Landlord at Xxxxx 0000, Xxx Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000 or to such other person or at such other place as Landlord
may designate in writing.
Section 3.02. EXTENDED TERM RENT. The Annual Rent for the Premises for
the Extended Term shall be Eight and 50/100 Dollars ($8.50) per square foot of
rentable area.
Except as set forth in this Article III, the leasing of the Premises for
the Extended Term shall be upon the same covenants, agreements, provisions and
conditions of this Lease as are in effect on the date immediately prior to the
date the Extended Term begins.
Section 3.03. ADDITIONAL RENT. In addition to Annual Rent, Tenant shall
pay Additional Rent ("Additional Rent") which shall mean all sums of money
payable by Tenant under this Lease other than Annual Rent. All Annual Rent and
Additional Rent shall be paid by Tenant without offset, deduction or abatement,
except abatement otherwise specifically provided in this Lease.
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Section 3.04. OPERATING EXPENSES. Tenant shall pay as Additional Rent the
total amount of annual Operating Expenses for each Operating Expense Year.
Ninety (90) days prior to any Operating Expense Year, the Landlord shall provide
Tenant with a complete and itemized, estimated budget (the "Budget") of the
estimated Operating Expenses for the year. Payments of Operating Expenses shall
be made by the Tenant to the Landlord in twelve (12) equal monthly installments
paid on the first day of each month during the Operating Year based on the
Operating Expenses shown in the Budget. Within forty-five (45) days after both
the end of the first six months of an Operating Year (the "Semi-Annual Portion")
and after the end of each Operating Expense Year, Landlord shall provide Tenant
the Landlord's Statement as described in Section 3.07.
(a) The words "Operating Expenses" shall mean the operating costs
specified below in Paragraph A which are actually incurred by Landlord in the
Operating Expense Year to the extent they are properly allocable (in accordance
with generally accepted accounting principles and practices consistently
applied) to the operation, repair and maintenance of the Project. Operating
Expenses shall exclude items billed and paid directly by Tenant.
(b) The words "Operating Expense Year" shall mean the twelve month period
beginning on the Commencement Date and each succeeding twelve month period
during the term.
A. ITEMS INCLUDED IN OPERATING EXPENSES:
(1) salaries, wages, including Landlord's employment taxes (such as FICA
and unemployment) and benefits paid to employees (such as medical insurance) and
all other expenses incurred for the employment of the Buildings operating
personnel, excluding Landlord's officers and partners and headquarters and
administrative and accounting staff;
(2) the cost of materials and supplies;
(3) the cost of replacements for tools and maintenance equipment (such
equipment shall not include air conditioning equipment, boilers, elevators or
any items of a capital nature; all tools and maintenance equipment purchased
during the first year of full occupancy of the Buildings shall be considered
capital items.);
(4) amounts paid by Landlord to independent contractors for services
(including full or part-time labor) and materials;
(5) water charges and sewer rents;
(6) the cost of repainting or otherwise redecorating any part of Common
Buildings Facilities;
(7) the cost of telephone service, postage, office supplies, maintenance
and repair
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of office equipment and similar charges related to operation of the Buildings;
(8) premiums for insurance purchased by Landlord pursuant to Subsection
10.02(a), subject to Paragraph B, subparagraph (11) below;
(9) management fee for administration, such fee being two percent (2%) of
the Annual Rent and Operating Expenses allocated to the Tenant;
(10) all costs and expenses (other than those of a capital nature) of
maintaining, repairing and replacing paving, curbs, walkways and landscaping,
including snow removal;
(11) the cost of electricity, steam and fuel used to ventilate, heat, light
and air condition tenant space and for the Common Buildings Facilities,
including fuel for emergency generators (excluding utilities separately metered
to tenants); cost of installing and replacing light bulbs, tubes and ballasts in
the Common Buildings Facilities and Buildings Parking Area;
(12) the cost of normal maintenance and preventive maintenance of
mechanical and electrical equipment, including plumbing, sprinklers, heating,
ventilating and air conditioning and elevator equipment, but excluding capital
expenditures (If because of guarantees, warranties or any other reasons, all of
such costs are not incurred within the Operating Expense Year, the Operating
Expense Year will only include those costs actually incurred. The remaining
costs shall be charged in the following operating expense year (s) when actually
incurred;
(13) the cost of providing services by Landlord in Article Six;
(14) the cost of general security for the site and grounds (apart from
security into and within each of the Buildings which shall be provided by
Tenant);
(15) the cost of janitorial supplies and services, window cleaning;
(16) the cost of trash removal, including confidential waste and recycling;
(17) the cost of emergency generators, excluding those for computer rooms;
(18) the cost of an on site office and segregated storage area ("Landlord's
Space") for Landlord's parts, tools, supplies (the Landlord's Space shall be
designated at the inception of the Lease and, if located within the Leased
Premises, may be relocated to any other available location other than the Leased
Premises reasonably acceptable to Tenant and Landlord on three (3) months prior
notice) (as long as Landlord's Space is located in the Leased Premises and
Tenant in paying rent for such Landlord's Space, such rent shall be excluded
from Operating Expense);
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(19) the cost of maintenance and repair designated in Section 9.01 (1),
(2), (3), and (4) (excluding such items considered Capital Improvements);
(20) cost of removal of asbestos containing material in connection with
maintenance, repair or restoration of mechanical systems;
(21) all other costs incurred by Landlord, not otherwise designated in this
Lease but reasonably related to the operation, repair and maintenance of the
Project.
(22) the costs of improvements (if any) required within the Leased Premises
to comply with the provisions of the federal American with Disabilities Act, as
amended, and any similar New Jersey requirements (such costs and improvements
shall not be considered Capital Improvements under this Lease)
Operating Expenses shall be reduced by the amounts of any reimbursement,
refund or credit received or receivable by Landlord with respect to any item of
Operating Expenses. If any such reimbursement, refund or credit is received or
receivable by Landlord in a later Operating Expense Year, it shall be applied
against the Operating Expenses for such later Operating Expense Year; and, if
the Term has expired, such item shall be promptly refunded by Landlord to
Tenant.
B. ITEMS EXCLUDED FROM OPERATING EXPENSES:
(1) [Intentionally Omitted.]
(2) the cost of any work performed (such as preparing a tenant's space for
occupancy, including painting and decorating) or services provided (such as
separately metered electricity) for any tenant at such tenant's cost, or
furnished by Landlord without charge as an inducement to lease (such as free
rent or improvement allowances); it is understood and agreed that Landlord is
not furnishing to Tenant any of the work or services described in this
Section 3.04 B (2) in connection with Tenant's occupancy under this Lease.
(3) the cost of installing, operating and maintaining any specialty
service, such as an observatory, broadcasting facility, luncheon club, retail
store, sundry shop, newsstand, concession, or athletic or recreational club;
(4) the cost of removal of asbestos-containing material not related to
repair, maintenance or restoration of mechanical equipment as referenced in
3.04 A (20);
(5) salaries of Landlord's officers and partners and its headquarters
staff;
(6) the cost of any work performed or service provided for any tenant of
the Buildings (other than Tenant) to a materially greater extent or in a
materially more favorable manner than that furnished generally to the other
tenants and occupants;
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(7) the cost of any work performed or service provided (such as
electricity) for any facility other than the Buildings (such as a garage) for
which fees are charged;
(8) the cost of any items for which Landlord is reimbursed by insurance
proceeds, condemnation awards, a tenant of the Project, or otherwise;
(9) the cost of any additions to the Project, or Operating Expenses
generated by such additions, after the date of this Lease;
(10) the cost of any repairs, alterations, additions, changes, replacements
and the like which under generally accepted accounting principles and practices
are properly classified as capital expenditures;
(11) the cost of any repair made in accordance with Articles Ten and Twelve
of this Lease entitled "Fire and Other Casualty - Insurance" and "Condemnation";
(12) insurance premiums to the extent any tenant other than Tenant causes
Landlord's existing insurance premiums to increase or requires Landlord to
purchase additional insurance;
(13) interest and principal payments on any debt, depreciation, and rental
under any ground lease or other underlying lease;
(14) any real estate brokerage commissions or other costs incurred in
procuring tenants, or any fee in lieu of commission;
(15) any advertising expenses;
(16) any costs representing an amount paid to a related or affiliated
person of Landlord which is in excess of the amount which would have been paid
in the absence of such relationship;
(17) payments for rented equipment, the cost of which equipment would
constitute a capital expenditure if the equipment were purchased;
(18) any expenses for repairs or maintenance which are covered by
warranties, guarantees or service contracts (excluding any mandatory
deductibles);
(19) legal expenses arising out of the construction, operation, use,
occupation or maintenance of the Project, or the enforcement of the provisions
of any agreements affecting the Project, including this Lease;
(20) the costs and expenses of maintaining or repairing the security
systems within
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the Tenant's Leased Premises. (Tenant shall provide and pay for such service.);
(21) the costs and expenses of maintaining or repairing any item associated
with the groundwater environmental remediation program. (Tenant shall provide
and pay for such service.);
Section 3.05. REAL ESTATE TAXES.
(a) Landlord shall pay when due all real estate or property taxes,
assessments and other governmental fees, impositions or charges of any kind
which shall be levied or assessed or which become liens upon the Project
(hereinafter called "Real Estate Taxes"). Tenant shall pay Landlord, as
Additional Rent, the Real Estate Taxes levied or assessed on the Project. Such
payment shall be made in equal monthly installments to Landlord, based on the
Budget and actual Real Estate Taxes, in the same manner provided in Section 3.04
for Operating Expense installments. Within 45 days prior to the end of each
year, Landlord shall provide Tenant a written statement of Real Estate Taxes for
the new Lease Year accompanied by a copy of the tax bills for the prior lease
year and Landlord's estimate of Real Estate Taxes for the new Lease Year.
(b) Real Estate Taxes shall not include (1) income tax, tax on rents or
rentals, excess profits or revenue tax, excise tax or inheritance tax, gift tax,
gains tax, franchise tax, corporation tax, capital levy transfer, estate,
succession or other similar tax or charge that may be payable by or chargeable
to Landlord under any present or future Laws; (2) increases in assessments
caused by Landlord's sale of all or any part of the Project or an interest
therein; (3) interest or penalties imposed upon Landlord for late payment of
Real Estate Taxes; and (4) special assessments and Real Estate Taxes resulting
from the expansion or renovation of the Project or from a tenant's improvements
not approved by Tenant
(c) [Intentionally Omitted.]
(d) If the Project is not taxed as a separate and independent tax lot,
Landlord shall make application to the taxing authorities to obtain a separate
and independent assessment thereof. If the taxing authorities refuse to do so,
the taxes assessed against the said tax lot shall be equitably apportioned.
(e) Any increase or decrease in Real Estate Taxes during the Term shall be
apportioned so that Tenant shall pay or receive only that portion of the
increase or decrease in Real Estate Taxes that falls within the Term. If
allowed by Laws, Landlord shall pay Real Estate Taxes in installments.
(f) Any incentives or abatements of Real Estate Taxes which are received
by or credited to Landlord shall be passed through to Tenant.
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Section 3.06. ADJUSTMENT TO FIXED ANNUAL RENT.
(a) If during any Lease Year the Landlord makes Capital Improvements then,
subject to the provisions of this Article, in each Lease Year the Tenant shall
pay its "pro rata share" amount equal to a fraction of the Landlord's documented
cost of such Capital Improvements. The numerator of the fraction shall be the
period of time between the installation of and final payment for the Capital
Improvements and the end of the Term (assuming, for this purpose, that the
Tenant does not extend for the Extended Term) and the denominator shall be the
economic life of the Capital Improvements as determined by the Landlord pursuant
to generally accepted accounting principles and practices, consistently applied;
provided, that the fraction shall not exceed one (1). All costs, including
interest costs, shall be amortized on a straight line basis over such economic
life. If at the expiration or earlier termination of the Term the Tenant has
exercised the Extended Term, the Landlord shall promptly recalculate the
fraction and on or prior to the expiration or earlier termination date, the
Tenant shall reimburse the Landlord for the sum due the Landlord by reason of
the adjusted fraction.
(b) The words "Lease Year" shall mean the twelve-month period beginning on
the Commencement Date and each succeeding twelve-month period during the Term.
Any sums due hereunder for a partial year shall be pro rated based on a 365 day
year.
(c) The words "Capital Improvements" shall mean improvements,
replacements, or repairs to the Project which according to generally accepted
accounting principles and practices are required to be capitalized and, in
addition, are required (i) by Laws or insurers of the Premises, or (ii) by
reason of damaged property which is not covered by the insurance proceeds or
(iii) to continue operation of the Project for the purposes and in the manner
intended on the Commencement Date, or (iv) for the purpose of reducing operating
expenses of the Project up to the costs saved as a result of the installation
thereof as reasonably determined by the Landlord. Capital Improvements shall
include replacement of the Buildings Systems and Structures.
(d) Except in the case of emergencies, the need, nature and plans for
Capital Improvements shall be subject to the reasonable approval of the Landlord
and the Tenant and Landlord shall submit its plans therefor to the Tenant at
least three (3) months prior to the date the Landlord intends to begin the work.
Thereafter, the Landlord shall also submit to the Tenant an estimate of the
total "soft" and "hard" costs thereof and the relevant bids in advance of
ordering work for Capital Improvements. The Tenant shall have the option,
exercised within thirty (30) days from the date it receives this information, to
obtain bids and require that the work be done by the lowest qualified bidder who
will equal or exceed the quality of workmanship found in the Project.
(e) Prior to commencement of the work, the Landlord and the Tenant shall
agree upon the total cost for the Capital Improvements to be paid by the Tenant
in accordance with Section 3.06. Such cost shall be divided by the number of
remaining monthly periods of the
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Term, and the resulting sum added to the monthly rent due under this Lease. The
parties shall agree upon the adjusted monthly rent by an amendment to this
Lease.
Section 3.07. COMPUTATION AND BILLING.
(a) The words "Landlord's Statement" shall mean a statement, prepared by
Landlord setting forth in detail the amount of (1) each item included in the
Operating Expense for the Operating Expense Year or Semi-Annual Portion thereof,
and/or the Real Estate Taxes for the Real Estate Tax Year and (2) any other
Additional Rent or adjustments to the Fixed Rent. Within forty-five (45) days
after the end of each Operating Expense Year or Semi-Annual Portion thereof,
Landlord shall provide Tenant with the Landlord's Statement.
(b) Landlord shall, at Tenant's request, within 7 business days make
available to Tenant for inspection and examination at Tenant's cost the books
and records that relate to Landlord's Statement. If Tenant disputes any portion
of Landlord's Statement and the parties cannot resolve their differences within
thirty (30) days thereafter, either party may resolve the matter by arbitration
as provided in Article Thirty-Eight. Pending resolution of any dispute, Tenant
may withhold payment of the amount in dispute otherwise required to be paid
under Section 3.08(d) or Section 3.07(e).
(c) If the actual Operating Expenses in any Operating Expense Year or
semi-annual portion thereof are less (more) than the Operating Expenses paid by
the Tenant for the Operating Expense Year or semi-annual portion thereof, the
difference of shall be paid by Landlord to Tenant (paid by Tenant to Landlord)
in a lump sum within thirty (30) days following the date Landlord renders
Landlord's Statement to Tenant.
(d) If the actual Real Estate Taxes in any Real Estate Tax Year are less
(more) than the Real Estate Taxes paid by the tenant for the Real Estate Tax
Year, the difference shall be paid by Landlord to Tenant (paid by Tenant to
Landlord) in a lump sum within thirty (30) days following the date Landlord
renders Landlord's Statement to Tenant.
(e) If Landlord after written notice from Tenant has not provided Tenant a
Landlord's Statement by the end of twelve (12) months following the year
(whether calendar or fiscal) in which the Operating Expenses or Real Estate
Taxes are payable by Landlord, Landlord agrees that Landlord has waived its
claim against Tenant for any increase in Operating Expenses and Real Estate
Taxes for that year.
(f) This Article shall survive the expiration or earlier termination of
the Term.
Section 3.08. TAX CONTEST.
(a) In consideration of Tenant's undertaking to reimburse Landlord for
Real Estate Taxes, Tenant shall have the right, by appropriate proceedings, to
protest any assessment or reassessment or any special assessment, or any change
in the tax rate, or the validity of any of
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the above, provided that such contest
(b) Landlord shall notify Tenant in writing within fifteen (15) days after
Landlord's receipt of notice of all assessments and the tax rates and any
proposed changes to them. Tenant shall notify Landlord in writing within
fifteen (15) business days after receipt of Landlord's notice if Tenant wants to
file a protest. Prior to such notice or if Landlord fails to give such notice,
Tenant shall not be obligated to pay Tenant's share of any increase in Real
Estate Taxes.
(c) In the tax proceedings, Tenant may act in its own name and/or the name
of Landlord and Landlord will, at Tenant's request and provided Landlord is not
put to any expense thereby, cooperate with Tenant in any way Tenant may
reasonably require in connection with the protest. Any protest conducted by
Tenant hereunder shall be at Tenant's expense and if interest or late charges
become payable with respect to the Real Estate Taxes as a result, Tenant shall
reimburse Landlord for the same. However, Landlord shall be solely responsible
for any penalties, interest or late charges imposed on Landlord through no fault
of Tenant.
(d) Tenant may require Landlord at Landlord's expense to protest any type
of assessment or the tax rate one time only during the Term by timely
notification to Landlord. Tenant shall bear Landlord's cost of protest. If
Landlord is unable or fails to act on such request, then Tenant may contest
taxes at its expense.
(e) If Landlord shall receive a reduction or refund for any year for which
Tenant shall be obligated to pay or shall have paid Real Estate Taxes, the
amount of such reduction or refund shall be subtracted from the Real Estate
Taxes payable or paid by Landlord for the tax year to which the reduction or
refund applies and proper reimbursement shall be made by Landlord to Tenant
promptly after Landlord receives or is credited with such refund or reduction.
Landlord agrees to keep Tenant apprised of all tax protest filings and
proceedings undertaken by Landlord or others to obtain a tax reduction or refund
for the Project. If the refund or reduction resulted from Tenant's efforts,
Landlord shall also reimburse Tenant for reasonable attorneys' fees and any
other reasonable expenses incurred by Tenant in connection with the protest.
Otherwise, Landlord may deduct from the total refund any reasonable attorneys'
fees and other reasonable expenses incurred by Landlord therefor.
Section 3.09. PLACE FOR PAYMENT.
Installments of the Fixed Annual Rent and all other payments required to be
made by the Tenant to the Landlord pursuant to the provisions of this Lease
shall be paid to the Landlord at Xxxxx 0000, Xxx Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, Att: Xxxx X. Xxxxxx, III, President, or at such other place
as the Landlord may from time to time designate by notice to the Tenant.
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ARTICLE FOUR
ACCEPTANCE
Tenant agrees to accept possession of the Leased Premises under this Lease
in the condition, state of title and status of all other matters existing as of
the Commencement Date. Notwithstanding anything contained in this Lease to the
contrary, Landlord makes no warranty or representation, express or implied, as
to the condition of the Leased Premises or the Project or the suitability of the
Leased Premises or the Project for Tenant's use or for any other purpose, or as
to any other matter relating to the Leased Premises or the Project. Tenant
acknowledges that Tenant owned the Project immediately before the Commencement
Date and is fully aware of and thoroughly familiar with all matters relating to
the Leased Premises and the Project including, without limitation, the condition
of, the Leased Premises, and agrees that the Leased Premises and the Project
are, as of the Commencement Date, in compliance with the provisions of this
Lease.
ARTICLE FIVE
LANDLORD'S TITLE
Section 5.01. LANDLORD'S REPRESENTATIONS REGARDING TITLE AND USE.
Landlord represents and warrants as a condition of this Lease that it possesses
good marketable fee title to the Project; that it is authorized to make this
Lease for the Term; and that the provisions of this Lease do not or will not
conflict with or violate the provisions of existing or future agreements between
Landlord and third parties.
ARTICLE SIX
SERVICES
Section 6.01. SERVICES PROVIDED BY LANDLORD. Landlord shall, at its
expense and subject to Tenant's reimbursement as provided in Section 3.04,
furnish to Tenant the following services, utilities, supplies and facilities:
(1) Access to the Leased Premises twenty-four (24) hours a day, seven (7)
days a week.
(2) Passenger elevator service twenty-four (24) hours a day, seven (7)
days a week and freight elevator service reasonably required by Tenant, only if
such elevator service exists.
(3) (a) Heat, ventilation and air conditioning ("HVAC") in accordance
with EXHIBIT C, on Tenant's business days from 6:30 a.m. to 6:00 pm. and, at
Tenant's request, at all other times as hereinafter provided in this Article.
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(b) Landlord shall furnish HVAC beyond the above-stated hours,
provided that notice requesting such service is delivered to Landlord before
noon on the business day when such service is required for that evening, and by
noon of the preceding business day when such service is required on Saturday,
Sunday or the holidays ("Holidays") listed on EXHIBIT I. This service shall be
furnished at "Landlord's Costs" which shall mean the actual labor and utility
costs incurred by Landlord to provide such overtime service, without markup of
any kind. Landlord's Costs shall be paid by Tenant or, alternatively, shall be
shared proportionately (based on square feet of rentable area serviced by this
overtime HVAC and hours of use requested by the occupant) between Tenant and
other tenants, if any, located in the same HVAC zone who have requested and are
enjoying the benefit of the service at the same time as Tenant. Landlord shall
xxxx Tenant on or before the last day of the month following the month in which
Landlord's Costs are incurred, and shall submit with its invoice a tabulation of
the hours and the dates on which the overtime HVAC was furnished. Tenant shall
reimburse Landlord therefor within thirty (30) days after receipt of the invoice
and other data supporting the charges that Tenant may reasonably request.
(4) Hot and cold running potable water for Tenant's purposes.
(5) Electricity for lighting and for the operation of Tenant's office
machines, appliances and equipment, and for the Common Buildings Facilities and
Buildings Parking Area.
(6) Providing, installing and replacing light bulbs, tubes and ballasts in
the Common Buildings Facilities and Buildings Parking Area.
(7) Removing of ice and snow from the Common Buildings Facilities and
Buildings Parking Area.
(8) Vermin extermination and repair and replacing any item in the
Buildings damaged by vermin.
(9) Facilities for Tenant's loading, unloading, delivery and pick-up
activity at the Buildings, including access thereto twenty-four (24) hours a
day, seven (7) days a week.
Section 6.02. LANDLORD'S FAILURE TO PROVIDE SERVICES.
Section 24.02 of this Lease shall govern Tenant's remedies in the event of
Landlord's default in furnishing or paying for any utilities, services or
facilities to be furnished to Tenant hereunder.
ARTICLE SEVEN
PARKING
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Section 7.01. TENANT'S PARKING SPACES.
(a) Landlord shall, at its expense, provide Tenant with 640 self-parking
parking spaces (which number is based on a minimum of 3.2 parking spaces per
1,000 square feet of rentable area in the Leased Premises) within the Buildings
Parking Area for Tenant's use. The Buildings Parking Area is shown on
EXHIBIT E. The Buildings Parking Area shall be available for use twenty-four
(24) hours a day, every day of the year during the Term and shall be illuminated
when necessary to maintain a safe environment. Further, Landlord shall keep and
maintain the Buildings Parking Area in a clean, safe and first-class condition.
(b) If Tenant, its employees, licensees or guests are not able to use the
Buildings Parking Area and access ways thereto because of unauthorized use by
others, Landlord shall take whatever steps are necessary to end and prevent
further unauthorized use including, if appropriate, posting signs, distributing
parking stickers and towing away unauthorized vehicles.
Section 7.02. VISITORS' SPACES. During the Term, Landlord shall reserve
twenty (20) parking spaces in the Buildings Parking Area adjacent to the main
entrance of Building 1 as depicted on Exhibit E for use by invitees of Tenant
and the other tenants in the Buildings. These parking spaces shall be
designated for transient use, and Landlord shall take reasonable steps to insure
that these parking spaces are available for such use at all times.
ARTICLE EIGHT
USE OF LEASED PREMISES
Section 8.01. GENERAL USES. Tenant shall have the right to use the Leased
Premises solely and only for executive and administrative offices; marketing,
display, storage, service, repair and use of Tenant's products and equipment;
engineering; education and training of Tenant's customers and employees, and all
other uses incidental and related directly thereto, and for no other purpose.
Section 8.02. SPECIAL USES. If Tenant shall institute a special use of
Leased Premises which requires an amendment to the existing certificate of
occupancy, Tenant shall be responsible for obtaining the same as well as any
other governmental permit, approval or license required by applicable Laws.
Landlord, at Tenant's sole cost and expense, shall cooperate with Tenant and
shall execute all applications, authorizations and other instruments reasonably
required to enable Tenant to fulfill its responsibilities under this Section.
ARTICLE NINE
REPAIRS AND MAINTENANCE
Section 9.01. LANDLORD'S REPAIRS. Except for Tenant's maintenance,
repair,
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restoration and replacement obligations specified under this Lease, Landlord
shall maintain, and perform repair, restoration, replacement, work at, the
Project, including, without limitation, the obligations of Landlord to
maintain, repair and replace, as necessary, and keep in good order, safe and
clean condition (1) the plumbing, sprinkler, HVAC (excluding supplemental
HVAC systems located in computer, raised floor areas) and electrical and
mechanical lines and equipment associated therewith, elevators and boilers,
broken or damaged glass and damage by vandals; (2) utility and trunk lines,
tanks and transformers and the interior and exterior structure of the
Buildings, including the roof, exterior walls, bearing walls, support beams,
floor slabs, foundation, support columns and window frames; (3) improvements
to the Land; (4) including ditches, shrubbery, landscaping and fencing, and
(5) the Common Buildings Facilities located within or outside the Buildings,
including the common entrances, corridors, interior and exterior doors and
windows, loading docks, stairways, lavatory facilities and the Buildings
Parking Area and access ways therefor. Further, Landlord shall perform all
repairs and restoration work required by Article Ten, "Fire and Other
Casualty - Insurance" and Article Twelve, "Condemnation." In no event shall
Landlord be obligated to repair any damage caused by any act, omission or
negligence of Tenant or its employees, agents, invitees, licensees,
subtenants or contractors.
Section 9.02. TENANT'S REPAIRS. Except for Landlord's obligations
under Section 9.01, Tenant shall maintain the Leased Premises and the
fixtures and appurtenances therein in good condition and repair at all times,
and will not commit any act of waste. Tenant shall be responsible at
Tenant's sole cost and expense for the maintenance, repair and/or replacement
of any special heating, ventilating, air conditioning, plumbing, electrical
or other systems and fixtures installed solely to service the Leased
Premises, whether installed or paid for by Landlord or by Tenant with
Landlord's consent. Tenant shall reimburse Landlord for all costs and
expenses of repairing and replacing all damage or injury to the Leased
Premises, the Buildings, or the Project and to fixtures and equipment caused
by Tenant or its employees, agents, invitees, licensees, subtenants, or
contractors, or as the result of all or any of them moving in or out of the
Buildings or by installation or removal of furniture, fixtures or other
property. Such costs and expenses shall be collectible as Additional Rent
and paid by Tenant upon demand by Landlord. Tenant shall not be liable for
repairs or replacements necessitated by ordinary wear and tear, damage by
fire or other casualty and damage caused by Landlord or by others for whom
Tenant is not responsible. Tenant shall give prompt notice to Landlord of
any accident, fire, damage or other casualty occurring on or to the Leased
Premises, whether or not Landlord may have or assume any liability therefor
or any responsibility to repair or remedy the same.
Section 9.03. LANDLORD'S FAILURE TO MAKE REPAIRS.
Section 24.02 of this Lease shall govern Tenant's remedies in the event of
Landlord's failure or refusal to perform any repairs, restoration work, or
replacements which it is required to perform under Section 9.01 or elsewhere in
this Lease.
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Section 9.04. EMERGENCY REPAIRS. If during the Term repairs, restoration
work or replacements become necessary because of an emergency and the provisions
hereof require the Landlord to make these repairs and replacements, Tenant may
in good faith perform them if, in Tenant's reasonable opinion, they are
necessary to preserve the Leased Premises, or the safety or health of the
occupants in the Leased Premises, or Tenant's Property, or are required by the
Laws; provided, however, that Tenant shall first make a reasonable effort to
inform Landlord before making them.
ARTICLE TEN
FIRE AND OTHER CASUALTY - INSURANCE
Section 10.01. DAMAGE OR DESTRUCTION.
(a) If any portion of the Project is damaged by fire, earthquake, flood or
other casualty, or by any other cause of any kind or nature not caused by Tenant
(the "Damaged Property") and the Damaged Property can, in the opinion of
Landlord's architect reasonably exercised, be repaired within one hundred eighty
(180) days from the date of the damage, Landlord shall proceed immediately to
make such repairs as required by Section 10.01 (c). This Lease shall not
terminate, but Tenant shall be entitled to a pro rata abatement of Annual Rent
and Additional Rent payable during the period commencing on the date of the
damage and ending on the date the Damaged Property is repaired as aforesaid and
the Leased Premises are delivered to Tenant. The extent of rent abatement shall
be based upon the portion of the Leased Premises rendered untenantable, unfit or
inaccessible for use by Tenant for the purposes stated in this Lease during such
period. When required by this Article, the architect's opinion shall be
delivered to Tenant within thirty (30) days from the date of the damage. The
architect's opinion shall be made in good faith after a thorough investigation
of the facts required to make an informed judgment. The architect shall
consider and include as part of his evaluation the period of time necessary to
obtain the required approvals of the mortgagee, insurer, and municipal
authorities, to order and obtain materials, and to engage contractors.
Landlord, at Landlord's election, may also carry such other insurance,
including, without limitation, comprehensive general liability insurance, that
Landlord may deem appropriate, provided that such insurance is generally of the
type and amount customarily carried by owners or tenants in projects similar to
the Project, and the premiums for such insurance shall be included as part of
the Operating Expenses.
(b) If (1) in the opinion of Landlord's architect reasonably exercised,
damage to the Damaged Property cannot be repaired within one hundred eighty
(180) days from the date of the damage, or (2) Landlord commences and proceeds
with due diligence but fails to complete the repair of the Damaged Property as
required by paragraph (c) within the one hundred eighty (180) day period,
subject to an extension of time allowed for an Excusable Delay, or (3) the Term
will expire within one (1) year from the date of the damage and Tenant fails to
extend the Term in accordance with any right granted in Section 2.02 within
ninety (90) days from the date of the damage, either party may terminate this
Lease as follows: for the reason stated
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in subparagraph (b) (1), by notice to the other within twenty (20) days from the
date on which the architect's opinion is delivered to Tenant; (2) for the reason
stated in subparagraph (b) (2), by such notice within twenty (20) days from the
end of the one hundred eighty (180) day period, as it may have been extended by
an Excusable Delay, and (3) for the reason stated in subparagraph (3), by such
notice within one hundred (100) days from the date of the damage. Upon
termination, Annual Rent and Additional Rent shall be apportioned as of the date
of the damage and all prepaid Annual Rent and Additional Rent shall be repaid.
(c) If neither party exercises its option to terminate hereunder Landlord
shall, with due diligence, repair the Damaged Property as a complete
architectural unit of substantially the same usefulness, design and construction
existing immediately prior to the damage; provided, that, with respect to
improvements or alterations made by Tenant after the commencement Date, Tenant
shall pay all costs relating to such improvements or alterations. Tenant shall
be entitled to a pro rata abatement of Annual Rent and Additional Rent in the
manner and to the extent provided in paragraph (a).
(d) If by operation of this Article Landlord undertakes but fails to
complete repairs of the Damaged Property as required by the provisions of this
Article and deliver the leased Premises to Tenant within two hundred seventy
(270) days from the date of the damage, for any reason other than a material and
adverse delay caused by Tenant, Tenant may exercise its rights under Section
24.02, failing which either party may terminate this Lease by notice to the
other within three hundred (300) days from the date of the damage. If either
party elects to terminate, this Lease and the Term shall end on the date
specified in the notice and Annual Rent and Additional Rent shall be apportioned
as of the date of the damage and all prepaid Annual Rent and Additional Rent
shall be repaid.
(e) The word "repair" shall include rebuilding, replacing, and restoring
the Damaged Property.
Section 10.02. CASUALTY INSURANCE.
(a) Through the Term, Landlord shall cause the improvements located on the
Land (including, without limitation, the Buildings, including the tenant
improvements therein ) to be insured against loss or damage by fire and the
perils commonly covered under the standard extended coverage endorsement to the
extent of not less than the "full replacement cost" thereof, including all
improvements, alterations, additions and changes made by Landlord or tenants,
but excluding foundations, footings and excavation, and excluding fixtures and
equipment owned by Landlord or its tenants. Provided this Lease has not been
terminated pursuant to the Article entitled "Fire or Other Casualty" the
proceeds of such insurance in case of loss or damage shall be used to restore
the Leased Premises, the Buildings and/or other improvements at the Land to the
extent that such proceeds are required for such purposes.
(b) Through the Term, Tenant shall cause all improvements made by Tenant
to the Leased Premises, along with Tenant's trade fixtures, furnishings,
equipment and other items of
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personal property located on the Leased Premises, to be insured against loss or
damage by fire and the perils commonly covered under the Standard extended
coverage endorsement, in form and amount reasonably satisfactory to Landlord.
Notwithstanding anything to the contrary provided herein, all proceeds of
insurance payable with respect to damage or destruction of Tenant's property,
including, but not limited to, Tenant's fixtures and equipment, shall be paid
to, and retained by Tenant.
(c) With respect to any loss or damage that may occur to the Land (or any
improvements thereon) or the respective property of the parties therein, arising
from any peril customarily insured under a fire and extended coverage insurance
policy, regardless of the cause or origin, including negligence of the parties,
their agents, servants or employees, the party required to carry such insurance
and suffering such loss hereby releases the other party from all claims with
respect to such loss, and Landlord and Tenant mutually agree that their
respective insurance companies shall have no right of subrogation against the
other party on account of any such loss, and each party shall procure from its
respective insurers under all policies of fire and extended coverage insurance a
waiver of all rights of subrogation against the other party which the insurers
might otherwise have under such policies.
(d) Tenant shall at all times during the period in which it has any
occupancy rights in the Demised Premises, maintain in full force and affect
comprehensive public liability insurance, naming Landlord as an additional
insured, covering injury to persons and damage to property occurring in or about
the Demised Premised, in such amounts as may reasonably be required by Landlord
from time to time, but not less than $2,000,000 combined single limit. Tenant
shall lodge with Landlord certificates of such insurance at or prior to the date
Tenant shall make its initial entry into the Demised Premises, and shall lodge
with Landlord renewals thereof at least fifteen (15) days prior to expiration.
All such policies of insurance shall provide that they shall not be canceled or
amended without at least twenty (20) days prior notice to Landlord.
ARTICLE ELEVEN
INDEMNIFICATION
Subject to the provisions of Section 10.02(c), Landlord and Tenant each
agree to indemnify and save the other harmless from any and all claims for
bodily injury (including death) or property damage made against one of the
parties hereto if (1) arising from any breach or default by the other party
hereto (including its agents, invitees, employees or contractors) in the
performance of any covenant or agreement on its part to be performed pursuant to
the provisions of this Lease, or (2) occurring within the Project limits and
arising from the misconduct or gross negligence of the other party (including
its agents, invitees, employees or contractors). This indemnity shall include
all court costs, reasonable attorneys' fees, expenses and liabilities incurred
by the indemnified party against which the claim is made. If any action or
proceeding is brought against either Landlord or Tenant by reason of any such
claim, the indemnifying party agrees to defend the action or proceeding at its
expense
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upon notice from the party to be indemnified.
ARTICLE TWELVE
CONDEMNATION
Section 12.01. TAKING - LEASE ENDS. If at any time during the Term the
whole of the Leased Premises shall be taken for any public or quasi-public use,
under any statute or by right of eminent domain, this Lease shall terminate on
the date of such taking except as provided in Section 12.03. If less than all
of the Leased Premises shall be so taken and in Tenant's reasonable opinion the
remaining part is insufficient for the conduct of Tenant's business Tenant may,
by notice to Landlord within sixty (60) days after the date Tenant is notified
of such taking, terminate this Lease. If Tenant exercises its option, this
Lease and the Term shall end on the required date of delivery of the condemned
area to the condemning authority and the Annual Rent and Additional Rent shall
be apportioned and paid to the date specified in Tenant's notice.
Section 12.02. TAKING - LEASE CONTINUES. If less than all of the Leased
Premises shall be taken and, in Tenant's reasonable opinion communicated by
notice to Landlord within sixty (60) days after Tenant is notified of such
taking, Tenant is able to gain access to and continue the conduct of its
business in the part not taken, this Lease shall remain unaffected, except that
Tenant shall be entitled to a pro rata abatement of Annual Rent and Additional
Rent based upon the nature of the space taken (office space, storage, parking
area) and upon the proportion which the area of the Leased Premises or Buildings
Parking Area, as case may be, so taken bears to the area of the Leased Premises
or Buildings Parking Area, as case may be, immediately prior to such taking.
Landlord and Tenant agree that Tenant shall be conclusively presumed to have
access to and be able to conduct business in the remaining portion of the Leased
Premises if less than thirty percent (30%) of the Leased Premises is taken by
condemnation.
Section 12.03. TEMPORARY TAKING. If the use and occupancy of the whole
or more than thirty percent (30%) of the Leased Premises is temporarily taken
for a public or quasi-public use for a period longer than nine (9) months but
less than the balance of the Term, at Tenant's option to be exercised in writing
and delivered to Landlord not later than sixty (60) days after the date Tenant
is notified of such taking, this Lease and the Term shall terminate on the
required date of delivery of the condemned area to the condemning authority or
shall continue in full force and effect. If this Lease remains in effect Tenant
shall be entitled to a pro rata abatement of Annual Rent and Additional Rent in
the manner and to the extent provided in Section 12.02.
Section 12.04. LANDLORD'S AWARD. Landlord shall be entitled to receive
the entire award or awards in any condemnation proceeding without deduction
therefrom for any estate vested in Tenant and Tenant shall receive no part of
such award or awards from Landlord or in the proceedings except as otherwise
expressly provided in Section 12.05.
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Subject to the foregoing, Tenant hereby assigns to Landlord any and all of
Tenant's right, title and interest in or to such award or awards or any part
thereof.
Section 12.05. TENANT'S AWARD. If there is a taking hereunder, Tenant
shall be entitled to receive out of the award or, if allowed by the Laws, to
appear, claim, prove and receive in the condemnation proceeding Tenant's
relocation and moving expenses and the value of Tenant's personal property.
Section 12.06. RESTORATION BY LANDLORD. If there is a taking hereunder
and this Lease is continued Landlord shall, at its expense, proceed with
reasonable diligence use the award proceeds to repair, replace and restore the
Buildings as a complete architectural unit of substantially the same
proportionate usefulness, design and construction existing immediately prior to
the date of taking.
Section 12.07. DEFINITIONS. Taking by condemnation or eminent domain
hereunder shall include the exercise of any similar governmental power and any
sale, transfer or other disposition of the Buildings or Land in lieu or under
threat of condemnation. The word "Buildings," as used in this Article only,
shall mean only the Leased Premises, Buildings Parking Area and access ways
thereto and Common Buildings Facilities.
ARTICLE THIRTEEN
ALTERATIONS AND IMPROVEMENTS
Section 13.01. TENANT'S CHANGES - NO APPROVAL.
(a) Tenant may place and replace its trade fixtures, tools, machinery,
furniture, floor covering, equipment and other tangible personal property
("Tenant's Personal Property") in the Leased Premises and may make alterations,
improvements, replacements and other changes to the Leased Premises Service
Systems and to the interior of the Leased Premises as it may desire at its own
expense without Landlord's consent. Tenant shall not alter, improve, replace or
change the Buildings Service Systems or the Structure except in accordance with
Section 13.02.
(b) The words "Leased Premises Service Systems" shall mean the electrical,
HVAC, mechanical, plumbing, safety and health systems that directly service the
Leased Premises from a localized point of distribution. Such systems are
dedicated to the Leased Premises at their available capacities (such as HVAC for
computer rooms) and do not service any space other than the Leased Premises.
Section 13.02. TENANT'S CHANGES - LANDLORD'S APPROVAL.
(a) Tenant may make alterations, improvements, replacements and other
changes to the Buildings Service Systems and to the Structure if Landlord
consents thereto, which consent
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shall not be unreasonably withheld or delayed provided that such work does not
in Landlord's reasonable judgment impair the value of the Buildings or Project.
(b) If Tenant desires to make alterations, improvements, replacements
or other changes to the Structure or Buildings Service Systems, Tenant shall
make a written request for Landlord's approval by submitting to Landlord a
list of proposed contractors and plans and specifications for the work to be
performed. Landlord shall respond within fifteen (15) business days from
receipt of the same, approving those contractors and those portions of the
work that are acceptable and disapproving those contractors and portions of
the work that are, in Landlord's judgment reasonably exercised, unacceptable
and specifying in detail the nature of Landlord's objection. Failure of
Landlord to respond as aforesaid shall be tantamount to approval of such
contractors and plans and specifications in all respects. Tenant shall cause
all work done by or on behalf of Tenant to be done in compliance with all
Laws, in first class good and workmanlike manner, free and clear of all liens.
(c) The words "Buildings Service Systems" shall mean the electrical,
HVAC, mechanical, plumbing, safety and health systems that service the
Buildings up to the point of localized distribution. Such systems provide
the main source of supply and distribution throughout the Buildings.
(d) The word "Structure" shall mean bearing walls, roof, exterior
walls, support beams, foundation, window frames, floor slabs and support
columns of the Buildings.
Section 13.03. TENANT'S OWNED PROPERTY. All of Tenant's Personal
Property and all non-structural alterations, improvements, replacements and
changes made prior to or during the Term, whether paid for directly by Tenant
(collectively, "Tenant Owned Property" as set forth in Exhibit "M" attached
hereto and hereby made a part hereof) shall be owned by and remain the property
of Tenant..
Section 13.04. REMOVAL OF TENANT'S OWNED PROPERTY. Tenant may remove all
or any of Tenant's Owned Property at any time during the Term or, at its option,
Tenant may abandon the same, in whole or in part, to Landlord at the expiration
or earlier termination of the Term by vacating the Leased Premises without
removing the same; provided that, if requested by Landlord, Tenant shall remove
Tenant's Owned Property at the expiration or sooner termination of this Lease in
accordance with Article 16. If Tenant removes such things or any of them,
Tenant shall repair all damage caused by such removal and restore to its
previous condition any portion of the Buildings damaged by such removal.
Section 13.05. LANDLORD'S CHANGES - TENANT'S APPROVAL. During the Term,
Landlord shall obtain Tenant's consent, which shall not be unreasonably withheld
or delayed, before making any substantial addition to the Buildings or
materially altering the external appearance thereof, unless required by the
Laws.
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ARTICLE FOURTEEN
LANDLORD'S ACCESS
(a) Landlord shall, upon advance oral notice to Tenant (except in an
emergency), have the right (1) at all reasonable times during Tenant's business
hours to inspect the Leased Premises and to show the same to prospective
mortgagees and purchasers; (2) to show the same to prospective tenants during
the last nine (9) months of the Lease Term, and (3) at all times to make repairs
or replacements as required by this Lease or as may be necessary; provided,
however, that Landlord shall use all reasonable efforts not to disturb Tenant's
use and occupancy of the Leased Premises.
(b) Tenant may designate one or more areas in the Leased Premises as
secure areas, and Landlord shall have no right of access thereto without being
accompanied by Tenant's designated representative except in the case of
emergencies.
ARTICLE FIFTEEN
COMPLIANCE WITH LAWS
Section 15.01. TENANT'S COMPLIANCE WITH LAWS. Tenant shall comply with
all federal, state and local statutes, rules, ordinances, orders, codes and
regulations, and legal requirements and standards issued thereunder, including,
without limitation, environmental laws, and requirements (collectively referred
to in this Lease as the "Laws") which are applicable to Tenant's use and manner
of use of the Leased Premises.
Section 15.02. LANDLORD'S COMPLIANCE WITH LAWS.
(a) Landlord shall comply with all Laws which relate to the performance by
Landlord of any duties or obligations to be performed by Landlord under this
Lease.
(b) All boilers and other pressure vessel equipment shall be maintained by
Landlord in accordance with the ASME Standards and Codes.
(c) Landlord shall regularly inspect and maintain the HVAC system and
treat the cooling tower water with U.S. Environmental Protection Agency
registered chemicals to prevent the buildup of slime, algae and bacteria, and
shall follow the latest recommendations of the Center for Disease Control or
current practices of the American Society of Heating, Refrigeration and Air
Conditioning Engineers.
ARTICLE SIXTEEN
SURRENDER OF POSSESSION
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(a) At the expiration or earlier termination of the Term, Tenant will
peaceably yield up the Leased Premises to Landlord.
(b) Any alterations, improvements or additions to the Leased Premises made
by or at the request of Tenant after the Commencement Date shall remain upon the
Leased Premises at the expiration or earlier termination of this Lease and shall
become the property of Landlord unless Landlord shall, at such time as Landlord
gives its written consent to such alterations, improvements or additions,
Landlord gives written notice to Tenant that Tenant must remove such
alterations, improvements, and additions at the expiration or earlier
termination of the Lease. If Landlord approval is given for the outfitting of
general office space substantially similar to the general office space in the
Leased Premises at the Commencement Date, Tenant shall not be obligated to
remove any such alterations, improvements or additions in such substantially
similar general office space. Tenant shall promptly repair any damage caused by
such removal (including, but not limited to, repairing and patching holes,
replacing ceiling, floor and wall surfaces and repainting), and restore the
Leased Premises to substantially the same condition in which it existed prior to
the time that any such alterations, improvements, or additions were made.
Should Tenant fail to remove any such alterations, improvements or additions or
to repair such damage when required or requested by Landlord so to do pursuant
to this Section 16(b), Landlord may do so, and the cost and expense thereof
shall be paid by Tenant to Landlord as Additional Rent.
(c) Notwithstanding any other provision of this Lease to the contrary, any
personal property which shall remain in the Leased Premises or any part thereof
after the expiration or termination of this Lease shall be deemed to have been
abandoned and either may be retained by Landlord as Landlord's property or may
be disposed of in such manner as Landlord may see fit, provided that
notwithstanding the foregoing, Tenant shall, upon request of Landlord made no
later than ten (10) days after the expiration or termination of this Lease,
promptly remove from the Buildings any such personal property at Tenant's own
cost and expense. Should Tenant fail to do so, Landlord may do so, and the cost
and expense. Should Tenant fail to do so, Landlord may do so and the cost and
expense thereof shall be paid by Tenant to Landlord as Additional Rent. If such
personal property or any part thereof shall be sold by Landlord, Landlord may
receive and retain the proceeds of such sale(s) as Landlord's property. The
covenants contained in this Article 16 shall survive the expiration or earlier
termination.
ARTICLE SEVENTEEN
SIGNS
Section 17.01. TENANT'S SIGNS. Tenant may place its signs on the entrance
doors to the Leased Premises and in hallways or elevator lobbies on floors
wholly leased by Tenant. On floors partially leased by Tenant, Tenant may place
its signs on entrance doors to the Leased Premises and, at Tenant's expense,
Landlord shall place signs in the elevators and in
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the hallways leading to the Leased Premises which give direction to the Leased
Premises.
Section 17.02. PROJECT SIGN AND NAME.
(a) Tenant agrees that the Project has been renamed the "South Brunswick
Corporate Center."
(b) If at any time after the execution of this Lease Landlord changes the
Project name or installs new or substitute signs which are not the Project name,
Landlord shall notify Tenant at least sixty (60) days prior to the date of the
proposed change. The proposed new or changed name or the proposed signs may not
identify a direct competitor of Tenant.
Section 17.03. LIMITATIONS ON LANDLORD'S RIGHTS. Neither Tenant nor
Landlord shall install or permit installation of any signs, sculptures and/or
graphics which adversely reflect on the dignity or character of the Project as a
first-class office Project. Except during the final nine (9) months of the Term
of this Lease, no "for rent' or other similar signs or flags, other than the
American flag and flag of the State in which the Buildings is located, may be
placed within the Project limits without Tenant's written approval, which shall
not be unreasonably withheld or delayed.
Section 17.04. COMPLIANCE WITH LAWS. All signs installed by Landlord or
Tenant shall comply with applicable Laws and shall be installed in a good and
workmanlike manner. Landlord must approve all exterior signage installed by
Tenant, such approval not to be unreasonably withheld.
ARTICLE EIGHTEEN
SUBORDINATION AND NON-DISTURBANCE
This Lease shall be subordinate and subject to any mortgages covering the
fee of the Project, and to all renewals, modifications or replacements thereof;
provided, however, that with respect to any existing mortgage, no later than the
date Tenant executes and delivers this Lease and, with respect to any future
mortgage, on or before the effective date thereof, Landlord shall obtain from
its mortgagee, a written agreement with Tenant generally in the form attached
hereto and marked EXHIBIT K. The agreement shall be binding on their respective
legal representatives, successors and assigns and provide, among other
provisions, that so long as this Lease shall be in full force and effect (a)
Tenant shall not be joined as a defendant in any proceeding which may be
instituted to foreclose or enforce the mortgage; (b) Tenant's possession and use
of the Project in accordance with the provisions of this Lease shall not be
affected or disturbed by reason of the subordination to or any modification of
or default so long as Tenant is not in default under this Lease; and (c) the
mortgagee will make available to Landlord the insurance proceeds payable under
policies of insurance required to be carried by Landlord in Article Ten for the
purposes agreed upon in Article Ten. If the mortgagee or any successor in
interest shall succeed to the rights of Landlord under this Lease, whether
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through possession, surrender, assignment, subletting, judicial or foreclosure
action, or delivery of a deed or otherwise, Tenant will attorn to and recognize
such successor-landlord as Tenant's landlord provided the successor-landlord
accepts such attornment and recognizes Tenant's rights of possession and use of
the Leased Premises in accordance with the provisions of this Lease.
ARTICLE NINETEEN
MECHANICS' LIENS
During the Term, Tenant shall immediately discharge by payment, bond or
otherwise those mechanics' liens filed against the Project for work, labor,
services or materials claimed to have been performed at or furnished to the
Leased Premises for or on behalf of Tenant, except when the mechanics' liens are
filed by a contractor, supplier, materialman or laborer retained by Landlord, in
which event Landlord shall discharge the liens by payment, bond or otherwise.
ARTICLE TWENTY
[INTENTIONALLY OMITTED]
ARTICLE TWENTY-ONE
[INTENTIONALLY OMITTED]
ARTICLE TWENTY-TWO
TENANT'S SECURITY
Section 22.01. LIMITED RESTRICTIONS AGAINST OTHER TENANTS. In order to
protect Tenant's trade secrets and confidential information and enhance security
in Buildings 1 and 3, Landlord agrees that with respect to Buildings 1 and 3,
Landlord will not lease or consent to any lease or sublease or assign this Lease
or consent to the assignment of any sublease to any Person which, as a major
part of its business (1) leases or sells data processing products,
telecommunications products, software products, printer products or other
products of the kind sold by Tenant, or (2) leases or sells parts or supplies
manufactured by Tenant for such products, or (3) furnished services for any of
such products, including programming, engineering, repair or maintenance, or (4)
offers training in the use, repair or application of any of such products.
Section 22.02. INCLUSION OF RESTRICTION IN OTHER LEASES AND SUBLEASES.
Landlord shall include the foregoing prohibition in all tenant leases and
subleases which are executed after the date hereof and cover space in Building 1
and Building 3.
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Section 22.03. ADVANCE CONSULTATION WITH TENANT. Landlord shall consult
with Tenant before making any commitment which may violate this Article.
ARTICLE TWENTY- THREE
[INTENTIONALLY OMITTED]
ARTICLE TWENTY-FOUR
DEFAULT
Section 24.01. TENANT'S DEFAULT
(a) The occurrence of any of the following shall, at Landlord's option,
constitute an "Event of Default" by Tenant under this Lease:
(1) Failure to pay the Annual Rent, Additional Rent or any other sum
of money called for therein, or any part thereof, when due and continuation of
such failure for fifteen (15) days after notice from Landlord to Tenant;
provided, however, Landlord shall not be required to give such notice, and
Tenant shall not be entitled to such grace period, more than three times in any
twelve (12) month period;
(2) Failure to comply with or perform any of the other terms,
covenants, conditions or agreements to be complied with or performed by Tenant
under or pursuant to the terms of this Lease and continuation of such failure
for thirty (30) days after notice from Landlord to Tenant, or if the failure is
of such a character as cannot reasonably be cured within thirty (30) days,
failure to initiate within said thirty (30) day period such action as reasonably
can be taken toward curing the same and/or failure to prosecute such action as
diligently as is reasonably possible after said action is initiated and to cure
the default within seventy-five (75) days after the notice; provided, however,
Landlord shall not be required to give such notice, and Tenant shall not be
entitled to such grace period, more than three (3) times in any twelve (12)
month period;
(3) If Tenant shall file a voluntary petition in bankruptcy or shall
be adjudicated a bankrupt or insolvent or if any order for relief be entered
against Tenant in any federal bankruptcy proceeding, or, in any action or
proceeding, Tenant shall file any petition or answer seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future applicable federal, state or other statute or
law, or shall seek the consent to or acquiesce in the appointment of any
trustee, receiver or liquidator of Tenant or of all or substantially al of its
properties or of the Leased Premises; and
(4) If, within sixty (60) days after the commencement of any
proceeding
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against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present or
future federal bankruptcy act or any other present or future applicable federal,
state or other statute or law, such proceeding shall not have been dismissed, or
if, within sixty (60) days after the appointment, without consent or
acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant or all
or substantially all of its properties or of the Leased Premises, such
appointment shall not have been vacated or stayed on appeal or otherwise, or if,
within sixty (60) days after the expiration of any such stay, such appointment
shall not have been vacated.
(b) Upon the occurrence of an Event of Default, Landlord, in addition to
all other rights and remedies available to Landlord by law or equity or by any
other provisions of this Lease, may at any time thereafter:
(1) declare to be immediately due and payable, on account of the rent
and other charges herein reserved for the balance of the Term of this Lease
(taken without regard to any early termination of said Term on account of
default), a sum equal to the Accelerated Rent Component (as hereinafter
defined), and Tenant shall remain liable to Landlord as hereinafter provided,
and/or;
(2) whether or not Landlord has elected to recover the Accelerated
Rent Component, terminate this Lease and, on the date specified in the notice of
termination, this Lease and the Term hereby demised and all rights of Tenant
hereunder shall expire and terminate and Tenant shall thereupon quit and
surrender possession of the Demised Premises to Landlord in the condition
elsewhere herein required and Tenant shall remain liable to Landlord as
hereinafter provided.
(c) For purposes of this Lease, the Accelerated Rent Component shall mean
the aggregate of:
(1) all Annual Rent, Additional Rent and other charges, payments,
costs and expenses due from Tenant to Landlord and in arrears at the time of the
election of Landlord to recover the Accelerated Rent Component;
(2) the Annual Rent reserved for the then entire unexpired balance of
the Term of this Lease (taken without regard to any early termination of the
Term by virtue of any default), plus Additional Rent and all other charges,
payments, costs and expenses herein greed to be paid by Tenant up to the end of
said Term which shall be capable of precise determination at the time of
Landlord's election to recover the Accelerated Rent Component, discounted to
present value at the then existing prime rate of CoreStates Bank, N.A.,
Philadelphia, Pennsylvania; and
(3) Landlord's good faith estimate of all charges, payments, costs
and expenses herein agreed to be paid by Tenant up to the end of said Term which
shall not be capable of precise determination as aforesaid (and for such
purposes no estimate of any
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component of Additional Rent shall be less than the amount which would be due if
each such component continued at the highest monthly rate or amount in effect
during the twelve (12) months immediately preceding the default) discounted to
present value at the then existing prime rate of CoreStates Bank, N.A.,
Philadelphia, Pennsylvania.
(d) In any case in which the Lease shall have been terminated, or in any
case in which Landlord shall have elected to recover the Accelerated Rent
Component and any portion of such shall remain unpaid, Landlord may, without
further notice, enter upon and repossess the Leased Premises, by summary
proceedings, ejectment or otherwise, and may dispose Tenant and remove Tenant
and all other persons and property from the Leased Premises and may have, hold
and enjoy the Leased Premises and the rents and profits therefrom. Landlord
may, in its own name, as agent for Tenant, if this Lease has not been
terminated, or in its own behalf, if this Lease has been terminated, relet the
Leased Premises or any part thereof for such term or terms (which may be greater
or less than the period which would otherwise have constituted the balance of
the term of this Lease) and on such conditions and provisions (which may include
concessions or free rent) as Landlord in its sole discretion may determine.
Landlord may, in connection with any such reletting, cause the Leased Premises
to be redecorated, altered, divided, consolidated with other space or otherwise
changed or prepared for reletting. No reletting shall be deemed a surrender and
acceptance of the Leased Premises.
(e) Tenant shall, with respect to all periods of time up to and including
the expiration of the Term of this Lease (or what would have been the expiration
date in the absence of default or breach) remain liable to Landlord as follows:
(1) In the event of termination of this Lease on account of Tenant's
default or breach, Tenant shall remain liable to Landlord for damages equal to
the rent and other charges payable under this Lease by Tenant as if this Lease
were still in effect, less the net proceeds of any reletting after deducting all
costs incident thereto (including without limitation all repossession costs,
brokerage and management commissions, operating and legal expenses and fees,
alteration costs and expenses of preparation for reletting) and to the extent
such damages shall not have been recovered by Landlord by virtue of payment by
Tenant of the Accelerated Rent Component (but without prejudice to the right of
Landlord to demand and receive the Accelerated Rent Component), such damages
shall be payable to Landlord monthly upon presentation to Tenant of a xxxx for
the amount due.
(2) In the event and so long as this Lease shall not have been
terminated after default or breach by Tenant, the rent and all other charges
payable under this Lease shall be reduced by the net proceeds of any reletting
by Landlord (after deducting all costs incident thereto as above set forth) and
by any portion of the Accelerated Rent Component paid by Tenant to Landlord, and
any amount due to Landlord shall be payable monthly upon presentation to Tenant
of a xxxx for the amount due.
(f) In the event Landlord shall, after default or breach by Tenant,
recover the Accelerated Rent Component from Tenant and it shall be determined at
the expiration of the
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term of this Lease (taken without regard to early termination for default) that
a credit is due Tenant because the net proceeds of reletting, as aforesaid, plus
the amounts paid to Landlord by Tenant exceed the aggregate of rent and other
charges accrued in favor of Landlord to the end of said term, Landlord shall
refund such excess to Tenant, without interest, promptly after such
determination.
(g) Landlord shall in no event be responsible or liable for any failure to
relet the Leased Premises or any part thereof, or for any failure to collect any
rent due upon a reletting, but Landlord agrees to use reasonable efforts to
mitigate damages.
(h) As a cumulative and alternative remedy of Landlord in the event of
termination of this Lease by Landlord following any breach or default by Tenant,
Landlord, at its option, shall be entitled to recover damages for such breach in
an amount equal to the Accelerated Rent Component (determined from and after the
date of Landlord's election under this subsection (g)) less the fair rental
value of the Leased Premises for the remainder of the term of this Lease (taken
without regard to the early termination), discounted to present value at the
then existing prime rate of CoreStates Bank, N.A, Philadelphia, Pennsylvania,
and such damages shall be payable by Tenant upon demand.
(i) Nothing contained in this Lease shall limit or prejudice the right of
Landlord to prove for and obtain as damages incident to a termination of this
Lease, in any bankruptcy, reorganization or other court proceedings, the maximum
amount allowed by any statute or rule of law in effect when such damages are to
be proved.
(j) If Annual Rent, Additional Rent or any other sum due from Tenant to
Landlord or payable by Tenant under this Lease shall be overdue for more than
ten (10) days, such overdue payment shall thereafter from its due date bear
interest at the rate of five percent (5%) per annum during such overdue period
in effect until paid by Tenant.
(k) No right or remedy herein conferred upon or reserved to Landlord is
intended to be exclusive of any other right or remedy herein or by law provided,
but each shall be cumulative and in addition to every right or remedy given
herein or now or hereafter existing at law or inequity. No waiver by Landlord
or any breach by Tenant of any of Tenant's obligations, agreements or covenants
herein shall be a waiver of any subsequent breach or of any obligation,
agreement or covenant, nor shall any forbearance by Landlord to seek a remedy
for any breach by Tenant be a waiver by Landlord of any rights and remedies with
respect to such breach or any subsequent breach. No re-entry or taking of
possession of the Leased Premises or making of repairs, alterations or
improvements thereto, or reletting thereof shall be construed as a election ont
he part of landlord to terminate this Lease unless written notice of such
intention is given under the terms hereof to Tenant. The receipt by Landlord of
any sum payable under this Lease, with knowledge of the breach of any covenant
or agreement (other than the prior failure to pay such sum) shall not constitute
a waiver or cure of such breach or prevent Landlord from exercising any of its
rights or remedies hereunder on account of Tenant's breach. Landlord shall be
entitled, to the extent permitted by law, to injunctive
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relief in case of the violation, or attempted or threatened violation, of any
covenant, agreement, condition or provision of this Lease, or to a decree
compelling performance of any covenant, agreement, condition or provision of
this Lease, or to any other remedy allowed by law or in equity.
Section 24.02. DEFAULT BY LANDLORD. In the event that Landlord shall
fail to perform any of its obligations under this Lease and shall fail to cure
such default within 10 days after Tenant shall have given written notice of such
default, and within ten (10) days of Tenant giving further notice of its intent
to exercise the remedies provided in this Section 24.02, to Landlord and to any
mortgagees of Landlord (provided that Landlord shall have informed Tenant of
such mortgagee's name and address) or, with respect to a default that cannot
reasonably be cured within 10 days, if Landlord or any such mortgagee fails to
commence to cure such default within such period and to diligently pursue such
cure to completion, then a Landlord default ("Landlord Default") shall be deemed
to have occurred, and Tenant shall have the following rights. Tenant shall have
the right to cure the default and after effecting such cure the reasonable cost
thereof shall be reimbursed to Tenant by Landlord within 15 days after receiving
Tenant's invoices, failing which Tenant, in addition to all remedies available
at law or in equity to collect such costs, may withhold the amount thereof from
Additional Rent (but not Annual Rent). In addition to the foregoing, Tenant
shall be entitled to all remedies available at law and in equity for a Landlord
Default. For purposes of this Section 24.02, any cure by a mortgagee of
Landlord shall be deemed to be a cure by Landlord. Any improper exercise of
Tenant's right hereunder to withhold all or any portion of the Additional Rent
shall constitute a default of Tenant as of the date of the improper withholding.
ARTICLE TWENTY-FIVE
HOLDOVER
If Tenant, or any person claiming by or under Tenant, remains in possession
of the Leased Premises after the expiration of the Lease Term, then in addition
to all other rights and remedies provided in this Lease or by law or in equity,
Landlord shall be entitled to receive from Tenant (a) as agreed damages for such
unlawful retention, an amount, calculated on a per diem basis for each day of
unlawful retention, equal to twice the Annual Rent for such period, or the
established market rental of the Leased Premises, whichever is greater, plus (b)
Additional Rent and all other damages, costs and expenses sustained or incurred
by Landlord by reason of such unlawful retention. Without in any way limiting
Landlord's rights or remedies or creating any additional rights or privileges
for Tenant during any period when Tenant is wrongfully holding over, all powers
granted to Landlord by this Lease may be exercised and all obligations imposed
upon Tenant by this Lease shall be performed by Tenant both during the Lease
Term hereof and during any period of holdover or extension of the Lease Term,
whether or not such holdover or extension constitutes and Event of Default under
this Lease.
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ARTICLE TWENTY-SIX
NOTICES
Any notice, request or demand under this Lease shall be in writing, and
shall be considered properly delivered when addressed as hereinafter provided,
and (a) served personally, (b) registered or certified (return receipt
requested) and deposited in a United States general or branch post office, or
(c) sent by a private express mail carrier or nationally recognized next day
delivery service. Any notice, request or demand by Tenant to Landlord shall be
addressed to Landlord at Xxxxxx/Xxxxxxx Investment Corporation, Xxx Xxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxx X.
Xxxxxx, III, President (telephone, 000-000-0000 and telecopy, 215-567-1907)until
otherwise directed in writing by Landlord and, if requested in writing by
Landlord, simultaneously served on or sent to Landlord's first mortgagee at the
address specified in such request. Any notice, request or demand by Landlord to
Tenant shall be addressed to Tenant at IBM - Real Estate Services, Xxx Xxxxxxx
Xxxx, Xxxxxx, Xxx Xxxx 00000, Attention: Legal Counsel with copies addressed
simultaneously to Tenant at IBM - Real Estate Services, 000 Xxxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000 and Tenant's Administration Manager at the Leased
Premises, until otherwise directed in writing by Tenant. Rejection or other
refusal to accept a notice, request or demand, or the inability to deliver the
same because of a changed address of which no notice was given, shall be deemed
to be receipt of the notice, request or demand sent.
ARTICLE TWENTY-SEVEN
ASSIGNMENT AND SUBLETTING
Section 27.01. ASSIGNMENT OR SUBLEASE. Other than an assignment or
subletting to a party referred to in (a) or (b) below, Tenant shall not assign
or sublet any part of the Leased Premises without Landlord's prior written
consent, which shall not be unreasonably withheld. Notwithstanding anything
contained in this Lease to the contrary, Tenant shall not sublease more than
30,000 square feet of office space (excluding warehouse space which may be
sublet without use restriction and with no limitation in rental rate) in the
aggregate of the Leased Premises, and the rent for any such sublease shall not
be for an amount less than $8.50 per square foot net before the earlier of (i)
36 months from the Commencement Date or (ii) the date 100,000 rentable square
feet of space in Landlord's building known generally as Building 2 on Lot No. 1
shown on the Subdivision Plan (as defined in EXHIBIT H) has been leased.
Provided that the use by the assignee or sublessee complies with the
requirements of Article 8 of this Lease, Tenant may, without Landlord's consent,
assign this Lease or sublease all or any part of the Leased Premises at any time
during the Term to (a) an Affiliated Person of Tenant or (b) a successor entity
created by merger, reorganization, recapitalization, or acquisition. For
purposes of this Section, the words "Affiliated Person of Tenant" mean a Person,
directly or indirectly, through one or more intermediaries, controlled by Tenant
or under common control with Tenant. Tenant shall pay to Landlord one-half of
the amount of assignment or sublet proceeds (net of
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commissions, tenant improvements and other expenses) in excess of $8.50 per
square foot in connection with any assignment or sublease to parties other than
those referred to in (a) and (b) above.
Section 27.02. LIABILITY OF IBM. If Tenant assigns or sublets hereunder,
Tenant shall notify Landlord thereof and Tenant shall remain responsible for the
faithful performance and observance of all of its covenants and obligations set
forth in this Lease. Landlord agrees that if Tenant assigns this Lease and the
assignee defaults and fails to cure such default within the applicable grace
period provided in Article Twenty-Four, Tenant shall have the right to recover
possession of the Leased Premises by curing the assignee's default within such
grace period.
ARTICLE TWENTY-EIGHT
EQUAL EMPLOYMENT OPPORTUNITY
There are incorporated in this Lease the provisions of Executive Order
11246 (as amended) of the President of the United States on Equal Employment
Opportunities and the rules and regulations issued pursuant thereto with which
Landlord represents that it will comply unless exempted.
ARTICLE TWENTY-NINE
QUIET ENJOYMENT
Provided Tenant performs the covenants and obligations in this Lease on
Tenant's part to be performed, Landlord covenants and agrees to take all
necessary steps to secure and to maintain for the benefit of Tenant the quiet
and peaceful possession of the Leased Premises, the Common Buildings Facilities
and Buildings Parking Area for the Term, without hindrance, claim or molestation
by Landlord or any other Person claiming by, through or under Landlord.
ARTICLE THIRTY
WAIVER
Failure by either party to complain of any action, inaction or default of
the other party shall not constitute a waiver of the aggrieved party's rights
hereunder. Waiver by either party of any right to claim a default of the other
party shall not constitute a waiver of any right to claim a subsequent default
of the same obligation or to claim any other default, past, present or future.
Landlord and Tenant hereby waive trial by jury in any action, proceeding or
counterclaim brought by either against the other concerning any matters
whatsoever arising out of or in any way connected with this Lease or the
relationship of the parties hereunder.
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ARTICLE THIRTY-ONE
PARTIAL INVALIDITY
If any covenant, condition or provision of this Lease, or the application
thereof to any Person or circumstance, shall be held to be invalid or
unenforceable, then in each such event the remainder of this Lease or the
application of such covenant, condition or provision to any other Person or any
other circumstance (other than those as to which it shall be invalid or
unenforceable) shall not be thereby affected, and each covenant, condition and
provision hereof shall remain valid and enforceable to the fullest extent
permitted by the Laws.
ARTICLE THIRTY-TWO
RULES AND REGULATIONS
Section 32.01. TENANT'S OBLIGATION. Tenant shall abide by and observe
the rules and regulations marked EXHIBIT F and such other rules and regulations
which are necessary for the safety, security, care and appearance of the Project
or the preservation of good order therein, or for the operation and maintenance
of the Project or equipment therein (the "Rules and Regulations"); provided the
same are in conformity with common practice and usage in similar buildings, are
not inconsistent with the provisions of this Lease and apply to all tenants and
occupants of the Buildings, and provided further that a copy thereof is received
by Tenant.
Section 32.02. STANDARDS APPLICABLE TO LANDLORD. Landlord shall (a) not
discriminate against Tenant in enforcing the Rules and Regulations; (b) not
unreasonably withhold or delay its consent to any approval required by Tenant
under the Rules and Regulations, and (c) exercise its judgment in good faith in
any instance when the exercise of Landlord's judgment under the Rules and
Regulations is required.
Section 32.03. LANDLORD'S ENFORCEMENT. Landlord shall use reasonable
efforts to obtain compliance of the Rules and Regulations by all tenants and
other occupants within the Project limits, but Landlord may permit reasonable
waivers so long as such waivers do not unreasonably interfere with or materially
and adversely affect Tenant in the conduct of its business in the Leased
Premises or violate any rights granted to Tenant under this Lease.
Section 32.04. CONFLICT. If there is a conflict between or ambiguity
created by the provisions of this Lease and Rules and Regulations published
pursuant to this Article, the provisions of this Lease shall control and be
binding on the parties hereto.
ARTICLE THIRTY-THREE
ESTOPPEL CERTIFICATES
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Section 33.01. TENANT'S ESTOPPEL CERTIFICATE. Tenant agrees, at any time
and from time to time, upon not less than ten (10) days prior notice from
Landlord, to execute, acknowledge and deliver to Landlord or any Person
designated by Landlord a statement in writing (1) certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that this Lease is in full force and effect as modified and stating the
modifications); (2) whether or not the Term has commenced and if it has
commenced, stating the dates to which the Annual Rent and Additional Rent have
been paid by Tenant, and (3) stating, to the best of Tenant's knowledge, whether
or not Landlord is in default in the performance of any covenant, agreement or
condition contained in this Lease, and if Tenant has knowledge of such a
default, specifying each such default.
Section 33.02. LANDLORD'S ESTOPPEL CERTIFICATE. Prior to commencement of
and during the Term Landlord shall, within ten (10) days after Tenant's request,
deliver an estoppel certificate to Tenant or any Person designated by Tenant
relative to the status of this Lease and/or any ground lease, underlying lease
and/or mortgage encumbering the Project.
ARTICLE THIRTY-FOUR
EXECUTION OF LEASE
THIS DOCUMENT SHALL NOT BE A VALID AGREEMENT WHICH IS BINDING ON EITHER
PARTY HERETO UNTIL AT LEAST ONE (1) COUNTERPART, EXECUTED BY DULY AUTHORIZED
REPRESENTATIVES OF LANDLORD AND TENANT, HAS BEEN DELIVERED BY EACH PARTY TO THE
OTHER.
ARTICLE THIRTY-FIVE
COUNTERPARTS
When several counterparts of this Lease have been executed, each shall be
considered an original for all purposes; provided, however, that all
counterparts shall, together, constitute one and the same instrument.
ARTICLE THIRTY-SIX
ANTENNA
Tenant, at its cost, may install and, once installed, modify and maintain a
microwave, satellite or other antenna communications system on the roof of the
Buildings for use in connection with Tenant's business. Tenant shall furnish
detailed plans and specifications for the system (or modification) to Landlord
for approval, which approval shall not be unreasonably withheld or delayed.
Upon approval, the system shall be installed, at Tenant's expense, by a
contractor selected in the manner agreed to in Section 13.02. Tenant is hereby
granted such easements and licenses for (a) use of any Buildings shafts and
other Common
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Buildings Facilities required to install the electrical or communication wiring,
(b) access to the roof at all reasonable times and in emergencies and (c) use of
a mutually agreed upon area of the roof to install and operate the system.
Tenant shall be responsible for maintenance of the Common Buildings Facilities,
Buildings and roof associated with the antenna and for procuring whatever
licenses or permits may be required for the use or operation of the system, and
Landlord makes no warranties or representations as to the permissibility of the
system under applicable Laws. The system shall not constitute a nuisance or
unreasonably interfere with the operations of Landlord or other tenants
occupying the Project. Landlord agrees that after the date Tenant installs its
system, Landlord will not permit the installation of a similar system on the
roof of the Buildings by any Person without Tenant's prior written approval,
which approval shall not be unreasonably withheld or delayed; provided that
Tenant may withhold approval where the installation and/or operation of the
other system would interfere with the operation of Tenant s system.
Notwithstanding any other provision of this Lease to the contrary, Tenant shall
remove Tenant's rooftop communications system in accordance with Article 16 of
this Lease.
ARTICLE THIRTY-SEVEN
BROKER
Each party warrants that it has had no dealings with any broker or agent in
connection with the negotiation or execution of this Lease except as may be
specified in Section 1 hereof and each party agrees to indemnify the other
against all costs, expenses, attorneys fees or other liability for commission or
other compensation or charges claimed by any other broker or agent claiming the
same by, through or under said party.
ARTICLE THIRTY-EIGHT
ARBITRATION
Section 38.01. APPLICABILITY.
(a) If arbitration is agreed upon hereunder as a dispute resolution
procedure, the arbitration shall be conducted as provided in this Article. All
proceedings shall be conducted according to the Commercial Arbitration Rules of
the American Arbitration Association, except as hereinafter provided. No action
at law or in equity in connection with any such dispute shall be brought until
arbitration hereunder shall have been waived, either expressly or pursuant to
this Article. The judgement upon the award rendered in any arbitration
hereunder shall be final and binding on both parties hereto and may be entered
in any court having jurisdiction thereof.
(b) During an arbitration proceeding pursuant to this Article, the parties
shall continue to perform and discharge all of their respective obligations
under this Lease, except as otherwise provided in this Lease.
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Section 38.02. NOTICE AND DEMAND. All disputes that may be arbitrated in
accordance with this Article shall be raised by notice to the other party, which
notice shall state with particularity the nature of the dispute and the demand
for relief, making specific reference by article number and title of the
provisions of this Lease alleged to have given rise to the dispute. The notice
shall also refer to this Article and shall state whether or not the party giving
the notice demands arbitration under this Article. If no such demand is
contained in the notice, the other party against whom relief is sought shall
have the right to demand arbitration under this Article within five (5) business
days after such notice is received. Unless one of the parties demands
arbitration, the provisions of this Article shall be deemed to have been waived
with respect to the dispute in question.
Section 38.03. SELECTION OF ARBITRATOR. Tenant and Landlord shall
mutually and, promptly select one person who has demonstrated at least ten (10)
years experience in commercial real estate matters and, in particular, the
subject matter of the dispute, to act as arbitrator hereunder. If a selection
is not made within thirty (30) days after a demand for arbitration is made, upon
the request of either party the arbitrator shall be appointed by The American
Arbitration Association. The arbitration proceedings shall take place at a
mutually acceptable location in Philadelphia, Pennsylvania.
Section 38.04. SCOPE.
(a) When resolving any dispute, the arbitrator shall apply the pertinent
provisions of this Lease without departure therefrom in any respect. The
arbitrator shall not have the power to change any of the provisions of this
Lease, but this Section shall not prevent in any appropriate case the
interpretation, construction and determination by the arbitrator of the
applicable provisions of this Lease to the extent necessary in applying the same
to the matters to be determined by arbitration. The arbitrator shall limit his
or her deliberations to the following issues only and no others:
(1) under Article Six, Nine or Twenty-Four of this Lease (a) whether
a party has committed an event of default, (b) whether a party either has failed
to cure the default within the grace period allowed by the provisions of this
Lease for curing the default or, having eventually cured the default,
nevertheless has failed to proceed with due diligence, or (c) whether the length
of time specified by Tenant in a notice of default given under Article Six, Nine
or Twenty-Four was reasonable, taking into consideration the nature of the
default and surrounding circumstances (such as availability of parts, required
municipal approvals, and effect of the default on occupants and invitees of the
Project) existing at the time notice was given.
(2) whether an item included in Landlord's Statement as Operating
Expenses or Real Estate Taxes is properly includable pursuant to Article Three.
(b) The right of Landlord and Tenant to submit a dispute to arbitration is
limited to
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issues agreed in this Lease to be submitted to arbitration.
ARTICLE THIRTY-NINE
EXCUSABLE DELAY
Whenever a party hereto is required by the provisions of this Lease to
perform an obligation and such party is prevented beyond its reasonable control
from doing so by reason of an Excusable Delay, such party shall be temporarily
relieved of its obligation to perform, provided it promptly notifies the other
party of the specific delay and exercises due diligence to remove or overcome
it. The words "Excusable Delay" shall mean any delay due to strikes, lockouts
or other labor or industrial disturbance; civil disturbance; future order of any
government, court or regulatory body claiming jurisdiction; act of the public
enemy; war, riot, sabotage, blockade or embargo; failure or inability to secure
materials, supplies or labor through ordinary sources by reason of shortages or
priority or similar regulation or order of any government or regulatory body;
lightning, earthquake, fire, storm, hurricane, tornado, flood, washout or
explosion, or act or omission of one party hereto which prevents the party
claiming delay from complying, or which materially and adversely interferes with
the claiming party's ability to comply with an obligation under this Lease on
its part to be performed.
ARTICLE FORTY
MISCELLANEOUS
Section 40.01. RULES OF INTERPRETATION. This Lease shall be strictly
construed neither against Landlord or Tenant; each provision hereof shall be
deemed both a covenant and a condition running with the Land; except as
otherwise expressly provided in this Lease and its Exhibits and other
attachments, the singular includes the plural and the plural includes the
singular; "or" is not exclusive; a reference to an agreement or other contract
includes supplements and amendments thereto to the extent permitted by this
Lease; a reference to the Laws includes any amendment or supplement to such
Laws; a reference to a Person includes its permitted successors and assigns;
accounting provisions have the meanings assigned to them by generally accepted
accounting principles and practices applied on a consistent basis; the words
"such as," "include," "includes" and "including" are not limiting; except as
specifically agreed upon in this Lease, any right may be exercised at any time
and from time to time and all obligations are continuing obligations throughout
the Term, and in calculating any time period, the first day shall be excluded
and the last day shall be included and all days are calendar days unless
otherwise specified.
Section 40.02. NO EXCLUSIVE REMEDIES. No remedy or election given by any
provision in this Lease shall be deemed exclusive unless so indicated, but each
shall, wherever possible, be cumulative in addition to all other remedies at law
or in equity which either party may have arising out of an event of default of
the other party.
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Section 40.03. PROJECT CONTRACTORS AND SUPPLIERS. Except as otherwise
specifically set forth in this Lease, Landlord hereby covenants and represents
that Tenant may deal with any Person for services (including food and vending
services), supplies, materials, labor, equipment, transportation, tools,
machinery and any other similar or dissimilar services or items in connection
with the use and occupation of the Leased Premises and any work performed
therein.
Section 40.04. GOVERNING LAWS. This Lease shall be governed in all
respects by the Laws of the State in which the Project is located.
Section 40.05. NON-DISCLOSURE OF LEASE.
(a) Prior to the Commencement Date, Landlord and its agents, employees and
contractors shall not disclose the existence of this Lease without Tenant's
written consent.
(b) Landlord, its agents, employees and contractors shall keep the
provisions of this Lease in confidence and shall not publish or disclose the
same at any time during the Term except as permitted by Article Forty-One.
(c) This Section shall not apply to disclosures that must be made by
Landlord or Tenant to obtain financing for, or in connection with any sale or
leasing of any portion of, any portion of the Project.
ARTICLE FORTY-ONE
MEMORANDUM OF LEASE
Neither this Lease nor any memorandum of this Lease shall be recorded by
either Landlord or Tenant.
ARTICLE FORTY-TWO
BINDING AGREEMENT
This Lease shall bind and inure to the benefit of Landlord and its
executors, distributees and heirs, and to Tenant's and Landlord's respective
representatives, successors and permitted assigns.
ARTICLE FORTY-THREE
ENVIRONMENTAL MATTERS
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(a) Except as otherwise specifically provided in this Lease, (i) this
Lease is not intended to address the rights and liabilities of the parties with
respect to Environmental Conditions at the Property, compliance with
Environmental Laws, Compliance with ISRA and Compliance with the ACO, as such
terms are defined in the Environmental Indemnification Agreement by and between
Landlord, as purchaser by assignment from Xxxxxx/Xxxxxxx Investment Corporation,
and Tenant, as seller, dated August 11, 1994, as it may be amended, (the
"Environmental Agreement"), and (ii) the Environmental Agreement sets forth the
entire and exclusive rights and obligations of the parties with respect to
Environmental Conditions at the Property, compliance with Environmental Laws,
Compliance with ISRA and Compliance with the ACO, as such terms are defined in
the Environmental Agreement.
(b) Beginning on the Commencement Date and continuing during the term of
this Lease and thereafter until Seller has fully completed the groundwater
remediation at the Property, Tenant shall reimburse Landlord in an amount up to
Fifteen Thousand Dollars ($15,000.00) annually for Landlord's cost of engaging
environmental consultants to monitor the Tenant's groundwater remediation
activities at or in connection with the Property. Such amounts shall be
reimbursed by Tenant by submission of copies of invoices from Landlord's
consultants. Tenant's obligations under this Section 43(b) shall be applicable
notwithstanding anything to the contrary contained in this Agreement or the
Environmental Agreement. This Section 43(b) shall survive expiration or sooner
termination of this Lease.
(c) Tenant's obligation to pay Annual Rent and Additional Rent shall
continue without deduction, offset or abatement, in the event that Tenant is
unable to use the Leased Premises in whole or in part, as a direct result of
investigation or remediation activities undertaken by Tenant, or on behalf of
Tenant with Tenant's approval, at the Property in connection with Tenant's
environmental remediation obligations under the Environmental Agreement,
including Tenant's Compliance with ISRA and Compliance with the ACO.
ARTICLE FORTY-FOUR
[INTENTIONALLY OMITTED]
ARTICLE FORTY-FIVE
[INTENTIONALLY OMITTED]
ARTICLE FORTY-SIX
ENTIRE AGREEMENT
This Lease, including all Exhibits and other attachments referred to
herein, contains the entire agreement of Landlord and Tenant with respect to the
matters stated herein, and may not be modified except by an instrument in
writing which is signed by both parties and delivered
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by each to the other. Exhibits and such other attachments are incorporated
herein as fully as if their contents were set out in full at each point of
reference to them.
ARTICLE FORTY-SEVEN
TERMINATION OF FIRST LEASE
This Lease is intended to replace and supersede the First Lease, from and
after the Commencement Date. Accordingly, Landlord and Tenant agree that the
First Lease shall be terminated as of the Commencement Date with the same force
and effect as if such date were the date originally set forth in the First Lease
for the termination thereof. The foregoing shall not be construed to relieve
either Landlord or Tenant from any liability or obligation arising or accruing
under the First Lease prior to the Commencement Date.
IN WITNESS WHEREOF, this Lease has been executed by the duly authorized
representatives of Landlord and Tenant as of the date first above written.
LANDLORD:
SOUTH BRUNSWICK INVESTORS,
L.P., a Delaware limited partnership
By: SOUTH BRUNSWICK
INVESTMENT COMPANY, L.L.C.
By:_____________________________
Xxxx X. Xxxxxx, III,
Authorized Member
TENANT:
ATTEST: INTERNATIONAL BUSINESS
MACHINES CORPORATION
________________________ By:_____________________________
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EXHIBIT A1 TO A4
FLOOR PLANS OF LEASED PREMISES
EXHIBIT B
SUPPLEMENTAL AGREEMENT
By this Supplemental Agreement dated _______________, 1995, the parties to
Amended and Restated Lease dated _______________, 1995 made by and between SOUTH
BRUNSWICK INVESTORS, L.P., as Landlord and INTERNATIONAL BUSINESS MACHINES
CORPORATION, as Tenant, agree as follows with respect to the Leased Premises
located at 000 Xxxxx Xxxx, Xxxxxx, Xxx Xxxxxx.
1. The Work (Tenant's Improvements and Base Building), if any, required
to be constructed and finished by Landlord in accordance with the provisions of
the Lease has been Substantially Completed by Landlord and accepted by Tenant.
2. The Leased Premises have been delivered to and accepted by Tenant.
3. The Commencement Date of the Lease is ____________ __, 19__, and the
expiration date is March 31, 2002, subject, however, to the provisions of the
Lease.
4. The Leased Premises consists of 200,000 square feet of rentable area.
5. Commencing on the Rent Commencement Date (as defined in the Lease) the
Annual Rent shall be $1,700,000.00, payable in equal monthly installments of
$141,666.67, subject, however, to the provisions of the Lease. The Annual Rent
has been calculated at the annual rate of $8.50 per square foot of rentable area
of the Leased Premises.
IN WITNESS WHEREOF, this Supplemental Agreement has been executed by the
duly authorized representatives of Landlord and Tenant as of the date first
above written.
Landlord:
SOUTH BRUNSWICK INVESTORS, L.P., a
Delaware limited partnership
By: SOUTH BRUNSWICK INVESTMENT
COMPANY, L.L.C.
By:_________________________________
Xxxx X. Xxxxxx, III
Authorized Officer
Tenant:
INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation
By:_________________________________
Name:
Title:
EXHIBIT C
HEAT, VENTILATION AND AIR CONDITIONING SPECIFICATIONS
Landlord shall provide heat, ventilation and air conditioning on a year-round
basis throughout the Leased Premises and Common Buildings Facilities. The
equipment shall be capable of maintaining the following indoor design
conditions:
Winter: 72 degrees FDB with 30% RH
Summer: 78 degrees FDB with 55% RH
The equipment shall permit operation within the parameters defined by the
"Comfort Chart" shown in the latest edition of ASHRAE Standard 55, "Thermal
Environmental Conditions For Human Occupancy.
The minimum outdoor air supply rates shall not be less than 0.15 cfm/npsf or 20
cfm/person of outdoor air, whichever is greater. Outdoor air for ventilation
shall meet the requirements of the latest edition of ASHRAE Standard 62,
"Ventilation For Acceptable Indoor Air Quality."
The central HVAC equipment shall be capable of cooling a process load (personal
computers) in every work station. The planning load for each workstation is 250
xxxxx.
Systems serving general office areas shall be equipped with 80% efficiency
filters, rateDEG. d in accordance with the atmospheric dust spot method per
ASHRAE Standard 52, "Method Of Testing Air Cleaning Devices Used In General
Ventilation For Removing Particulate Matter."
Tenant represents to Landlord that the Buildings equipment meets the above
criteria as of the Commencement Date.
EXHIBIT D
INTENTIONALLY OMITTED
EXHIBIT E
BUILDING PARKING AREA
EXHIBIT F
RULES AND REGULATIONS
1. No sign, lettering, picture, notice or advertisement shall be placed
on any outside window or in any position so as to be visible from outside the
Buildings.
2. Tenant, its customers, invitees, licensees, and guests shall not
obstruct sidewalks, entrances, passages, courts, corridors, vestibules, halls,
elevators and stairways in and about the Buildings. Tenant shall not place
objects against glass partitions or doors or windows or adjacent to any open
common space which would be unsightly from the Buildings corridors or from the
exterior of the Buildings, and will promptly remove the same upon notice from
Landlord.
3. Without the prior written consent of Landlord, Tenant shall not make
noises, cause disturbances, create vibrations, odors or noxious fumes or use or
operate any electrical or electronic devices or other devices that emit sound
waves or are dangerous to other tenants and occupants of the Buildings or that
would interfere with the operation of any device or equipment or radio or
television broadcasting or reception form or within the Buildings or elsewhere
and shall not place or install any projections, antennae, aerials or similar
devices inside or outside of the premises.
4. Tenant shall not make any room-to-room canvass to solicit business
from other tenants in the Buildings, and shall not exhibit, sell or offer to
sell, use, rent or exchange any item or services in or from the Leased Premises
unless ordinarily embraced within the Tenant's use of the Leased Premises as
specified in its Lease.
5. Tenant shall not waste electricity or water and agrees to cooperate
fully with Landlord to assure the most effective operation of the Buildings
heating and air conditioning and shall refrain from attempting to adjust any
controls. Tenant shall keep public corridor doors closed.
6. Bicycles shall not be permitted in the Buildings in other than
Landlord-designated locations.
7. Tenant assumes full responsibility for protecting its space from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Leased Premises closed and secured.
8. Peddlers, solicitors and beggars shall be reported to the office of
the Building or as Landlord otherwise requests.
9. Tenant shall neither install nor operate machinery or any mechanical
devices of a nature not directly related to Tenant's ordinary use of the Leased
Premises without the
written permission of the Landlord.
10. No person or contractor not employed by Landlord shall be used to
perform window washing, cleaning in the Leased Premises.
11. Unless Landlord so consents, Tenant shall not, and Tenant shall not
permit or suffer anyone to:
(i) Xxxx in the Leased Premises;
12. Tenant shall not:
(i) Use the Leased Premises for lodging or for any immoral or
illegal purposes.
(ii) Use the Leased Premises to engage in the manufacture or sale of,
or permit the use of, any spirituous, fermented, intoxicating or
alcoholic beverages on the Leased Premises.
(iii) Use the Leased Premises to engage in the manufacture or
sale of, or permit the use of, any illegal drugs on the
Leased Premises.
13. In no event shall any person bring into the Buildings inflammables
such as gasoline, kerosene, naptha and benzene, or explosives or firearms or any
other article of intrinsically dangerous nature. If by reason of the failure of
Tenant to comply with the provisions of this paragraph, any insurance premium
payable by Landlord for all or any part of the Buildings shall at any time be
increased above normal insurance premiums for insurance not covering the items
aforesaid, Landlord shall have the option to either terminate the Lease or to
require Tenant to make immediate payment for the whole of the increased
insurance premium.
14. Tenant shall cooperate and participate in all security programs
affecting the Buildings.
15. Tenant shall cause all floors within the Premises to be carpeted;
provided that areas such as kitchens, utility closets, entrances, photo-copying
areas and other similar areas may contain another type of floor-covering if
Tenant first obtains written approval from Landlord.
16. Tenant shall not drill, or permit to be drilled, any holes in any
window frames (mullions) located within the Premises.
Landlord shall have the right from time to time to prescribe additional rules
and regulations
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which, in its judgement, may be desirable for the use, entry, operation and
management of the Premises and Buildings, each of which rules and regulations
and any amendments thereto shall become a part of this Lease without further
action of the parties. Tenant shall comply with all such rules and regulations;
provided, however, that such rules and regulations shall not substantially
diminish any right or privilege herein expressly granted to Tenant.
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EXHIBIT G
INTENTIONALLY OMITTED
EXHIBIT H
ALL THAT CERTAIN lot, tract, or parcel of land, together with buildings and
improvements thereon, situate, lying and being in the Township of South
Brunswick, County of Middlesex, State of New Jersey and known as Lot No. 2
(31.748 acres +/-) as more particularly bounded and described according to a
plan prepared by Xxxx Xxxxx & Associates, Registered Professional Engineers
and Registered Land Surveyors of Levittown, Pennsylvania dated April 7, 1995
and numbered D26320303 (the "Subdivision Plan"), as follows to wit:
(Describe Lot No. 2 by metes and bounds.)
EXHIBIT I
LIST OF HOLIDAYS
EXHIBIT J
INTENTIONALLY OMITTED
EXHIBIT K
SUBORDINATION, ATTORNMENT AND NONDISTURBANCE AGREEMENT
THIS AGREEMENT, made this _____day of ___________, 19__, by and between
INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York corporation, having its
principal office at Xxx Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx ("IBM") and
_____________________________________ a _______________ banking corporation,
having its principal office at _______________________________ ("Mortgagee").
WITNESSETH:
WHEREAS, _____________________________ ("Landlord") and IBM have entered
into a lease (the "Lease") dated _______________ of certain commercial office
space described therein (the "Premises") located in ___________________________
and erected on the tract of land described in EXHIBIT H, attached hereto and
made a part hereof; and
WHEREAS, Landlord had made, executed and delivered to Mortgagee a certain
promissory note secured by a first lien Deed of Trust (the "Mortgage") on the
land and a building thereon of which the Premises are a part; and
WHEREAS, the Lease will be assigned by Landlord to Mortgagee as further
security for the promissory note.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
hereinafter contained and other good and valuable consideration, the receipt and
sufficiency which are hereby acknowledged, IBM and Mortgagee, intending to be
legally bound hereby, covenant and agree as follows:
1. The Lease shall be subject and subordinate to the lien of the Mortgage
and to all of the terms, conditions and provisions thereof, to all advances made
or to be made thereunder, and to any renewals, extensions, modifications or
replacements thereof.
2. Provided IBM is not in default beyond the applicable grace period
provided for in the Lease:
(a) IBM shall not be joined as an adverse or party defendant in any
action or proceeding which may be instituted, or commenced by Mortgagee to
foreclose or enforce the Mortgage.
(b) IBM shall not be evicted from the Premises nor shall any of IBM's
rights under the Lease be affected or disturbed in any way by reason of this
subordination or any modifications of or default under the Mortgage.
(c) IBM's leasehold estate under the Lease shall not be terminated or
disturbed during the term of the Lease, as it may be extended, by reason of any
default under the Mortgage.
(d) Mortgagee hereby agrees to make available to Landlord the
insurance proceeds otherwise payable to Landlord and/or Mortgagee, when and to
the extent necessary, subject to Mortgagee's right to control the disbursement
of such proceeds, for Landlord to comply with its obligations of repair and
restoration as required by the provisions of the Lease.
(e) If Mortgagee or any successor in interest to it shall succeed to
the rights of Landlord under the Lease, whether through possession; termination
or cancellation of the Lease, surrender, assignment, judicial action,
sublettings, foreclosure action or delivery of a deed or otherwise, IBM will
attorn to and recognize such successor-landlord as IBM's landlord and the
successor-landlord will accept such attornment and recognize IBM's rights of
possession and use of the Premises in accordance with the provisions of the
Lease and, without further evidence of such attornment and acceptance, the
parties shall be bound by and comply with all of the terms, provisions,
covenants, and obligations contained in the Lease on their respective parts to
be performed.
3. Mortgagee shall not be liable for any default by Landlord under the
Lease occurring prior to the date on which Mortgagee shall have succeeded to the
rights of Landlord under the Lease; Mortgagee shall not be liable for any
default by Landlord under the lease occurring prior to the date on which
Mortgagee shall have succeeded to the rights provided, however, that nothing
contained in this Section 3 shall be deemed to release Mortgagee from any
liability arising out of defaults occurring prior or subsequent to the date on
which Mortgagee shall have succeeded to the rights of Landlord under the Lease
if IBM shall have given Mortgagee a notice of such defaults as and when they
occur and shall be given Mortgagee the time required by Paragraph 4 below to
remedy them.
4. IBM will not terminate or cancel the Lease or the term thereof by
reason of a default thereunder by Landlord unless and until IBM has given
Mortgagee written notice of the default at the same time Landlord is notified
thereof, at Mortgagee's address stated on page one hereof or such other address
designated in writing to IBM, and has afforded Mortgagee such time granted to
Landlord under the Lease to remedy the particular default, plus ten (10) days.
5. (a) IBM will not pay an installment of rent or any part thereof more
than one month in advance.
(b) After notice from Mortgagee to IBM, IBM will pay to Mortgagee, or
to such person or firm designated by Mortgagee, all rentals and other moneys due
and owing to
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Landlord under the Lease.
(c) After the date hereof, no amendment entered into between IBM and
Landlord, which materially and adversely affects the security lien of Mortgagee,
shall be valid against Mortgagee unless Mortgagee has approved such amendment
writing.
6. This Agreement shall continue in effect until payment in full of all
sums secured by the Mortgage are paid, and the Mortgage is satisfied.
7. This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective legal representatives, successors and
assigns and may not be modified orally or by any course of conduct other than by
a written instrument signed by both parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
WITNESS: INTERNATIONAL BUSINESS
MACHINES CORPORATION
_________________________ By:_____________________________
WITNESS: (Mortgagee)
_________________________ By:_____________________________
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EXHIBIT L
INTENTIONALLY OMITTED
EXHIBIT M
LIST OF TENANT OWNED PROPERTY
1. All furniture located in the Leased Premises.
2. All computer equipment located with Leased Premises.
3. All equipment and fixtures located in the Leased Premises not
mechanically fastened to the structure or building service systems (including
shelving racks in the warehouse area).
AMENDMENT TO AMENDED AND RESTATED LEASE
THIS AMENDMENT TO AGREEMENT OF LEASE MENDED AND RESTATED LEASE
dated as of the 1st day of June, 1996, by and between SOUTH BRUNSWICK
INVESTORS, L.P., a Delaware limited partnership having a mailing address at
c/o THE XXXXXXX GROUP, Suite 1105, One Xxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000, hereinafter called "Landlord," and INTERNATIONAL BUSINESS
MACHINES CORPORATION, a New York corporation, having its principal office at
Xxx Xxxxxxx Xxxx, Xxxxxx, Xxx Xxxx 00000, hereinafter called "Tenant."
Background
A. Pursuant to an Amended and Restated Lease dated August 11,
1995 (the "Lease"), Tenant leased from Landlord premises located in South
Brunswick Township, Middlesex County, New Jersey. Capitalized terms used
herein and not otherwise defined shall have the meanings given to them in the
Lease.
B. Landlord and Tenant now wish to modify certain terms of the
Lease, as set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
in this Amendment and intending to be legally bound hereby, Landlord and
Tenant agree as follows:
1. Section 2.03 of the Lease is hereby deleted in its entirety
and the following is substituted in lieu thereof:
Section 2.03. EXTENDED TERM. Tenant shall have the option to extend
the term of this Lease for Building 1 (but not for Building 3) for One (1)
consecutive Five (5) year term (the "Extended Term"). Such option shall be
exercised by written notice to Landlord given at least nine (9) months
prior to the expiration of the Initial Term. The Extended Term shall be
upon the same covenants, agreements, provisions and conditions that are
contained herein for the Initial Term, except that Tenant shall not have
any further option to extend the term of this Lease. The Annual Rent
specified in Section 3.02 shall be payable during the Extended Term.
2. In Section 2.04 of the Lease, the phrase "as to entire leased
premises or only as to the entirety of Building 1 or the entirety of Building
3, as Tenant shall elect in Tenant's notice of termination" is hereby
deleted, and the following is substituted in lieu thereof: "of Building 1".
3. Except as expressly set forth herein, all terms and conditions
of the Lease shall remain in full force and effect and are incorporated
herein by reference. The parties ratify and confirm the Lease as amended by
this Amendment. This Amendment shall
be binding upon and inure to the benefit of the parties hereto and their
successors and assigns.
4. This Amendment may be executed in counterpart with the same
effect as if the signatures thereto and hereto were taken upon the same
instrument, but all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed as of the day and year first above written.
LANDLORD:
SOUTH BRUNSWICK INVESTORS, L.P., a Delaware
limited partnership
By: South Brunswick Investment Company,
L.L.C.
By:__________________________
Name:________________________
Title:_______________________
TENANT:
INTERNATIONAL BUSINESS
MACHINES CORPORATION
By:_______________________________
Name: ____________________________
Title: ___________________________
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