Exhibit 10.36
OFFICE BUILDING LEASE AGREEMENT
000 XXXXX XXXXXX, XXXXXX, XXX XXXXXX
LANDLORD: 744 XXXXX INVESTORS LLC
TENANT: BROADVIEW NETWORKS HOLDINGS, INC.
DATED: AS MARCH 15, 2000
TABLE OF CONTENTS
Article Description
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1. Definitions and Basic Provisions
2. Lease Grant
3. Rent
4. Increases in Base Rent
5. Landlord's Obligations
6. Intentionally Deleted
7. Permitted Use
8. Tenant's Repairs and Alterations
9. Subletting and Assigning
10. Indemnity
11. Subordination and Mortgagee's Right to Cure Landlord's Defaults
12. Rules and Regulations
13. Inspection
14. Condemnation
15. Casualty
16. Holding Over
17. Taxes on Tenant's Property
18. Events of Default
19. Remedies
20. Attorneys' Fees
21. Security Interest
22. Liens
23. Waiver of Subrogation
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24. Tenant's Insurance
25. Brokerage
26. Building Name
27. Estoppel Certificates
28. Notices
29. Force Majeure
30. Severability
31. Amendments; Binding Effect
32. Quiet Enjoyment
33. Gender
34. Joint and Several Liability
35. Captions
36. Exhibits and Attachments
37. No Joint Venture
38. Time of the Essence
39. Evidence of Authority
40. Governing Law
41. Entire Agreement
42. Exculpation
43. Covenants are Independent
44. Right to Relocate.
45. Hazardous Materials
46. Effect of Conveyance
47. Easements
48. Waiver of Right of Redemption
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49. Waiver of Trial by Jury
50. Interpretation
51. No Recordation of Lease
52. Electric Current
53. Intentionally Deleted
54. Tenant's Work
55. Cleaning
56. Guaranty
57. Landlord's Managing Agent
58. Cancellation
59. Option to Renew
60. Right of First Refusal
61. Arbitration
62. Generator
63. Satellite Dish
64. Letter of Credit
65. Other Definitions
EXHIBIT "A" ................................................ Outline of Premises
EXHIBIT "B" ......................................... Memorandum Confirming Term
EXHIBIT "C" .............................................. Rules and Regulations
EXHIBIT "D" ................................................. Special Provisions
EXHIBIT "E" ........................................ Work Letter [If applicable]
EXHIBIT "F" ........................................................... Guaranty
EXHIBIT "G" ............................................ Cleaning Specifications
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OFFICE BUILDING LEASE AGREEMENT
000 XXXXX XXXXXX, XXXXXX, XXX XXXXXX
This Office Building Lease Agreement (the "Lease") is entered into as of
the 15th day of March, 2000 by and between 744 XXXXX INVESTORS LLC ("Landlord"
or "Owner"), x/x XXX XXXXXXXXXX, XXX, 0000 Avenue of the Xxxxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 and BROADVIEW NETWORKS HOLDINGS, INC., a corporation,
with offices at 00-00 Xxxxx Xxxxxx, Xxxx Xxxxxx Xxxx, Xxx Xxxx 00000 ("Tenant").
WITNESSETH:
1. Definitions and Basic Provisions. Certain definitions and provisions
(the "Basic Lease Information") of this Lease are:
1.1 Lease Date: March 1,2000
1.2 Tenant: BROADVIEW NETWORKS HOLDINGS, INC.
1.3 Tenants Address: 000 Xxxxx Xxxxxx, Xxxxx 00xx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Contact:
Telephone:
1.4 Landlord: 744 Xxxxx Investors LLC
1.5 Landlord's Address: c/o CRC Management, LLC
1330 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxxxx X. Xxxxx
1.6 Premises: A portion of the tenth (10th) floor ("Premises" or
"Demised Premises") in the office building located at 000 Xxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000 (the "Building"), known as "744 Broad Street". Premises #1 and
Premises #2, both as defined hereinafter, are referred to collectively as the
"Premises" or the "Demised Premises". The Building and the land upon which it is
situated are herein sometimes collectively called the "Project". No vaults,
vault space or area, whether or not enclosed or covered, not within the property
line of the Building is leased hereunder, notwithstanding anything to the
contrary contained in or indicated on any sketch, blueprint or plan, or anything
contained elsewhere in this Lease. Landlord makes no representation as to the
location of the property line of the Building.
1.7 Lease Term: The term of the Lease for Premises #1 (as
hereinafter defined) shall commence upon vacant delivery of possession of the
Premises #1 and the date landlord has substantially completed that portion of
Landlord's Work [as hereinafter defined] described in sections [ii] and [iii] of
Exhibit "E", subject to adjustment provided in the Lease (the "Commencement Date
#1"), and shall expire on the Lease Expiration Date (as hereinafter defined). If
Commencement Date #1 is a date other than the first day of a month, the Lease
Term shall consist of said number of months in addition to the remainder of the
month in which Commencement Date #1 occurs. The term of the Lease for Premises
#2 (as hereinafter defined) shall commence on the date of substantial completion
of Landlord's work for Premises #2 as set forth in Exhibit "E" (the
"Commencement Date #2"), and shall expire, coterminously with "the term for
Premises #1, on the last day of the one hundred twenty-seventh (127th)
consecutive month thereafter (the "Lease Expiration Date"). If Commencement Date
#2 is a date other than the first day of a month, the Lease Term shall consist
of said number of months in addition to the remainder of the month in which
Commencement Date #2 occurs. When Landlord is of the opinion that the Landlord's
Work and/or Tenant Improvements (as defined in Exhibit E hereinafter) for
Premises #2 is Substantially Complete (as defined in Exhibit E hereinafter)
Landlord shall then notify
Tenant, subject to the terms and provisions of Exhibit "E". Anything contained
herein to the contrary notwithstanding, the term of this Lease for Premises #2
shall commence on (a) the date on which Landlord gives notice to Tenant that
Landlord's Work and/or Tenant Improvements will be Substantially Completed (as
defined in Exhibit "E"), subject to the provisions of Exhibit "E", or (b) the
date on which Tenant (or its agent) uses or occupies any portion of Premises #2,
whichever occurs first. The Substantial Completion (as defined in Exhibit "E")
of Landlord's Work and/or Tenant Improvements shall be subject to reasonable
extensions and delays resulting from acts of God, fire, strikes, lockouts, labor
trouble, inability to procure materials by reason of governmental restrictions,
riots, insurrection, war or other causes beyond the reasonable control of
Landlord. If Substantial Completion (as defined in Exhibit "E") of Landlord's
Work and/or Tenant Improvements is delayed by reason of any Tenant Delay and/or
Tenant's performance of Tenant's Work (both as hereinafter defined), the date of
Substantial Completion shall be accelerated by one (1) day for each day of
delay. In no event shall Landlord be required to commit personnel to the
performance of Landlord's Work and/or Tenant Improvements to negate a tenant
delay. The term "Tenant Delay" shall mean any delay that Landlord may encounter
in the completion of Landlord's Work and/or Tenant Improvements by reason of any
act, neglect, failure or omission of Tenant, its agents, servants, contractors,
architect or employees, in the performance of Tenant's obligations under this
Lease Amendment or exhibits hereto, including, but not limited to:
a. Any delay in submission of or inadequacy, after notice
of such inadequacy, of the information which must be
provided by Tenant to Landlord which is necessary for
Landlord to complete Landlord's Work and/or Tenant
Improvements;
b. Any delay due to changes made by or on behalf of Tenant,
at Tenant's request, regarding Landlord's Work and/or
Tenant Improvements;
c. Any delay due to Tenants request for items to be
installed within the Premises that have a delivery date
which does not provide sufficient time for installation
prior to the otherwise anticipated date of Substantial
Completion or that will delay the installation of any
other item of Landlord's Work and/or Tenant
Improvements;
d. Any delay due to Tenant performing Tenants Work or
otherwise interfering with Substantial Completion of
Landlord's Work and/or Tenant Improvements, e.g.,
failure to make payments to Landlord as required under
Exhibit E of this Agreement.
1.8 Base Rent:
A. Tenant shall pay Base Rent to Landlord for Premises #1 from
Commencement Date #1 in accordance with the following schedule:
Year One (1) $ 104,236.00 per annum
$ 8,686.33 per month
Year Two (2) $106,841.90 per annum
$ 8,903.49 per month
Year Three (3) $ 109,512.95 per annum
$ 9,126.08 per month
Year Four (4) $ 112,250.77 per annum
$ 9,354.23 per month
Year Five (5) $115,057.04 per annum
$ 9,588.09 per month
Year Six (6) $127,409.47 per annum
$ 10,617.46 per month
Year Seven (7) $130,594.71 per annum
$ 10,882.89 per month
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Year Eight (8) $ 133,859.57 per annum
$ 11,154.96 per month
Year Nine (9) $ 137,206.06 per annum
$ 11,433.84 per month
Year Ten (10) $ 140,636.21 per annum
$ 11,719.68 per month
Year Eleven (11) $144,152.12 per annum
$ 12,012.68 per month
B. Tenant shall pay Base Rent to Landlord for Premises #2 from
Commencement Date #2 in accordance with the following schedule:
Month One (1) through $441,782.00 per annum
Month Twelve (12) $ 36,815.17 per month
Month Thirteen (13) $ 452,826.55 per annum
through Month Twenty Four (24) $ 37,735.55 per month
Month Twenty Five (25) $464,147.21 per annum
through Month Thirty-six (36) $ 38,678.93 per month
Month Thirty-Seven (37) $ 475,750.89 per annum
through Month Forty-Eight (48) $ 39,645.91 per month
Month Forty-nine (49) $ 487,644.67 per annum
through Month Sixty (60) $ 40,637.06 per month
Month Sixty-one (61) $ 539,997.78 per annum
through Month Seventy-Two (72) $ 44,999.82 per month
Month Seventy-Three (73) $ 553,497.72 per annum
through Month Eighty-Four (84) $ 46,124.81 per month
Month Eighty-Five (85) $567,335.17 per annum
through Month Seventy-Two (96) $ 47,277.93 per month
Month Ninety-Seven (97) $ 581,518.55 per annum
through Month One Hundred Eight (108) $ 48,459.88 per month
Month One Hundred Nine (109) $ 596,056.51 per annum
through Month One Hundred Twenty (120)$ 49,671.38 per month
Month One Hundred Twenty-One (121) $ 610,957.92 per annum
through Month One Hundred $ 50,913.16 per month
Twenty-Seven (127)
1.9 Security Deposit: $325,000.00 (subject to reduction pursuant to
Article 64).
1.10 Tenant's Percentage: The percentage for the purposes of this
Lease, shall be 4.47% (.0447).
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1.11 Permitted Use: Subject to the terms and conditions of this
Lease, Premises #2 shall be used for general and administrative offices and
Premises #1 shall be used (i) as a laboratory for a telecommunications business
and (ii) for the operation of a telecommunications switch and other
telecommunications operations, however, at Tenant's option, the Premises may be
used for general and administrative offices only.
1.12 Lease Year: The period of twelve (12) months or less commencing
with the Commencement Date #1 and ending at midnight on December 31, 2000, each
successive period of twelve (12) months thereafter during the Lease Term, and
the final period of twelve (12) months or less commencing on January 1 of the
year in which the Lease Term expires. During any Lease Year within the Lease
Term that is less than twelve (12) full months, any amount to be paid for such
period shall be prorated, based on the actual number of months and the actual
number of days of any partial month assuming each month to have thirty (30)
days.
1.13 Anything in this lease to the contrary notwithstanding,
provided Tenant is not in monetary or material nonmonetary default (after the
expiration of any applicable notice and cure period) under the terms, covenants
and conditions of this Lease, Tenant shall have the right to use and occupy
Premises #1 free of Base Rent, for a period beginning with Commencement Date #1
through and including the date which is seven (7) months after Commencement Date
#1 (but Tenant shall pay all Additional Rent [hereinafter defined] and any
direct charges during the aforesaid free rent period), after which period the
Base Rent payments shall commence for Premises #1 (the "Rent Commencement Date")
in accordance with the terms of this Lease.
1.14 INTENTIONALLY DELETED
1.15 Tenant acknowledges and agrees that, in lieu of Operating
Expenses, a two and a half percent (2.5%) annual increase of the Base Rent has
been included in the Base Rent reserved hereunder.
1.16 Tenant acknowledges and agrees that, in lieu of any rent
abatement for Premises #2, Landlord is providing the Required Amps (as defined
in Exhibit "E") to the Premises.
2. Lease Grant.
2.1 In consideration of the Rent (as hereinafter defined) to be paid
and the other covenants and agreements to be performed by Tenant, Landlord does
hereby lease, demise and let unto Tenant Premises #1 [a portion of the tenth
(10th) floor], shown on the plan attached hereto as Exhibit "A" and incorporated
herein by reference, commencing on Commencement Date #1 and ending on the last
day of the Lease Term, unless sooner terminated as herein provided. In addition,
in consideration of the Rent (as hereinafter defined) to be paid and the other
covenants and agreements to be performed by Tenant, Landlord does hereby lease,
demise and let unto Tenant Premises #2 (a portion of the tenth (10th) floor],
shown on the plan attached hereto as Exhibit "A" and incorporated herein by
reference, commencing on Commencement Date #2 and ending on the last day of the
Lease Term, unless sooner terminated as herein provided. No easement for light,
air or view is granted, given or implied herein.
2.2 If this Lease is executed before the Premises become vacant, or
otherwise available for occupancy, or if any tenant or occupant of the Premises
holds over, and Landlord cannot acquire possession of the Premises prior to the
full execution and delivery of the Lease by both parties Landlord shall not be
in default hereunder, and Tenant, provided Landlord shall have Substantially
Completed Landlord's Work and Tenant Improvements in accordance with this Lease,
shall accept possession of the Premises when Landlord is able to tender the
same, and such date shall be deemed to be the date Tenant shall have accepted
the same as suitable for the purposes herein intended and to have acknowledged
that the same comply with Landlord's obligations. Within ten (10) days after
request of Landlord, Tenant shall give Landlord a document confirming
Commencement Date #1 and Commencement Date #2, and certifying that Tenant has
accepted delivery of the Premises and that the condition of the Premises
complies with Landlord's obligations hereunder. Such document shall be in the
form attached hereto as Exhibit "B" by this reference incorporated herein.
Notwithstanding anything to the contrary contained in any other Article of this
Lease, Landlord shall deliver possession of Premises #2 to Tenant on or before
ninety (90) days from the date that (i) Landlord and Tenant have approved of the
Working Drawings (as defined in Exhibit "E"), (ii) Landlord has obtained
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permits to commence the Tenant Improvements (as defined in Exhibit "E") for
Premises #2 and (iii) Tenant has received notice from Landlord that the Tenant
Improvement Costs (as defined in Exhibit "E") do not exceed the Office
Improvement Allowance (as defined in Exhibit "E"); however, in the event there
is an excess, the date shall be the date that Tenant agrees to pay Landlord for
the excess of the Tenant Improvement Costs over the Office Improvement Allowance
(the "Outside Date"). If Landlord does not deliver possession of Premises #2 as
required hereunder to Tenant on or before the Outside Date (except if Landlord's
failure is due to a Tenant Delay or force majeure, in which case such Outside
Date shall be extended one [11 day for each day of such Tenant Delay or force
majeure), then the date Tenant begins to pay Base Rent for Premises #2 shall be
postponed two (2) days for each day after the Outside Date that Landlord shall
have failed to so deliver Premises #2 as required to Tenant. Notwithstanding
anything to the contrary contained in any other Article of this Lease, Landlord
shall deliver possession of Premises #1 to Tenant on or before ninety (90) days
from the full execution and delivery of this Lease to Tenant or it's attorney
(the "Outside Date"). If Landlord does not deliver possession of Premises #1 as
required hereunder to Tenant on or before the Outside Date (except if Landlord's
failure is due to a Tenant Delay or force majeure, in which case such Outside
Date shall be extended one [1] day for each day of such Tenant Delay or force
majeure), then the date Tenant begins to pay Base Rent for Premises #1 shall be
postponed two (2) days for each day after the Outside Date that Landlord shall
have failed to so deliver Premises #1 as required to Tenant. Notwithstanding
anything to the contrary contained in the foregoing, in the event Landlord does
not provide six hundred (600) amps of power to Premises #1 by July 15, 2000,
Base Rent shall be tolled for Premises #1 until such time as said power is
delivered.
3. Rent.
3.1 Tenant agrees to pay to Landlord in advance on or before the
first day of each month the Base Rent, subject to adjustment as hereinafter
provided, without deduction or set off, for each month of the entire Lease Term,
except as provided in Section 1.13 or elsewhere in this Lease. The following
shall be due and payable by Tenant to Landlord upon execution of this Lease: (i)
the first monthly installment of Base Rent for Premises #1 ($8,686.33), (ii) the
first monthly installment of Base Rent for Premises #2 ($36,815.17), (iii) the
estimated monthly Electric Charge (hereinafter defined) for Premises #1
[$789.67], (iv) the estimated monthly Electric Charge (hereinafter defined) for
Premises #2 [$2,510.13], (v) the security deposit required under Article 64
($325,000.00) and (vi) the additional charge of $13,333.32 payable to Landlord
for the Required Amps (as hereinafter defined). The monthly installments of Base
Rent shall be due and payable without demand on or before the first day of each
calendar month thereafter during the Lease Term. Base Rent for any period of
less than a full month shall be prorated, based on one-thirtieth (1/30) of the
current Base Rent for each day of the partial month this Lease is in effect.
3.2 Intentionally deleted.
3.3 If any installment of the Base Rent, or any other sums owed by
Tenant to Landlord under this Lease, is not received within ten (10) days after
the due date thereof, without implying Landlord's consent to such late payment,
or if Landlord pays a sum on behalf of or for Tenant (which Landlord may do in
Landlord's sole and absolute discretion after said ten [10] day period), Tenant,
to the extent permitted by law, agrees to pay, in addition to said installment
of the Base Rent or such other sum owed, a late payment charge equal to one
percent (1%) of the installment of the Base Rent or such other sums owned. Said
late payment charge shall constitute liquidated damages and shall be for the
purpose of reimbursing Landlord for additional costs and expenses which Landlord
expects to incur in connection with the handling and processing of late
installment payments of the Base Rent and such other sums owed by Tenant to
Landlord hereunder. If there is a late payment by Tenant, the damages resulting
to Landlord will be difficult to ascertain precisely, and the foregoing charge
constitutes a reasonable and good faith estimate by the parties of the extent of
such damages and does not constitute interest. Notwithstanding the foregoing,
such late charges shall not apply to any sums which may have been advanced by
Landlord to or for the benefit of Tenant pursuant to this Lease. If any check
delivered to Landlord by Tenant in payment of Base Rent or Additional Rent is
not honored by the financial institution upon which such check was drawn and is
returned to Landlord for any reason whatsoever, Landlord may impose, as
Additional Rent, a returned check service charge of $50.00 each time a check is
not honored and returned to Landlord. Such returned check service charge shall
be in addition to and not in lieu of any late payment charge. If any two (2)
checks delivered to Landlord by Tenant during a Lease Year in payment of Base
Rent or Additional Rent are not honored by the financial institution upon which
such checks were drawn are
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returned to Landlord for any reason whatsoever, Landlord may require, upon
written notice to Tenant, that any and all subsequent payments of Base Rent or
Additional Rent be made by either cash, money order or cashier's check for the
following twelve (12) months of the Lease Term.
3.4 The Security Deposit shall be held by Landlord as security for
the performance by Tenant of Tenant's covenants and obligations under this
Lease. Such deposit shall not be considered an advance payment of Rent or a
measure of Landlord's damages in a default by Tenant. Upon any event of default
by Tenant (after the expiration of any applicable notice and cure period),
Landlord may (but shall not be obligated to), without prejudice to any other
remedy, use the Security Deposit to the extent necessary to fund any arrearage
of Rent and any other damage, injury, expense or liability caused to Landlord by
such event of default. Following such application of the Security Deposit,
Tenant shall pay to Landlord within five (5) business days of Landlord's written
demand the amount so applied to restore the Security Deposit to its original
amount. If there is not then an event of default, any remaining balance of the
Security Deposit shall be returned by Landlord to Tenant upon termination of
this Lease (or, if applicable, upon the curing of such default), with interest
as provided for hereinafter. If Landlord transfers its interest in the Premises
during the Lease Term, Landlord may assign the Security Deposit to the
transferee and thereafter shall have no further liability for the return of the
Security Deposit, but only if Landlord's transferee acknowledges receipt of
same. Tenant shall receive interest on the Security Deposit, if the Security
Deposit is now or hereafter in the form of cash, less a one percent (1%) annual
administrative fee payable to Landlord.
3.5 All sums other than Base Rent payable by Tenant to Landlord
under this Lease shall constitute "Additional Rent". Base Rent and Additional
Rent are herein referred to collectively as "Rent". All Rent due hereunder shall
bear interest from that date which is ten (10) days after the due date until
paid in full at a rate equal to the prime interest rate in effect from day to
day as reported in the Wall Street Journal, plus two (2) percentage points (the
"Default Rate"). If more than the maximum legal rate of interest should ever be
collected with regard to any sum due hereunder, said excess amount shall be
credited against future payments of Rent accruing thereafter. If no such further
Rent accrues hereunder, said excess sums shall be promptly refunded by Landlord
to Tenant upon demand by Tenant.
3.6 No payment by Tenant or receipt by Landlord of a lesser amount
than the correct Rent shall be deemed to be other than a payment on account, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed an accord and satisfaction. Landlord may accept such
check of payment without prejudice to Landlord's right to recover the balance or
to pursue any other remedy.
3.7 Intentionally deleted.
3.8 If the Base Rent or any Additional Rent shall be or become
uncollectible by virtue of any law, governmental order or regulation, or
direction of any public officer or body, Tenant shall enter into such agreement
or agreements and take such other action (without additional expense to Tenant)
as Landlord may request, as may be legally permissible, to permit Landlord to
collect the maximum Base Rent and Additional Rent from time to time during the
continuance of such legal rent restriction as may be legally permissible, but
not in excess of the amounts of Base Rent or Additional Rent payable under this
Lease. Upon the termination of such legal rent restriction, (a) the Base Rent
and Additional Rent, after such termination, shall become payable under this
Lease in the amount of the Annual Rent and Additional Rent set forth in this
Lease for the period following such termination; and (b) Tenant shall pay to
Landlord, if legally permissible, an amount equal to (i) the Base Rent and
Additional Rent which would have been paid pursuant to this Lease, but for such
rent restriction, less (ii) the Base Rent and Additional Rent paid by Tenant to
Landlord during the period that such rent restriction was in effect.
4. A. Increases in Base Rent. The terms defined below shall for the
purposes of this Lease have the meanings herein specified:
(i) "Additional Rent": All payments payable under this Lease
(however denominated) by the Tenant to the Landlord other than Base Rent
(including, but not limited to, amounts due under Articles 4 and 52 of the
Lease). All Additional Rent shall be deemed to be rent for all purposes
under this Lease, so that the failure to pay any Additional Rent shall
give rise to the same right and remedies reserved to the Landlord under
this Lease, at law or in equity as if such nonpayment were of Base Rent
reserved hereunder.
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(ii) "Taxes": All real estate taxes, sewer rents, water frontage
charges, and assessments, special or otherwise (including but not limited
to any improvement district charges or BID fees), payable to the City of
Newark or any other taxing authority with respect to the Building
containing the Demised Premises (the "Building") and the land thereunder
(the "Land"), and all taxes payable with respect to the rentals payable
hereunder other than general income and gross receipts taxes (except that
general income and gross receipts taxes shall be included if covered by
the provisions of the following sentence). Taxes shall also include any
taxes, charges or assessments payable to any taxing authority in whole or
in part in lieu of the present method of real estate taxation, provided
such substitute taxes, charges and assessments are computed as if the
Building were the sole property of the Landlord subject to said substitute
tax, charge or assessment. With respect to any comparison Tax Year, all
expenses, including reasonable legal fees, experts' and other witnesses'
fees, incurred in contesting the validity or amount of any Taxes or in
obtaining a refund of Taxes or in attempting to prevent an increase in
Taxes, may be considered as part of the Taxes for such Tax Year. Tenant
shall not have the right to bring tax certiorari proceedings or other
proceedings contesting the amount or validity of any Taxes.
Notwithstanding anything to the contrary contained in the Lease, Taxes
shall not include any general corporation, unincorporated business,
succession, gains or transfer tax levied on Landlord, or any occupancy or
commercial rent tax (if any) payable by virtue of all or a portion of the
Building or any taxes or other amounts payable on account of the operation
of any tax incentive or abatement program applicable to the Building, the
benefits of which were not theretofore made afforded to Tenant.
(iii) "Base Tax Year": The calendar year commencing January 1, 2000
and ending December 31, 2000.
(iv) "Base Taxes": The Taxes actually paid with respect to the Base
Tax Year.
(v) "Tax Year": Each twelve-month period commencing January 1st
during the term of this Lease.
(vi) "Tenants Percentage" shall mean 4.47% (.0447).
(vii) - (xii) Intentionally deleted.
(xiii) "Comparison Year" shall mean, with respect to Taxes, any Tax
Year subsequent to the Base Tax Year, for any part or all of which there
is additional rent payable in addition to the Base Rent provided for
hereunder (hereinafter sometimes referred to as the "Rent").
(xiv) The term "Landlord's Statement" shall mean an instrument or
instruments prepared by Landlord comparing Taxes for the Base Tax Year
with Taxes for the Comparison Year in question, and setting forth the
additional rent due from Tenant for such Comparison Year pursuant to the
provisions of this Article 4. Landlord shall provide, upon request, copies
of documentation to Tenant substantiating any amounts charged to Tenant
for xxxxxx wage or operating expenses, Real Estate Taxes, insurance, or
any other Additional Rent categories.
B. (i) If Taxes payable for any Comparison Year shall exceed the Base
Taxes, Tenant shall pay as additional rent for such Comparison Year, an
amount equal to Tenant's Percentage of the amount of such excess. If the
amount of Taxes payable during the Base Tax Year is reduced by final
determination of legal proceedings, settlement or otherwise, the reduced
amount of such Taxes shall thereafter determine the amount of the increase
in the Rent pursuant to this Article 4. The Additional Rent theretofore
paid or payable under this Article 4 shall be recomputed on the basis of
such reduction, and the Tenant shall pay to Landlord as Additional Rental
within twenty (20) days after being billed therefore, any deficiency
between the amount of the increase in the Rent theretofore computed and
the amount thereof due as a result of such recomputation.
(ii) Provided that Tenant is not then in monetary default or
material nonmonetary default of any terms, conditions or covenants of this
Lease, that Tenant is not in stipulation of settlement with Landlord, that
Tenant is not operating under a rental reduction from Landlord and further
provided that Tenant has paid its
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proportionate share of the real estate tax increase for which a refund has
been awarded to Landlord, if Landlord shall receive a refund of Taxes for
any Comparison Year with respect to which Tenant paid Additional Rent by
reason of an increase in Taxes, Landlord shall set forth in the first
Landlord's Statement thereafter submitted to Tenant the amount of such
refund and the amount of the legal fees and other expenses incurred in
connection with the collection of the refund, Tenant shall receive a
credit against the installment or installments of Additional Rent
allocable to Taxes next falling due equal to Tenant's Percentage of the
amount by which the refund exceeds said fees and expenses, but in no event
shall the credit exceed the amount of Additional Rent paid by Tenant in
respect to Taxes for said Comparison Year.
C. Intentionally deleted.
D. (i) At any time during or after any Comparison Year, Landlord may
render to Tenant a Landlord's Statement or Statements showing a comparison
of the Taxes payable for the Comparison Year with the Base Taxes and the
amount payable as additional rent resulting from each of such comparisons.
Landlord's failure to render a Landlord's Statement during or with respect
to any Comparison Year shall not eliminate or reduce Tenant's obligation
to pay Additional Rent pursuant to this Article 4 for such Comparison
Year, nor prejudice Landlord's right to render a Landlord's Statement
during or with respect to any subsequent Comparison Year.
(ii) With respect to a Landlord's Statement showing Additional Rent
due as a result of increased Taxes in a Comparison Year over Base Taxes,
Tenant shall pay to Landlord the full amount of such increase within
twenty (20) days after the rendition of such Landlord's Statement.
E. The expiration or termination of this Lease during any Comparison Year
for any part or all of which there is Additional Rent payable by Tenant under
this Article 4 shall not affect the rights or obligations of the parties hereto
respecting such Additional Rent and any Landlord's Statement relating to such
increase may, on a pro rata basis, be sent to Tenant (and any such reimbursement
due to Tenant hereunder shall be paid by Landlord to Tenant) subsequent to, and
all such rights and obligations shall survive, and be prorated as of, any such
expiration or termination. Any payments due under such Landlord's Statement
shall be payable with twenty (20) days after such statement is sent to Tenant.
F. Landlord acknowledges that it has applied to the City of Newark for a
long-term property tax abatement, pursuant to the provisions of the Urban
Renewal Corporation and Association Law of 1961, as amended (N.J.S.A. 40:50c-40
et. seq.), as more commonly referred to as the "Xxx-Xxxxx" Act (referred to
herein as the "Tax Program"). In the event that the City of Newark approves
Landlord's application for the Tax Program, the Taxes payable by Tenant under
this Article 4 shall be governed under the Tax Program. In the event that the
City of Newark rejects Landlord's application for the Tax Program and Landlord
is denied long-term tax abatement benefits, Tenant shall pay its percentage
share of Taxes in each Tax Year, subsequent to the Base Tax Year, as follows:
(i) In the first (1st) Comparison Year, Tenant shall pay the
lesser of (a) Tenant's Percentage of the excess amount of
Taxes in that Comparison Year over the Base Taxes and (b) $.60
per rentable square foot multiplied by the total rentable
square feet of the Premises;
(ii) In each and every Comparison Year thereafter (but subject to
[iii] hereinafter), Tenant shall pay the lesser of (a)
Tenant's Percentage of the excess amount of Taxes in that
Comparison Year over the Base Taxes and (b) $1.40 per rentable
square foot multiplied by the total rentable square feet of
the Premises; and
(iii) Notwithstanding anything to the contrary in subparagraph (i)
or (ii) above, in no event shall Tenant's payment under this
Article 4F in any Comparison Year (a) exceed $.60 per rentable
square foot from that amount paid by Tenant in the previous
Comparison Year and (b) exceed $1.40 per rentable square foot
multiplied by the total rentable square feet of the Premises.
G. In no event shall the Base Rent payable under this Lease be reduced.
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H. Within ninety (90) days of its receipt of the Landlord's Statement,
Tenant at its sole cost and expense shall have the right to review in Landlord's
offices and during normal business hours the items in support of the
calculations within the Landlord's Statement. If within such ninety (90) day
period, Tenant does not give written notice stating in detail reasonable
objections to such calculations, Tenant shall be deemed to have given approval
of such calculations. Failure to pay such additional rent, whether or not under
protest, shall constitute an Event of Default under Article 18 of this Lease.
I. Any Landlord Statement or Operating Statement given by Landlord
pursuant to this Article 4 shall be binding upon Tenant unless, within ninety
(90) days after its receipt of such notice, Tenant notifies Landlord of its
disagreement therewith, specifying the portion thereof with which Tenant
disagrees. Pending resolution of such dispute, Tenant shall, without prejudice
to its rights, pay all amounts determined by Landlord to be due, subject to
prompt refund by Landlord (without interest) upon any contrary determination.
5. Landlord's Obligations.
5.1 Subject to the limitations hereinafter set forth, Landlord shall
furnish Tenant while occupying the Premises facilities to provide (a) water at
those points of supply provided for general use of tenants of the Building: (b)
heat and air conditioning in season from 8:00 a.m. to 6:00 p.m. Monday through
Friday and from 9:00 a.m. to 1:00 p.m. on Saturdays, except for holidays
("Regular Business Hours"), at temperatures and amounts reasonably considered by
Landlord to be standard, such service at night and on Saturday afternoons,
Sundays and holidays to be furnished only at the written request of Tenant, who
shall pay upon demand Landlord's customary charges for such services; and (c)
elevators for ingress and egress to the floor on which the Premises are located,
in common with other tenants, provided that Landlord may limit the number of
elevators to be in operation at times other than during customary business hours
for the Building and on holidays. Landlord also agrees to maintain the public
and common areas (the "Common Facilities") of the Building, such as lobbies,
stairs, corridors and rest rooms, in reasonably good order and condition, except
for damage caused by Tenant, or its employees, agents or invitees and Landlord
shall make all required repairs to the structural elements of the Premises and
the Building systems servicing the Premises, unless the necessity for same is
due to the acts, negligence or omissions of the Tenant, its agents, employees or
invitees. Tenant shall take good care of and keep the premises clean, however,
Landlord shall provide basic janitorial services only to Premises #2 (as shown
on the plan attached hereto as Exhibit "A") in accordance with standard Building
practice and Exhibit "G" annexed hereto. If Tenant desires services specified in
this Section at any time other than times herein designated, such service shall
be supplied to Tenant only at the request of Tenant delivered to Landlord before
3:00 p.m. on the date which is two (2) business days preceding such extra usage.
Tenant shall pay to Landlord as Additional Rent the cost of such service upon
receipt of a xxxx thereafter. Landlord shall also have a security guard and/or
attendant in the Building at all times. Tenant shall have twenty four (24) hour
access to the Demised Premises every day of the year, including holidays. HVAC
shall be provided to maintain year round comfort based on the ASHRAE Comfort
Chart. This is based on (i) cooling one and one-half (1 .5) xxxxx per square
foot lighting and two and one-half (2.5) xxxxx per square foot power, (ii) one
person for one hundred (100) square feet and (iii) the use of Building standard
internal shading devices by the Tenant. Ventilation air (fresh air) shall be
provided at the rate of .2 CFM per square foot. Heating shall be provided
through perimeter cast iron radiators during Regular Business Hours. Zoning
shall be provided utilizing self contained thermostatic control valves, with one
control per 1,080 rentable square feet for perimeter zones and one control per
1,800 rentable square feet for interior zones. Provided Tenant is not in default
under the Lease, beyond the expiration of any applicable notice and cure period
(subject to any other terms and provisions of the Lease), Landlord covenants and
agrees with Tenant that Tenant shall and may peacefully and quietly have, hold
and enjoy the Premises hereby demised for the intended purpose as hereinbefore
described.
5.2 Subject to Landlord's rights under this Lease and the rules and
regulations set forth in Exhibit C, Tenant, and its licensees, concessionaires,
employees and customers (for purposes of this Article, collectively "Tenant")
shall have the non-exclusive right to use the "Common Areas" (which shall be
defined as the public and common areas designated for common use, as constituted
from time to time), in common with Landlord, other tenants of the Project and
other persons entitled to use the same. Tenant shall not interfere with the
rights of other persons to use the Common Areas. Landlord may temporarily close
parts of the Common Areas for such periods of time as
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may be necessary for (i) temporary use as a work area in connection with the
construction of improvements within the Building or contiguous property, (ii)
repairs or alterations in or to the Common Areas or to any utility type
facilities, (iii) preventing the public from obtaining prescriptive rights in or
to the Common Areas, (iv) security reasons, or (v) doing and performing such
other acts as in the use of good business judgment Landlord shall determine to
be appropriate for the Building; provided, however, that Landlord shall use
reasonable efforts not to unduly interfere with or disrupt Tenant s business.
Landlord shall have the right at any time to change the arrangement and/or
locations of entrances, sidewalks, landscaped areas (if any), passageways or
other parts of the Common Areas and to change the name, number or designation by
which the Building is commonly known. Landlord agrees that while exercising such
right of entry or making such repairs, replacements or improvements, Landlord
shall perform its work diligently and shall use best efforts to avoid materially
interfering with Tenant's business or disrupting same, but in no event shall
Landlord be required to incur overtime charges for same.
5.3 Subject to the provisions of Article 5.9 hereinafter, Landlord
shall not be liable or responsible to Tenant for loss, damages or expense Tenant
sustains or incurs if either the quantity or character of any utility service is
changed or is no longer available or is no longer suitable for Tenant's
requirements however, Landlord shall use reasonable diligence to repair any
damage if the responsibility thereafter is that of Landlord under this Lease.
Subject to the provisions of Article 5.9 hereinafter, if Landlord fails to use
the aforesaid reasonable diligence and a material interruption in service
continues for twenty (20) business days after written notice from Tenant to
Landlord detailing the interruption in service, then Base Rent and Additional
Rent shall be abated thereafter until such material interruption in service is
cured by Landlord. Tenant covenants and agrees that its use of electric current
shall never exceed the capacity of existing feeders to the Building or the
risers or wiring installations.
5.4 Subject to the provisions of Article 5.9 hereinafter, failure to
any extent to make available, or any slow-down, stoppage or interruption of,
these defined services resulting from any cause (including, but not limited to,
Landlord s compliance with (a) any voluntary or similar governmental or business
guideline now or hereafter published or (b) any requirements now or hereafter
established by any governmental agency, board or bureau having jurisdiction over
the operation and maintenance of the Building) shall not render Landlord liable
for damages to person, property, or business, nor be construed as an eviction of
Tenant or work an abatement of Rent, nor relieve Tenant from fulfillment of any
covenant or agreement hereof. If any equipment or machinery furnished by
Landlord break down or for any cause cease to function properly, Landlord shall
use reasonable diligence to repair same promptly, but Tenant shall have no claim
for abatement of Rent or damages for any interruptions in service occasioned
thereby or resulting therefrom. Subject to the provisions of Article 5.9
hereinafter, if Landlord fails to use the aforesaid reasonable diligence and a
material interruption in service continues for twenty (20) business days after
written notice from Tenant to Landlord detailing the interruption in service,
then Base Rent and Additional Rent shall be abated thereafter until such
material interruption in service is cured by Landlord.
5.5 Except as otherwise provided in this Lease, Tenant's obligations
to pay Additional Rent pursuant to this Article 5 shall continue to the actual
date of expiration or termination of this Lease. If Landlord terminates this
Lease pursuant to Article 19 without waiving Landlord's right to seek damages
against Tenant, Tenant's obligation to pay any and all Additional Rent pursuant
to this Article 5 shall not terminate as a result thereof.
5.6 Landlord may at any time remodel or alter the Building or the
Project, or change the location of any entrance thereto, or any other portion
thereof not occupied by Tenant, and the same shall not constitute a
constructive, actual, total or partial eviction.
5.7 If an excavation shall be made upon land adjacent to the
Premises, or shall be authorized to be made, Tenant shall afford to the person
causing or authorized to cause such excavation license to enter the Premises for
the purpose of doing such work as said person shall deem necessary to preserve
the wall or the Building from injury or damage and to support the same by proper
foundation without any claim for damages or indemnity against Landlord, or
diminution or abatement of rent. Landlord shall use reasonable efforts to insure
that said repair or alteration does not unreasonably interfere with Tenant's use
of the Premises but in no event shall Landlord be required to incur any costs
for same.
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5.8 Landlord shall replace, at the sole cost and expense of Tenant,
any glass damaged or broken from any cause whatsoever in and about the Premises,
except if caused by the negligence or willful acts of Landlord. Bills therefor
shall be due from and payable by Tenant within ten (10) days of delivery, and
the amount thereof shall be deemed to be, and paid as, Additional Rent.
5.9 Notwithstanding anything to the contrary contained in this
Article, if (i) there shall be an interruption or suspension of any of the
Building's services, causing an interruption of the conduct of Tenant's business
in the Demised Premises, as a result of the performance by Landlord of its
repair obligations under this Lease (an "Interruption"), (ii) such Interruption
shall continue for at least twenty (20) consecutive business days following
receipt by Landlord of written notice from Tenant describing such Interruption,
(iii) such Interruption shall materially impair the operation of Tenant's
business in the Demised Premises, render the Demised Premises inaccessible or
untenantable and, in each event, cause Tenant not to use the Demised Premises
for the conduct of Tenants business, (iv) such Interruption shall not have been
caused, by reason of the failure on the part of any public utility company
servicing the Building to provide such applicable service and (v) such
Interruption shall not have been caused, in whole or in part, by reason of (a)
an event which is covered under any article of the Lease relating to casualty or
condemnation, (b) an act or omission on the part of Tenant in default or
violation of this Lease or Tenant's obligations hereunder or (c) the negligence
of Tenant or Tenant's agents, servants, employees, contractors or visitors (with
respect to visitors, when in the Demised Premises) (an Interruption that
satisfies all of the foregoing conditions, a "Material Interruption"), then, as
Tenant's sole remedy in connection with such Material Interruption, Tenant shall
be entitled to a fair diminution of Base Rent for the period which shall begin
on the twenty-first (21st) consecutive business day of such Material
Interruption and which shall end on the earlier of (x) the day following the day
on which such Material Interruption shall cease or (y) Tenant shall recommence
the use of the Demised Premises for the conduct of Tenants business.
6. Intentionally deleted.
7. Permitted Use. Tenant shall use the Premises only for the Permitted
Use. Tenant will not occupy or use the Premises, or permit any portion of the
Premises to be occupied or used, for any business or purpose other than the
Permitted Use or for any use or purpose which is unlawful in part or in whole or
deemed to be disreputable in any manner or extra hazardous on account of fire,
nor shall Tenant use, store, or discharge any "Hazardous Material" as defined in
Section 45 hereof, nor permit anything to be done which will in any way increase
the rate of insurance on the Building or contents; and if, by act of Tenant,
there is any increase in the rate of insurance on the Building or contents
created by Tenant's acts or conduct, then such acts of Tenant shall be an event
of default hereunder and Tenant shall pay to Landlord the amount of such
increase within ten (10) business days of Landlord's written demand.
Notwithstanding anything to the contrary contained in this Lease, Landlord
represents that (provided Tenant complies with the terms and conditions of this
Lease) insurance cost of the Building shall not increase as a result of Tenant's
contemplated uses, as set forth in the Lease, and as such, Landlord shall not
pass on any increased insurance costs of the Building onto Tenant. Acceptance of
such payment shall not constitute a waiver of any of Landlord's other rights
provided herein. Tenant will conduct its business and control its agents,
employees and invitees to not create any nuisance, nor interfere with, annoy or
disturb other tenants or Landlord in the management of the Building. Tenant will
maintain the Premises in a clean, healthful and safe condition and will comply
with all orders, rules and regulations of the New Jersey Board of Fire
Underwriters (or equivalent agency or authority) and the Insurance Services
Office and all laws, ordinances, orders, rules and regulations (state, federal,
municipal and other agencies of bodies having jurisdiction thereof) with
reference to the use, condition or occupancy of the Premises as well as the
provisions of all recorded documents affecting the Building. Except as may be
provided for otherwise in this Lease, Tenant will not, without the prior consent
of Landlord, paint, install lighting or install any signs, window or door
lettering or advertising media of any type on or about the Premises. Tenant
shall not place a load upon any floor of the Premises exceeding the floor load
per square foot which such floor was designated to carry or which is allowed by
law. Landlord hereby reserves the right to reasonably prescribe the weight and
position of all safes or other unusually heavy equipment which must be placed so
as to distribute the weight. Business machines and mechanical equipment shall be
placed and maintained by Tenant, at Tenant's sole cost and expense, in settings
sufficient in Landlord's reasonable judgement to absorb and prevent transmission
of vibration, noise and annoyance. Tenant shall not install or use in the
Premises any electrical machinery or appliances which in Landlord's sole
judgement may overload the electrical wiring or equipment capacity in the
Premises or the Building. Tenant agrees that the value of
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the Demised Premises and the reputation of the Owner will be seriously injured
if the premises are used for any obscene or pornographic purposes or any sort of
commercial sex establishment. Tenant agrees that Tenant will not bring or permit
any obscene or pornographic material on the premises, and shall not permit or
conduct any obscene, nude, or semi-nude live performances on the premises, nor
permit use of the premises for nude modeling, rap sessions, or as a so-called
rubber goods shops, or as a sex club of any sort, or as a "massage parlor".
Tenant agrees further that Tenant will not permit any of these uses by any
sublessee or assignee of the premises. This Article shall directly bind any
successors in interest to the Tenant. Tenant agrees that if at any time Tenant
violates any of the provisions of this Article, such violation shall be deemed a
breach of a substantial obligation of the terms of this Lease and objectionable
conduct. Pornographic material is defined for the purposes of this Article as
any written or pictorial matter with the prurient appeal or any objects or
instrument that are primarily concerned with lewd or prurient sexual activity.
It is further understood that the Premises may not be used for
residential purposes and that sleeping overnight in the Premises, cooking
(except by way of a microwave or toaster oven) or other such housekeeping
functions are not permitted. The Tenant expressly agrees that they will not use
machinery causing excessive noise or vibration in the Building and will take all
necessary steps to comply with all municipal rules, orders, ordinances and
regulations with respect to the maintenance of combustible material in and upon
the Premises. Tenant shall be permitted to have a refrigerator in the Premises.
Tenant agrees that if at any time Tenant violates any of the
provisions of this Article, such violation shall be deemed a breach of a
substantial obligation of the terms of this Lease and objectionable conduct. A
violation of any of the terms of this provision shall give to the Landlord the
right to restrain the same by injunctive relief and/or exercise any of
Landlord's remedies provided for in the Lease.
8. Tenant's Repairs and Alterations (also see Article 54).
8.1 Tenant will not deface or injure the Building, and will pay the
cost of repairing any damage or injury done to the Building or any part thereof
by Tenant or Tenant's agents, employees or invitees. Tenant shall take good care
of the Premises and keep them free from waste and nuisance of any kind. Tenant
shall keep the Premises, including all fixtures installed by Tenant, in good
condition, and to make all necessary non-structural repairs except those caused
by fire, casualty or acts of God covered by Landlord's insurance policy covering
the Building, (if any). The performance by Tenant of its obligations to maintain
and make repairs shall be conducted only by contractors and subcontractors
consented to by Landlord, and Tenant shall procure and maintain and shall cause
such contractors and subcontractors engaged by or on behalf of Tenant to procure
and maintain insurance coverage against such risks, in such amounts and with
such companies as Landlord requires in connection with such maintenance and
repair. Tenant shall prohibit any contractor it engages or subcontractor or
material suppliers engaged through such contractor from filing any notice or
notices of commencement of public record as a part of or in connection with work
on the Premises. Tenant hereby further covenants and agrees to provide Landlord
with copies of any notices Tenant receives in connection with such work. All
repairs required under the Lease to be performed by Landlord shall be performed
with reasonable diligence and in a manner which shall minimize interference with
the conduct of Tenant's business (but in no event shall Landlord perform same on
an overtime business). Without limiting the generality of the foregoing,
Landlord shall make all repairs and improvements necessary to keep in working
order and condition the Building (including all public and common areas) and all
Building facilities. Landlord shall make structural repairs to the Premises and
also keep in working order and condition the electrical, heating, elevator,
plumbing and other system lines leading to, but not within, the Demised
Premises; provided, however that Landlord shall not be required to make any
repairs which are Tenant's responsibility hereunder or to repair Tenant's trade
fixtures, or any decorations, alterations, additions or improvements installed
by Tenant, or to make any repairs necessitated by the negligence, acts or
omissions of Tenant, its agents, employees or invitees.
8.2 If Tenant fails to make the repairs described above within ten
(10) days after Landlord's written demand of Tenant to repair any damage or
injury to the Premises or the Building for which Tenant is responsible (or a
shorter time period in the event of any emergency), Landlord may at its option
make such repair (however, in the case of an emergency, Landlord shall not have
to provide Tenant with notice prior to Landlord making such repair), and Tenant
shall, within fifteen (15) business days of Landlord's written demand therefor,
pay Landlord for the cost thereof. At the end or other termination of this
Lease, Tenant shall deliver the Premises with all improvements located
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thereon (except as otherwise herein provided) in reasonable repair and
condition, reasonable wear, tear and casualty excepted; and shall deliver to
Landlord all keys to the Premises.
8.3 Tenant will not make or allow to be made any alterations or
physical additions in or to the Premises without the prior written consent of
Landlord which shall not be unreasonably withheld or delayed. All alterations,
additions or improvements (whether temporary or permanent in character) made in
or upon the Premises by Landlord or Tenant shall be Landlord's property on
termination or expiration of this Lease and shall remain on the Premises without
compensation to Tenant, provided that Landlord, at its option, may by notice to
Tenant, require Tenant to remove any such alterations, additions or improvements
at Tenant's cost and restore the Premises to the condition of the Premises at
the Commencement Date, normal wear and tear excepted. All furniture, movable
trade fixtures and equipment installed by Tenant may be removed by Tenant at the
termination of this Lease if Tenant elects and shall be removed if required by
Landlord, or if not removed shall, at the option of Landlord, become the
property of Landlord. All such installations, removals and restoration shall be
accomplished in a good workmanlike manner so as not to damage the Premises or
the structure of the Building or the plumbing, electrical or other utilities.
Tenant shall give Landlord prior written notice of any proposed alterations,
installations, additions or improvements (hereinafter collectively called
"Alterations") with copies of proposed plans and as-built plans upon completion
of the Alterations. Landlord shall, by written notice to Tenant within ten (10)
business days following Landlord's receipt of the proposed Alterations, notify
Tenant whether Tenant shall be required to remove such Alterations prior to the
Expiration Date and restore the Demised Premises to its condition prior to the
installation of such Alterations. All such Alterations shall be done at Tenant's
sole expense and the making thereof shall not interfere with the use of the
Building by other tenants. Notwithstanding the foregoing or any other Article in
this Lease, Landlord shall not forego its aforementioned right to require Tenant
to remove and restore the Premises as it applies to (i) to the Reinforcement (as
defined in Article 54J), (ii) Premises #1, (iii) the Generator (as defined in
Article 62), (iv) the Antennae (as defined in Article 63) and (v) the Cabling
(as defined in Exhibit "D").
8.4 Tenant may contract separately with providers of
telecommunications or cellular products, systems or services for the Premises.
Even though such products, systems or services may be installed or provided by
such providers in the Building, in consideration for Landlord's permitting such
providers to provide such services to Tenant, Tenant agrees that Landlord and
the Landlord Indemnities (defined below) shall in no event be liable to Tenant,
its employees, agents, principals and affiliates for any damages of any nature
whatsoever arising out of or relating to the products, systems or services
provided by such providers (or any failure, interruption, defect in or loss of
the same) or any acts or omissions of such providers in connection with the same
or any interference in Tenant's business caused thereby. Tenant waives and
releases all rights and remedies against Landlord and the Landlord Indemnities
that are inconsistent with the foregoing. "Landlord Indemnities" shall be deemed
to include, but not be limited to, the Landlord's employees, agents, affiliates,
subsidiaries, parent, members, partners, principals and/or shareholders.
8.5 There shall be no allowance to Tenant for a diminution of rental
value of the Premises and no liability on the part of Landlord for
inconvenience, annoyance or injury to business arising from Landlord, Tenant or
others making any repairs, alterations, additions, or improvements in or to any
portion of the Project or the Premises, or in or to any fixtures or personal
property attached thereto or located therein. If any equipment or machinery
furnished by Landlord break down or for any cause cease to function properly,
Landlord shall use reasonable diligence to repair same promptly, but Tenant
shall have no claim for abatement of Fixed Rent or Additional Rent or damages
for any interruptions in service occasioned thereby or resulting therefrom.
Notwithstanding anything to the contrary contained in the foregoing, but subject
to the terms and provisions of Article 5.9, if Landlord fails to use the
aforesaid reasonable diligence and a material interruption in service continues
for twenty (20) business days after written notice from Tenant to Landlord
detailing the interruption in service, then Base Rent and Additional Rent shall
be abated thereafter until such material interruption in service is cured by
Landlord.
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8.6 Tenant, at its sole cost and expense, shall maintain and repair
any supplemental ventilating, heating and air conditioning systems (if any) in
the Demised Premises. Furthermore, Tenant shall procure, in a prompt and
diligent manner after the execution of this Lease, at its sole cost and expense,
a service contract for said units, and supply a copy of same to Landlord and its
managing agent. In addition, Tenant acknowledges and agrees that said unit(s) is
the property of Landlord, and shall remain at the Demised Premises upon the
termination of this Lease.
9. Subletting and Assigning.
9.1 A. If Tenant shall desire to assign this Lease or to sublet the
Demised Premises in whole or in part, Tenant shall submit to Landlord a written
request for Landlord's consent to such assignment or subletting, which request
shall contain or be accompanied by the following information: (i) the name and
address of the proposed assignee or subtenant; (ii) a description identifying
the space to be assigned or sublet; (iii) the terms and conditions (financial
and otherwise) of the proposed assignment or subletting; (iv) the nature and
character of the business of the proposed assignee or subtenant and of its
proposed use of the Demised Premises; and (v) current financial information and
any other information as Landlord may reasonably request with respect to the
proposed assignee or subtenant and the proposed assignment or subletting.
Landlord shall have the option, to be exercised by notice given to Tenant within
thirty (30) days after the later of (a) receipt of Tenant's request for consent
or (b) receipt of such further information as Landlord may reasonably request
pursuant to clause (v) above to require a surrender of the Demised Premises or
the portion thereto involved as of a date to be specified in said notice (the
"Termination Date") which shall not be earlier than one day before the effective
date of the proposed assignment or subletting or later than sixty-one (61) days
after said effective date, in which event Tenant shall vacate and surrender the
Demised Premises or the portion thereto involved on or before the Termination
Date and the term of this Lease shall end on the Termination Date as if that
were the Expiration Date. Notwithstanding anything to the contrary contained in
the foregoing, if Tenant wishes to assign or sublet, Tenant shall notify
Landlord of its intention to do so (prior to identifying an assignee or
subtenant), with the proposed effective date thereof (and in the case of a
partial sublet, identifying the space to be sublet). This notice shall be deemed
to trigger Landlord's recapture right. If Landlord does not elect to recapture
within thirty (30) days after Tenant's notice, then Tenant shall have six (6)
months to enter into an agreement with a proposed assignee or subtenant, subject
to the terms and provisions of this Article, and submit same to Landlord for
approval, which approval shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, if Landlord does elect to recapture hereunder
within said thirty (30) day period, Tenant may within five (5) business days of
Landlord's election rescind its request, and accordingly, this Lease shall
continue in full force and effect.
B. If Landlord shall not exercise its option under Section A above,
Landlord shall not unreasonably withhold or delay its consent to the proposed
subletting or assignment referred to in Tenants Proposal given pursuant to
Sections A above, but only on the terms set forth therein, provided that the
following further conditions shall be fulfilled:
(1) The Demised Premises shall not, without Landlord's prior
consent, have been otherwise publicly advertised for assignment or
subletting at a rental rate lower than the prevailing rental rate for
comparable space in the Building, and Tenant shall not enter into any
sublease at a rental rate lower than the rental rate prevailing in the
Building at the time of the proposed subletting;
(2) No space shall be sublet nor this Lease assigned to
another tenant, or to a related corporation of any other tenant or to any
other occupant of the Building, if Landlord shall then have available for
rent similar space in the Building;
(3) No subletting or assignment shall be to a person or entity
which has, in Landlords reasonable opinion, a financial standing, is of a
character, is engaged in a business, or proposes to use the Premises in a
manner not in keeping with the standards of the Building;
(4) Any subletting shall be expressly subject to all of the
obligations of Tenant under this Lease and, without limiting the
generality of the foregoing, the sublease shall impose at least the same
restrictions and conditions with respect to use as are contained in
Article 7 and shall specifically provide that there shall be no further
subletting of the sublet premises or assignment or mortgaging of the
sublease;
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(5) That part, if any, of the term of any such sublease or any
renewal or extension thereof which shall extend beyond a date one day
prior to the expiration or earlier termination of the term shall be a
nullity;
(6) The proposed subtenant or assignee shall not be a person
then negotiating with Landlord for the rental of any comparable space in
the Building; to assist Tenant in complying with this clause, at Tenant's
request Landlord shall accurately respond within five (5) business days to
any inquiry from Tenant as to whether a prospective subtenant is then
negotiating with Landlord;
(7) Landlord shall be furnished with a duplicate original of
the sublease or assignment documents together with the request for
Landlord's consent;
(8) In the case of a subletting, Tenant shall pay to Landlord
an amount equal to one-half (1/2) of any Fixed Rent and Additional Rent or
other consideration paid to Tenant by any subtenant which is in excess of
(i) the Base Rent and Additional Rent then being paid by Tenant to
Landlord pursuant to the terms hereof on a per square foot pro rata basis,
and (ii) brokerage fees, advertising and legal fees, fix-up costs and free
rent concessions, if any, incurred in connection with the subletting. All
sums payable hereunder by Tenant shall be paid to Landlord as Additional
Rent immediately upon receipt thereof by Tenant. If only a part of the
Demised Premises is sublet then the rent paid therefor by Tenant to
Landlord shall be deemed to be that fraction thereof that the area of said
sublet space or assigned lease bears to the entire Demised Premises;
(9) There shall be no material default by Tenant under any of
other terms, covenants and conditions of this Lease, after notice and
applicable grace periods, at the time that Landlord's consent to any such
subletting or assignment is requested and on the date of the commencement
of the term of any such proposed sublease or effective date of the
proposed assignment; and
(10) The sublease shall provide by its terms that it may not
be further modified in any material manner (including, without limitation,
modification of the financial obligations, identity or character of the
subtenant), without Landlord's consent, it being expressly agreed that any
such modification shall, for the purposes of this Lease, be deemed and
construed as a subletting for which Tenant must comply with this Article 9
as if such sublease had not been theretofore consented to by Landlord.
(11) The sublease shall provide that the subtenant shall, at
Landlord's option, attorn to upon any termination of this Lease.
(12) Intentionally Deleted.
C. No assignment of this Lease shall be binding upon Landlord
unless, in addition to compliance with the prior provisions of this Article 9,
the assignee shall execute, acknowledge and deliver to Landlord (a) a duplicate
original instrument of assignment in form and substance reasonably satisfactory
to Landlord, duly executed by Tenant, and (b) an agreement, in form and
substance reasonably satisfactory to Landlord, duly executed by the assignee,
whereby the assignee shall unconditionally assume observance and performance of,
and agree to be bound by all of the terms, covenants and conditions of this
Lease on Tenant's part to be observed or performed, including, without
limitation, the provisions of this Article 9 with respect to all future
assignments and subletting; but the failure or refusal of the assignee to
execute or deliver such an agreement shall not release the assignee from its
liability for the obligations of Tenant hereunder assumed by acceptance of the
assignment of this Lease.
D. If this Lease be assigned, whether or not in violation of the
terms of this Lease, Landlord may collect rent from the assignee. If the Demised
Premises or any part thereof be sublet or be used or occupied by anybody other
than Tenant, whether or not in violation of this Lease, Landlord may, after
default by Tenant, required notice and expiration of Tenant's time to cure such
default, if any, collect rent from the subtenant or occupant. In either event,
Landlord may apply the net amount collected to the rent herein reserved, but no
such assignment, subletting, occupancy or collection shall be deemed a waiver of
any provisions of this Article 9, or the acceptance of the assignee, subtenant
or occupant as a tenant, or a release of Tenant from the further performance by
Tenant of Tenant's obligations under this Lease, including the obligation to pay
all Base Rent and Additional Rent. The consent by
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Landlord to an assignment, transfer, encumbering or subletting pursuant to any
provision of this Lease shall not in any way be considered to relieve Tenant
from obtaining the express prior consent of Landlord to any other or further
assignment, transfer, encumbering or subletting. References in this Lease to use
or occupancy by anyone other than Tenant shall not be construed as limited to
and those claiming under or through but as including also licensees and others
claiming under Tenant, immediately or remotely. The listing of any name other
than that of Tenant on any door of the Demised Premises or on any directory or
in any elevator in the Building, or otherwise, shall not operate to vest in the
person so named any right or interest in this Lease or the Demised Premises, or
be deemed to constitute, or serve as a substitute for, any consent of Landlord
required under this Article 9, and it is understood that any such listing shall
constitute a privilege extended by Landlord, revocable at Landlord's will by
notice to Tenant. Tenant agrees to pay to Landlord all reasonable out-of-pocket
cost that may be incurred by Landlord in connection with any proposed assignment
of this Lease or any proposed subletting of the Demised Premises or any part
thereof including the costs of making investigations as to the acceptability of
a proposed subtenant or assignee and reasonable attorneys' fees. Neither any
assignment of this Lease nor any subletting, occupancy or use of the Demised
Premises or any part thereof by any person other than Tenant, nor any collection
of rent by Landlord from any person other than Tenant, nor any application of
any such rent as provided in this Article shall, under any circumstances except
as set forth in Section B of this Article, relieve, impair, release or discharge
Tenant of its obligations fully to perform the terms of this Lease on Tenant's
part to be performed.
9.2 Notwithstanding the foregoing, without Landlord's consent, but
upon ten (10) days' written notice to Landlord, this Lease may be assigned, or
the Premises may be sublet, to any corporation which is a parent, subsidiary or
affiliate of Tenant, or an entity which is controlled by, controls, or is under
common control with Tenant. For the purposes of this Section 9, "control" shall
mean having fifty-one percent (51%) or more of the voting interests.
9.3 For the purposes of this Lease, an "assignment" prohibited by
this Section 9 shall be deemed to include the following: if Tenant is a
partnership, a withdrawal or change (voluntary, involuntary, by operation of
law) of any one or more of the partners thereof, if such withdrawal represents
fifty percent (50%) or more of the partners in the partnership as then
constituted, or the dissolution of the partnership; or, if Tenant consists of
more that one person, a purported assignment, transfer, mortgage of encumbrance
(voluntary, involuntary, by operation of law or otherwise) from one thereof to
the other or other thereof, or to any third party; or, if Tenant is a
corporation, any dissolution, merger, consolidation or other reorganization of
Tenant, or any change in the ownership (voluntary, involuntary, by operation of
law, creation of new stock or otherwise) of fifty percent (50%) or more of its
capital stock from the ownership existing on the date of execution hereof, or,
the sale of fifty percent (50%) of the value of the assets of Tenant.
Notwithstanding anything to the contrary contained in this Lease, Tenant may
assign this Lease or sublet a portion of the Demised Premises without Landlord's
consent (but on not less than ten [10] day's prior notice to Landlord and
provided written documentation evidencing same is provided to Landlord) to an
affiliate, subsidiary or parent of Tenant, a company into or with which Tenant
is merged or consolidated or to a company which purchases all or substantially
all of Tenant's assets. For purposes hereof: (i) an affiliate of Tenant shall
mean any entity which controls, is directly controlled by or is under common
control with Tenant ("Control" being interpreted as the ownership of fifty-one
percent (51%) or more of the interests in such entity and possession of the
power to direct the management and policies of such entity and the distribution
of its profits); (ii) a subsidiary of Tenant shall mean an entity which is
controlled by Tenant; (iii) a parent of Tenant shall mean an entity which has
ownership of fifty-one percent (51%) or more of the interests of Tenant and
possession of the power to direct the management and policies of Tenant and the
distributions of Tenant's profits; (iv) an entity in which or with which Tenant
is merged or consolidated shall mean an entity subject to the jurisdiction of
the courts of the State of New Jersey which succeeds Tenant in accordance with
applicable statutory provisions for merger or consolidation of entities and
which, by operation of law or by effective provisions contained in the
instruments or merger or consolidation fully assumes the liabilities of the
entities participating in such merger or consolidation and which has, on the
completion of such merger or consolidation, a net worth equal to or greater than
Tenant's net worth immediately prior to such merger or consolidation; and (v) an
entity which purchases all or substantially all of Tenant's assets shall mean an
entity which: (A) is unrelated to Tenant or any affiliate, subsidiary or parent
of Tenant; (B) is subject to the jurisdiction of the courts of the State of New
Jersey; (C) fully assumes the liabilities and the obligations of Tenant under
this Lease; (D) purchases such assets pursuant to a bona fide, arm's length sale
that is not consummated for the purpose of circumventing the restrictions set
forth in this Article; and (E) has, on the completion of such sale, a net worth
equal to or greater than Tenant's net worth immediately prior to such sale.
Furthermore, Landlord agrees that (i) Article 9B(8) or 9.4.1 shall not be
applicable to any permitted subletting/assignment and (ii) Landlord shall not be
allowed to avail itself of any recapture rights pursuant
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to any assignment allowable under this Article 9.3. In connection with this
Article, Landlord shall have the right, at any reasonable time and from time to
time, to examine such books and records of Tenant as may be necessary to
establish that such entity, subtenant, occupant or assignee remains a
related/affiliated entity of Tenant and that no rent is being paid to Tenant by
such related entity. Such subletting, occupancy or assignment shall not be
deemed to vest in any such related entity any right or interest in this Lease or
the Demised Premises, nor shall it relieve, release, impair or discharge any of
Tenant's obligations hereunder. In addition, notwithstanding the foregoing, a
transfer of control of the Tenant to any corporation whose securities are traded
on a public securities exchange or the redemption or issuance of additional
stock of any class shall not be deemed to be an assignment of this Lease,
however, written notice must be given to Landlord on or prior to the date
thereof.
9.4 If Landlord gives its consent to any assignment of this Lease,
or if Tenant is otherwise permitted to make any assignment pursuant to this
Lease (except as provided in Section 9.3 above), Tenant shall in consideration
therefore, pay to Landlord, as Additional Rent:
9.4.1 For an assignment, an amount equal to one-half (1/2) of all
sums and consideration paid to Tenant by the assignee for or by reason of such
assignment (including any sums paid for the sale, rental, or use of Tenant's
Property in excess of the then fair market value of Tenant's Property but
excluding any sums paid for the sale, rental, or use Tenant's telecommunications
equipment) less the reasonable brokerage commissions and legal and accounting
fees, fix-up costs and free rent concessions, if any, actually paid by Tenant in
connection with such assignment; and
The sums payable under this Subsection 9.4 shall be paid to Landlord as
and when payable by the assignee or subtenant to Tenant.
9.5 In no event shall Tenant be entitled to make, nor shall Tenant
make, any claim, and Tenant hereby waives any claim, for money damages (nor
shall Tenant claim any money damages by way of set-off, counter claim or
defense) based upon any claim or assertion by Tenant that Landlord has
unreasonably withheld or unreasonably delayed its consent or approval to a
proposed assignment or subletting as provided for in this Article, unless
Landlord's failure to consent or approve same is due to Landlord's bad faith or
willful misconduct. Tenant's sole remedy shall be an action or proceeding to
enforce any such provision, or for specific performance, injunction or
declaratory judgment.
9.6 (I) Every subletting hereunder is subject to the express
condition, and by accepting a sublease hereunder each
subtenant shall be conclusively deemed to have agreed,
that if this Lease should be terminated prior to the
Expiration Date or if Landlord should succeed to
Tenants estate in the Demised Premises, then at
Landlord's election such subtenant shall either
surrender the Demised Premises to Landlord within
thirty (30) of Landlord's request therefore, or shall
attorn to and recognize Landlord as such subtenant's
Landlord under such sublease, and such subtenant shall
promptly execute and deliver any instrument Landlord
may reasonably request to evidence such attornment.
(II) In the event that Tenant fails to execute and deliver
any assignment or sublease to which Landlord consented
under the provisions of this Article within forty-five
(45) days after the giving of such consent, then Tenant
shall again comply with all of the provisions of this
Article before assigning its interest in this Lease or
subletting the Demised Premises.
10. Indemnity. Landlord shall not be liable for and Tenant will indemnify
and save harmless Landlord of and from all fines, suits, demands, losses and
actions (including attorneys' fees) for any injury to person or damage to or
loss of property on or about the Premises caused in whole or in part by the
negligence or misconduct of, or breach of the Lease by Tenant, its employees,
subtenants, invitees or by any other person entering the Premises, the Building,
or the Project under express or implied invitation of Tenant, or arising out of
Tenant's use of the Premises, except to the extent caused by the negligence or
willful misconduct of Landlord. Landlord shall not be liable or responsible for
any loss or damage to any property or death or injury to any person occasioned
by theft, fire, act of God, public enemy,
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criminal conduct of third parties, injunction, riot, strike, insurrection, war,
court order, requisition of other governmental body or authority, by other
tenants of the Building or any other matter, or for any injury or damage or
inconvenience which may arise through repair or alteration of any part of the
Building, or failure to make repairs, or from any cause whatever except
Landlord's willful misconduct or negligence.
11. Subordination and Mortgagee's Right to Cure Landlord's Defaults. This
Lease and all rights of Tenant hereunder are subject and subordinate to any
deeds to secure debt, mortgages or any other instruments of security, as well as
to any ground leases, that now or hereafter cover all or any part of the
Building, the land situated beneath the Building or any interest of Landlord
therein, and to any and all advances made on the security thereof, and to any
and all increases, renewals, modifications, consolidations, replacements and
extensions of any such instruments. This provision shall be self-operative and
no further instrument shall be required to effect such subordination of this
Lease. Tenant shall, however upon demand execute, acknowledge and deliver to
Landlord any and all instruments and certificates that in the judgment of
Landlord may be necessary or proper to confirm or evidence such subordination.
Notwithstanding the generality of the foregoing provisions of this Section,
Tenant agrees that any such mortgagee shall have the right at any time to
subordinate any such instruments to this Lease on such terms and subject to such
conditions as such mortgagee may deem appropriate.
Tenant further covenants and agrees upon demand by Landlord's
mortgagee at any time, before or after the institution of any proceedings for
the foreclosure of any such instruments, or sale of the Building pursuant to any
such instruments, to attorn to such purchaser upon any such sale and to
recognize such purchaser as Landlord under this Lease. The agreement of Tenant
to attorn upon demand of Landlord's mortgagee contained in the immediately
preceding sentence shall survive any such foreclosure sale. Tenant shall upon
demand at any time or times before or after any such foreclosure sale, execute,
acknowledge and deliver to Landlord's mortgagee any and all instruments and
certificates that in the judgment of Landlord's mortgagee may be necessary or
proper to confirm or evidence such attornment. Tenant hereby irrevocably
appoints Landlord's mortgagee as Tenant's agent and attorney-in-fact for the
purpose of executing, acknowledging and delivering any such instruments and
certificates.
Landlord will request from the future mortgagee(s) or superior
lessors of the Building that it (and Landlord will use reasonable efforts to
have said mortgagee[s]) execute and deliver to Tenant a document wherein it is
agreed that, provided Tenant is not in default under any of the terms,
conditions and/or provisions of this Lease, beyond any applicable grace period,
neither Tenant's possession of the Demised Premise nor its rights under this
Lease shall be disturbed. Landlord shall provide a copy of said request to
Tenant. Tenant acknowledges and agrees that (i) it shall reimburse Landlord, on
demand, for all of Landlord's reasonable costs (including, without limitation,
all reasonable legal fees and disbursements) connected in any way with
Landlord's above-mentioned request to the mortgagee(s) of the Building, (ii) no
representations, warranties or promises have been made to Tenant that the
mortgagee(s) of the Building will execute such a document, (iii) neither this
Lease nor compliance by Tenant with any of its terms, conditions and/or
provisions are conditioned, in any manner whatsoever, on (x) the execution or
non-execution of such a document, or (y) the issue of whether Landlord used
reasonable efforts to have said mortgagee(s) execute such a document and (iv)
Tenant shall have no rights or remedies whatsoever against anyone or thing in
the event the mortgagee(s) of the Building does not execute such a document.
Notwithstanding anything to the contrary contained in the foregoing,
Landlord represents that it shall, if it has not done so on or prior to the
delivery of a fully executed Lease to Tenant, deliver to Tenant a
Non-Disturbance Agreement from the current holder(s) of all mortgages and all
superior leases on the Premises ("NDA"). Furthermore, if Landlord does not
deliver the NDA within sixty (60) days of the Commencement Date #2 (unless due
to the fault of the Tenant), Tenant shall have the right to cancel this Lease
within fifteen (15) business days (time being of the essence) after the
expiration of said sixty (60) days, provided (i) Tenant gives written notice to
Landlord of its intention to cancel this Lease (the "NDA" Termination Notice")
within said fifteen (15) business day period and (ii) Landlord thereafter fails
to deliver the NDA within fifteen (15) business days of Landlord's receipt of
the NDA Termination Notice. Tenant acknowledges and agrees that it shall
reimburse Landlord, on demand, for all of Landlord's reasonable costs
(including, without limitation, all reasonable legal fees and disbursements)
connected in any way with Landlord's above-mentioned request to the mortgagee(s)
of the Building.
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12. Rules and Regulations. Provided that the rules and regulations set
forth as Exhibit C are applied uniformly to all tenants in the Building, Tenant
and Tenant's agents, employees and invitees will comply with all the rules and
regulations of the Building which are attached hereto as Exhibit "C" and
incorporated herein by reference. Landlord in its sole judgement shall have the
right to change such rules and regulations or to promulgate other rules and
regulations in a manner deemed advisable for safety, care, or cleanliness of the
Building and related facilities or premises, and for preservation of good order
therein, all of which rules and regulations, changes and amendments will be
applied uniformly to all tenants in the Building and will be forwarded to Tenant
in writing and shall be carried out and observed by Tenant. Tenant shall further
be responsible for the compliance with such rules and regulations by the
employees, servants, agents, visitors and invitees of Tenant. Notwithstanding
the foregoing, in the event there is any conflict between the provisions of this
Lease and the Rules and regulations, the provisions of this Lease shall control.
13. Inspection. Landlord or its officers, agents, and representatives
shall have the right to enter into and upon any and all parts of the Premises at
all reasonable hours (or, in any emergency, at any hour) to (a) inspect same or
clean or make repairs or alterations or additions as Landlord may deem
necessary, including but not limited to the installment of new windows (but
without any obligation to do so, except as expressly provided for herein) or (b)
show the Premises to prospective tenants within the last six (6) months of the
Lease Term or any extension thereof, purchasers or lenders; and Tenant shall not
be entitled to any abatement or reduction of Rent by reason thereof, nor shall
such be deemed to be an actual or constructive eviction. Notwithstanding
anything to the contrary contained in this Lease, except in the event of an
emergency or where such entry is required by law, Landlord's right of entry
shall be exercised following reasonable advance notice to Tenant. Landlord
agrees that while exercising such right of entry or making such repairs,
replacements or improvements, Landlord shall perform its work diligently and
shall use best efforts to avoid materially interfering with Tenant's business or
disrupting same, but in no event shall Landlord be required to incur overtime
charges for same.
14. Condemnation. If the Premises, or any part thereof, or if the Building
or any portion of the Building, leaving the remainder of the Building unsuitable
for use as an office building comparable to its use on Commencement Date #1 or
Commencement Date #2 of this Lease, shall be taken or condemned in whole or in
part for public purposes, or sold in lieu of condemnation, then the Lease Term
shall, at the sole option of Landlord, forthwith cease and terminate. All
compensation awarded for any taking (or sale proceeds in lieu thereof) shall be
the property of Landlord, and Tenant shall have no claim thereto, the same being
hereby expressly waived by Tenant. Notwithstanding anything contained in this
Lease to the contrary, Tenant shall be entitled to claim, prove, and receive in
condemnation proceedings or other proceedings in the event of a conveyance in
lieu of condemnation, damages for relocation costs, improvements, fixtures and
other equipment installed by Tenant, together with any award for loss of
business or leasehold interest paid for by Tenant.
15. Casualty. In the event the Demised Premises or the Building are
totally damaged or are rendered wholly untenantable by fire or other casualty,
Landlord may, as provided for hereinafter, give Tenant written notice of
Landlord's election to terminate this Lease, and thereupon the term of this
Lease, shall expire by lapse of time upon the tenth (10th) day after such notice
is given, and Tenant shall vacate the Demised Premises and surrender the same to
Landlord. If Tenant shall not be in monetary or material nonmonetary default
under this Lease after the expiration of any applicable cure period, then upon
the termination of this Lease under the conditions provided for hereinafter,
Tenant's liability for Rent accruing subsequent to the fire or casualty shall
cease and be apportioned as of the day following such fire or casualty.
Notwithstanding anything to the contrary contained in this Lease, Landlord
shall, within the earlier of (a) one hundred twenty (120) days from the fire or
casualty or (b) thirty (30) business days after Landlord receives written notice
from its insurance carrier regarding the extent of insurance proceeds Landlord
will receive to restore the Building and/or the Demised Premises (as is required
under this Lease), give Tenant written notice of it's intention to either (i)
restore or rebuild the Demised Premises in character, layout and area
substantially equal to the Premises damaged or destroyed immediately prior to
such damage or destruction (except Landlord shall not be required to rebuild,
repair or replace any part of the furniture, equipment, fixtures and other
improvements which may have been placed by Tenant [or by Landlord on behalf of
Tenant (e.g., any improvement to Exhibit "E" hereinafter)] in the Premises)
within two hundred ten (210) days from the date of such fire or other casualty
(but such two hundred ten [210] day period shall be subject to reasonable
extensions and delays resulting from acts of God, fire, strikes, lockouts, labor
trouble, inability to procure materials by reason of governmental restrictions,
riots, insurrection, war or other causes beyond the reasonable control of
Landlord), or (ii) terminate this Lease ("Casualty Notice").
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Notwithstanding anything to the contrary contained in this Lease, Tenant shall
have the option to cancel this Lease, in the event (i) the casualty occurs
during the last year of the Lease term, (ii) the casualty occurs at any time
and, in both Landlord's and Tenant's reasonable opinion, the restoration will
take over three hundred sixty (360) days from said occurrence or (iii) the
Casualty Notice informs Tenant that Landlord's restoration will take over two
hundred forty (240) days to restore from the date of the casualty or damage. It
is agreed that if Landlord elects to restore or rebuild as provided for above,
this Lease shall continue in full force and effect, but the Rent and all other
obligations of Tenant shall xxxxx as of the date of such fire or other casualty
(except as otherwise provided for above) until the Demised Premises shall have
been restored or rebuilt by Landlord (as provided for above) and possession
thereof shall have been delivered to Tenant. If Landlord does not give Tenant
notice of its election to terminate the Lease within the period required under
this Article 15, then Tenant shall have the right (provided Tenant is not in
default under the Lease beyond any applicable notice and cure period and Tenant
cannot conduct its business operations within the Premises) to elect to
immediately cancel this Lease by giving written notice to Landlord, provided
Tenant notifies Landlord in writing that "Landlord failed to cancel this Lease
within the required time period of Article 15 and that Landlord's subsequent
failure to void Tenant's notice of termination of the Lease within five (5)
business days of Landlord's receipt of this correspondence shall be deemed
Landlord's acceptance of Tenant's termination of this Lease". A copy of such
notice must be simultaneously sent to Landlord's counsel (or such other parties
as Landlord may from time to time designate) in accordance with the notice
provisions of this Lease in order for such request to be deemed effective. If
any part of the Demised Premises is damaged or destroyed by fire or other
casualty or accident (unless the damage or casualty was caused by Tenant), the
Base Rent and Additional Rent shall be abated proportionately until the Demised
Premises are restored in the manner required of Landlord, taking into account
the proportion of the Demised Premises rendered untenantable. If any mortgagee
under a deed to secure debt, security agreement or mortgage requires the
insurance proceeds be applied against the mortgage debt, Landlord shall have no
obligation to rebuild and this Lease shall terminate upon notice to Tenant;
provided, however, that Landlord shall notify Tenant, within thirty (30) days
after any such mortgagee gives a notice to Landlord of such election to apply
such proceeds against the mortgage debt, of the fact that such mortgagee has
done so. Except as hereinafter provided, any insurance which may be carried by
Landlord or Tenant against loss or damage to the Building or to the Premises
shall be for the sole benefit of the party carrying such insurance and under its
sole control. Tenant hereby waives the provisions of any applicable law and
agrees that the provisions of this Section 15 shall control in lieu thereof.
Furthermore, if Landlord does not repair the damage from the casualty
within the aforesaid period required under this subparagraph, then Tenant shall
have the right (provided Tenant is not in default under the Lease beyond any
applicable notice and cure period and Tenant cannot conduct its business
operations within the Premises) to elect to cancel this Lease by giving written
notice to Landlord, provided Tenant notifies Landlord in writing that "Landlord
failed to cancel this Lease within the required time period of Article 15 and
that Landlord's subsequent failure to void Tenant's notice of termination of the
Lease within thirty (30) business days of Landlord's receipt of this
correspondence shall be deemed Landlord's acceptance of Tenant's termination of
this Lease". Accordingly, Landlord can only void Tenant's termination notice by
delivery of the Premises in the condition required under this Article 15 within
thirty (30) business days of Landlord's receipt of the termination notice.
In the event the Demised Premises are partially [e.g., less than ten
percent (10%) of the Demised Premises] damaged or are rendered partially [e.g.,
less than ten percent (10%) of the Demised Premises untenantable by fire or
other casualty, Landlord shall within one hundred eighty (180) days from the
fire or casualty repair the area the of the Demised Premises damaged in a manner
substantially equal to the Premises damaged or destroyed immediately prior to
such damage or destruction (except Landlord shall not be required to rebuild,
repair or replace any party of the furniture, equipment, fixtures and other
improvements which may have been placed by Tenant [or Landlord on behalf of
Tenant] in the Premises. Such one hundred eighty (180) day period shall be
subject to reasonable extensions and delays resulting from acts of God, fire,
strikes, lockouts, labor trouble, inability to procure materials by reason of
governmental restrictions, riots, insurrection, war or other causes beyond the
reasonable control of Landlord. If Landlord does not repair the damage from the
casualty within the aforesaid period required under this subparagraph, then
Tenant shall have the right (provided Tenant is not in default under the Lease
beyond any applicable notice and cure period and Tenant cannot conduct its
business operations within the Premises) to elect to cancel this Lease by giving
written notice to Landlord, provided Tenant notifies Landlord in writing that
"Landlord failed to cancel this Lease within the required time period of Article
15 and that Landlord's subsequent failure to void Tenant's notice of termination
- 20 -
of the Lease within thirty (30) business days of Landlord's receipt of this
correspondence shall be deemed Landlord's acceptance of Tenant's termination of
this Lease". Accordingly, Landlord can only void Tenant's termination notice by
delivery of the Premises in the condition required under this Article 15 within
thirty (30) business days of Landlord's receipt of the termination notice. A
copy of such notice must be simultaneously sent to Landlord's counsel (or such
other parties as Landlord may from time to time designate) in accordance with
the notice provisions of this Lease in order for such request to be deemed
effective.
16. Holding Over.
(a) Intentionally Deleted.
(b) If Tenant holds over its possession after the expiration or
sooner termination of the original term or of any extended
term of this Lease, such holding over shall not be deemed to
extend the term or renew the Lease (e.g., such holding over
shall constitute a tenancy at will and shall not be construed
as Landlord's consent for Tenant to hold over), but such
holding over thereafter shall continue upon the covenants and
conditions herein set forth, except that the charge for use
and occupancy of such holding over for each calendar month or
part thereof (even if such part shall be a small fraction of a
calendar month) shall be the sum of (unless Landlord and
Tenant are then currently in good faith negotiations for a
renewal of the term of this Lease, the multiplier shall be
100%):
i) 1/12 of the highest annual rent rate set forth in
Article 1.8 of this Lease, times one hundred fifty
percent (150%), plus
ii) 1/12 of the net increase, if any, in annual fixed rental
due solely to increases in the cost of the value of
electric service furnished to the premises in effect on
the last day of the term of the Lease, plus
iii) 1/12 of all other items of annual additional rental,
which annual additional rental would have been payable
pursuant to this Lease had this Lease not expired, plus
iv) those other items of Additional Rent (not annual
additional rent) which would have been payable monthly
pursuant to this Lease, had this Lease not expired,
which total sum Tenant agrees to pay to Landlord promptly upon
demand, in full, without set-off or deduction. Neither the billing
nor the collection of use and occupancy of the above amount shall be
deemed a waiver of any right of Landlord to collect damages for
Tenant's failure to vacate the Demised Premises after the expiration
or sooner termination of this Lease. The aforesaid provisions of
this Article shall survive the expiration or sooner termination of
this Lease.
17. Taxes on Tenant's Property. Tenant shall be liable for all taxes
levied or assessed against personal property, furniture or fixtures placed by
Tenant in the Premises (herein called "Tenant's Property"). If any such taxes
for which Tenant is liable are levied or assessed against Landlord or Landlord's
property and if Landlord elects to pay the same or if the assessed value of
Landlord's property is increased by inclusion of personal property, furniture or
fixtures placed by Tenant in the Premises, and Landlord elects to pay the taxes
based on such increase, Tenant shall pay to Landlord upon demand that part of
such taxes for which Tenant is primarily liable hereunder.
18. Events of Default. The following shall be events of default by Tenant
("Event of Default") under this Lease (except with regard to Articles 18.2 and
18.7, it shall only be an Event of Default after Tenant has received fifteen
(15) days written notice of said default [unless said default is not reasonably
capable of cure within said period, Tenant must undertake with all diligence,
all necessary steps to cure same within said fifteen (15) days and thereafter
continue to diligently pursue said cure to completion] and the aforesaid default
has not been cured within the applicable cure period):
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18.1 Tenant shall fail to pay when due any Base Rent payable by
Tenant hereunder (or under any other lease now or hereafter executed by Tenant
in connection with the Building). Notwithstanding the foregoing, with regard to
Article 18.1, Landlord shall provide Tenant with written notice of such default
and Tenant shall have ten (10) days after receipt of such notice of default to
cure such default, provided, however, Landlord shall only be obligated to
provide notice of a default under Article 18.1 two (2) times in any twelve (12)
month period. If Tenant shall fail to pay when due any other sums payable by
Tenant hereunder, including Additional Rent, Landlord shall provide Tenant with
written notice of such default and Tenant shall have ten (10) days after receipt
of such notice of default to cure such default.
18.2 Tenant shall fail to comply with or observe any other provision
of this Lease.
18.3 Tenant or any guarantor of Tenant's obligations hereunder shall
make an assignment for the benefit of creditors.
18.4 Any voluntary or involuntary petition shall be filed by or
against Tenant or any guarantor of Tenant's obligations hereunder under any
section or chapter of the Federal Bankruptcy Act, as amended from time to time,
or under any similar law or statute of the United States or any State thereof;
or Tenant or any guarantor of Tenant's obligations hereunder shall be adjudged
bankrupt or insolvent in proceedings filed thereunder. Notwithstanding the
foregoing, the filing of an involuntary petition in bankruptcy shall not
constitute an Event of Default, so long as the Tenant has moved within sixty
(60) days after such filing to dismiss such involuntary petition, and further
provided that such application is thereafter granted by the United States
bankruptcy court.
18.5 A receiver or trustee shall be appointed for all or
substantially all of the assets of Tenant or any guarantor of Tenant's
obligations hereunder.
18.6 Tenant shall desert or vacate the Premises, without continuing
payments of Base Rent and Additional Rent in accordance with the terms of this
Lease.
18.7 Any writ of execution, attachment, or garnishment shall be
levied against any interest of Tenant in this Lease, the Premises, or any
property located in the Premises.
19. Remedies. If there is an Event of Default by Tenant under this Lease,
then without any notice or demand to Tenant whatsoever (other than that already
given to Tenant under Article 18 hereinabove, where applicable), Landlord shall
have the right (but not any duty) to exercise, on a cumulative basis (but
without duplication of any costs or damages recoverable by Landlord, any or all
of the following remedies:
19.1 Landlord may continue this Lease in full force and effect, and
proceed to collect all Rent when due.
19.2 Without prejudice to any other remedy which Landlord may have,
Landlord may continue this Lease in full force and effect and may enter the
Premises under full and free license from Tenant, to expel or remove Tenant and
any others who may be occupying or within the Premises, to remove any and all
property therefrom, using such force as may be legally permissible, without
being deemed in any manner guilty of trespass, eviction, forcible entry or
detainer and relet all or any portion thereof to other parties for Tenant's
account. Landlord shall not unreasonably refuse any proposed new tenant offered
by Tenant. Tenant shall pay to Landlord on demand all reasonable costs Landlord
incurs in entering the Premises and reletting them, including, without
limitation, brokers' commissions, expenses of repairs and remodeling, reasonable
attorneys' fees, and all other actual costs. Reletting may be for a period
shorter or longer than the remaining term of this Lease. During the term of any
reletting, Tenant shall pay to Landlord the Rent due under this Lease on the
dates due, less any net rents Landlord receives from any reletting.
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19.3 Provided Landlord has given any notice required (if any) under
Article 18 of this Lease, Landlord may terminate Tenant's rights under this
Lease at any time by serving a written five (5) day notice of termination
("Notice of Termination"), which Notice of Termination shall not be effective
until five (5) days after Tenant's receipt or rejection thereof. Landlord shall
have the right to recover from Tenant all reasonable costs, expenses, losses and
damages caused by, resulting from or incurred in connection with said default
and/or termination including, but not limited to:
19.3.1 An amount equal to all unpaid Rent that had accrued
prior to the time of termination of this Lease;
19.3.2 An amount equal to (a) the amount of Rent that would
have accrued under this Lease between (i) the date of termination of
this Lease, and (ii) the date the calculation is made under this
Subsection 19.3.2 if this Lease had not been so terminated; less (b)
any net amounts of rent actually received by Landlord with respect
to such time period; plus
19.3.3 Intentionally Deleted.
19.3.4 An amount equal to (a) all actual costs and expenses,
including but not limited to reasonable attorneys' fees, that have
been incurred by Landlord prior to the date the calculation of said
amounts is made.
19.4 Landlord may send Tenant a written three (3) day notice from
Landlord informing Tenant that three (3) days from Tenant's receipt or rejection
thereof, without showing of need or the presence of any statutory or common law
grounds, all of which requirements are hereby expressly waived, Landlord may
have a receiver appointed to take possession of and relet the Premises, in
accordance with Subsection 19.2. Tenant shall pay to Landlord on demand all
costs Landlord incurs in connection therewith.
19.5 Unless a shorter time period is provided for in any other
Article of this Lease, Landlord may cure any default at Tenant's cost after five
(5) days prior written notice to Tenant. If Landlord at any time, by reason of
Tenant's default, pays any sum to cure any default, the sum so paid by Landlord
shall be immediately due from Tenant to Landlord within thirty (30) days after
Tenant's receipt of Landlord's Statement, and shall bear interest at the Default
Rate from the date paid by Landlord until Landlord shall have been reimbursed by
Tenant. Said sum, together with interest thereon, shall be Additional Rent.
19.6 Landlord may apply all or part of the Security Deposit, as
provided in Section 3.4.
19.7 Landlord may exercise any or all other rights or remedies
available at law or equity, including, without limitation, the right to obtain
restraining orders, injunctions and decrees of specific performance.
19.8 Landlord may obtain an injunction by any court of competent
jurisdiction restraining any threatened breach or any continuing breach of any
of Tenant's covenants hereunder.
Any right granted in this Section 19 to Landlord in the event of a
default by Tenant hereunder shall apply to any extension or renewal of this
Lease. No act or thing done by Landlord or Landlord's employees or agents during
the Lease Term shall be deemed an acceptance of a surrender of the Premises. No
waiver by Landlord of any default of Tenant hereunder shall be implied from any
inaction by Landlord on account of such default if such default persists or is
repeated, and no express waiver shall affect any default other than the default
specified in the express waiver and then only for the time and to the extent
therein stated. The receipt by Landlord of Rent with knowledge of the breach of
any covenant of Tenant contained in this Lease shall not be deemed a waiver of
such breach. If on the Lease Commencement Date #1 or thereafter during the Lease
Term, Tenant shall be in default in the payment of rent to Landlord pursuant to
the terms of any other lease(s) with Landlord or with Landlord's predecessor in
interest, Landlord may, at Landlord's option and without notice to Tenant, add
the amount of such arrearages to any monthly
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installment of Base Rent or Additional Rent payable hereunder and the same shall
be payable to Landlord as Additional Rent.
20. Attorneys' Fees. Tenant hereby agrees to pay, as Additional Rent, all
reasonable attorneys fees and disbursements (and all other court costs or
expenses of legal proceedings) which Landlord may incur or pay out by reason of,
or in connection with:
A. any action or proceeding by Landlord to terminate this Lease (if
Landlord is successful in its action);
B. any other action or proceeding by Landlord against Tenant
(including, but not limited to, any arbitration proceeding), if
Landlord is successful in its action;
C. any default by Tenant in the observance or performance of any
obligation under this Lease (including, but not limited to, matters
involving: payment of Rent and Additional Rent; computation of
escalations; alterations or other Tenant's work; and subletting or
assignment), after the expiration of any applicable notice and cure
periods, whether or not Landlord commences any action or proceeding
against Tenant; and
D. any action or proceeding brought by Tenant against Landlord (or any
officer, partner, or employee of Landlord) in which Landlord is
successful.
Notwithstanding anything to the contrary contained in this Article, if
Landlord is in default under this Lease beyond the applicable written
notice and/or grace period, and the Tenant commences legal proceedings
with regard thereto, the Landlord shall pay to Tenant (if Tenant is
successful in it's action), within ten (10) days of the order of the
appropriate court, all of such non-defaulting party's reasonable and
actual attorneys' fees and disbursements and court costs or expenses of
such legal proceeding.
Tenant's and Landlord's obligations under this Paragraph 20 shall survive
the expiration of the term hereof or any other termination of this Lease.
This Paragraph is intended to supplements (and not to limit) other
provisions of this Lease pertaining to indemnities and/or attorney's fees.
21. Security Interest. Intentionally Deleted.
22. Liens. Tenant will not permit any lien to be placed upon the Premises,
the Building or any improvements thereon during the Lease Term caused by or
resulting from any work performed, materials furnished or obligation incurred by
or at the request of Tenant. All persons contracting with Tenant for the
construction and installation of improvements to or alteration or repair of the
Premises and all materialmen, contractors, mechanics and laborers are hereby
charged with notice that they must look to Tenant's interest in the Premises
only to secure payment of any xxxx for work done or materials furnished during
the Lease Term. In the case of the filing of any such lien, Tenant will promptly
pay or otherwise discharge the same. If default in payment or discharge thereof
shall continue for twenty (20) days after notice thereto from Landlord to
Tenant, Landlord shall have the right at Landlord's option of paying the same
without inquiry as to the validity thereof, and any amounts so paid, including
expenses and interest, shall be so much Additional Rent hereunder due from
Tenant to Landlord and shall be repaid to Landlord immediately on demand.
23. Waiver of Subrogation. In the event the Premises or its contents are
damaged or destroyed by fire or other insured casualty, (i) Landlord, to the
extent of the coverage of Landlord's policies of fire insurance, hereby waives
its rights, if any, against Tenant with respect to such damage or destruction,
even if said fire or other casualty shall have been caused, in whole or in part,
by the negligence of Tenant, and (ii) Tenant, to the extent of the coverage of
Tenant's policies of fire insurance with extended coverage, hereby waives its
rights, if any, against Landlord with respect to such damage, or destruction,
even if said fire or other casualty shall have been caused, in whole or in part,
by the negligence of Landlord; provided, however, such waivers of subrogation
shall only be effective with respect to loss or damage occurring during such
time as Landlord's or Tenant's policies of fire insurance (as the case may be)
shall contain a clause or endorsement providing in substance that the aforesaid
waiver of subrogation shall not prejudice the type and amount of coverage under
such policies or the right of Landlord or Tenant (as the case may
- 24 -
be) to recover thereunder. If, at any time, Landlord's or Tenant's insurance
carrier refuses to write insurance which contains a consent to the foregoing
waiver of subrogation, Landlord or Tenant, as the case may be, shall notify the
party thereof in writing, and upon the giving of such notice, the provisions of
this Section shall be null and void as to any casualty which occurs after such
notice. If Landlord's or Tenant's insurance carrier shall make a charge for the
incorporation of the aforesaid waiver of subrogation in its policies, then the
party requesting the waiver shall promptly pay such charge to the other party
upon demand. In the event the party requesting their waiver fails to pay such
charge upon demand, the other party shall be released of its obligation to
supply such waiver.
24. Tenant's Insurance. Tenant shall carry (at its sole expense during the
Term):
(i) all-risk property insurance, insuring Tenant's interest in its
improvements to the Premises and any and all furniture, fixtures,
equipment, supplies, inventory, contents and other property owned, leased,
held or possessed by Tenant and contained therein. Such insurance shall be
in an amount equal to the full replacement cost of such improvements and
property, as such may increase from time to time, without deduction for
depreciation, providing protection against all perils included within the
classification of fire, extended coverage, vandalism, malicious mischief,
special extended peril (all risk), boiler and machinery, flood, glass
breakage and sprinkler leakage, and naming Landlord as loss payee as its
interest may appear;
(ii) worker's compensation insurance required by applicable law; and
(iii) comprehensive or commercial general liability insurance on an
occurrence basis for injury to or death of a person or persons and for
damage to property occasioned by or arising out of any construction work
being done on the Premises, or arising out of the condition, use, or
occupancy of the Premises, or other portions of the Building or Property,
and covering Tenant's indemnification obligations imposed by Paragraph 15
of this Lease, the limits of such policy or policies to be in amounts not
less than Three Million and No/100 Dollars ($3,000,000.00) in primary
liability coverage and Two Million and No/100 Dollars ($2,000,000.00) in
excess liability coverage.
Landlord retains the right, in its sole discretion, to increase the
amount of insurance required to be carried by Tenant not more frequently than
annually based on such factors as inflation, Tenants insurance claims history,
the advice of Landlord's insurance advisors and any other relevant factors,
provided that all such standards are equally applied to all the tenants of the
Building. All said insurance policies shall be carried with companies licensed
to do business in the state in which the Premises are located reasonably
satisfactory to Landlord and shall be noncancellable except after thirty (30)
days written notice to Landlord. Each policy shall name Landlord, Landlord's
property manager and any other person designated by Landlord as additional
insureds and provide that it is primary to, and not contributing with, any
policy carried by Landlord, Landlord's property manager, or other designated
person covering the same loss. Tenant shall deliver duly executed certificates
of such insurance to Landlord prior to Commencement Date #1 and Commencement
Date #2 and at least thirty (30) days prior to the expiration of each respective
policy term. No insurance policy or policies required to be carried by Tenant
will be subject to more than a $50,000.00 deductible limit without Landlord's
prior written consent. If Tenant fails to take out or keep in force any
insurance required to be carried by Tenant, or to provide evidence of the same,
Landlord shall have the right, but shall not be obligated, to obtain such
insurance at the sole cost and expense of Tenant, and Tenant shall reimburse
Landlord for the cost thereof upon demand. If, due to the failure of Tenant to
comply with the foregoing provisions, Landlord is adjudged a co-insurer by its
insurance carrier, then any loss or damage Landlord shall sustain by reason
thereof shall be borne by Tenant and shall be immediately paid by Tenant upon
receipt of a xxxx therefor from Landlord and evidence of such loss. Landlord
makes no representation that the minimum limits of liability specified to be
carried by Tenant hereunder are adequate to protect Tenant. Landlord shall have
the right at any time and from time to time during the term of this Lease (but
not more then one [1] time in any calendar year and in no event [i] prior to the
third [3rd] anniversary of the Lease term and [ii] by not more than
$1,000,000.00 in the aggregate over the remainder of the Lease term) on not less
than thirty (30) days' notice to Tenant to require that Tenant increase the
amounts and/or types of coverage required to be maintained under this Article to
the amounts and/or types of coverage then required by Landlord of tenants
entering into new leases in the Building and are carried by similarly situated
tenants in comparable buildings. Landlord shall maintain during the term of this
Lease a policy or policies of insurance insuring the Building
- 25 -
for not less than ninety-five percent (95%) of its replacement value against
loss or damage due to fire and other casualties covered within the
classification of fire and leakage, water damage and special extended coverage
on the building. Such policy or policies shall otherwise be of a nature carried
by owners of similar buildings located in the City of Newark, State of New
Jersey.
25. Brokerage. CRG REAL ESTATE SERVICES, LLC HAS REPRESENTED LANDLORD IN
THIS TRANSACTION ("CRG") AND EQUIS CORPORATION HAS REPRESENTED TENANT IN THIS
TRANSACTION ("EQUIS"). CRG AND EQUIS SHALL BE PAID A COMMISSION BY LANDLORD IN
CONNECTION WITH THIS LEASE PURSUANT TO SEPARATE AGREEMENTS. Landlord and Tenant
warrant to the other that it has had no dealings with any broker or agent in
connection with the negotiation or execution of this Lease other than with the
brokers specifically identified above, and Landlord and Tenant agree to
indemnify the other against all costs, expenses, attorneys' fees or other
liability for commissions or other compensation or charges claimed by any broker
or agent claiming the same by, through or under Tenant, other than with the
brokers specifically identified above.
26. Building Name. Without the prior written consent of Landlord, Tenant
shall not use the words "744 Broad Street" or the name of the Building for any
purposes other than as the address of the business to be conducted by Tenant in
the Premises. Landlord reserves the right to change the name or number by which
the Building or the Project is designated, provided Tenant is notified in
writing at least sixty (60) days prior thereto.
27. Estoppel Certificates. Tenant shall furnish from time to time when
requested by Landlord or the holder of any deed to secure debt or mortgage
covering the Building, the Premises, or any interest of Landlord therein, a
certificate signed by Tenant confirming and containing such certifications and
representations reasonably deemed appropriate by Landlord or the holder of any
deed to secure debt or mortgage covering the Building, the Premises or any
interest of Landlord therein, and Tenant shall, within ten (10) business days
following receipt of said certificate from Landlord, return a fully executed
copy of said certificate to Landlord. If Tenant fails to return a fully executed
copy of such certificate to Landlord within said period, Tenant shall have
approved and confirmed all of the provisions contained in such certificate. In
addition to the foregoing, Landlord reserves the right to exercise any further
rights or remedies available to it under the Lease, at law or equity by reason
of Tenant's default hereunder.
28. Notices. Each provision of this Lease, or of any applicable laws,
ordinances, regulations, and other requirements with reference to the sending,
mailing or delivery of any notice, or with reference to the making of any
payment by Tenant to Landlord, shall be deemed to be complied with when and if
the following steps are taken:
28.1 All Rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at Landlord's Address set forth
in Section 1.5 or at such other address as Landlord may specify from time to
time by written notice delivered in accordance herewith, and
28.2 Any notice or document required to be delivered hereunder shall
be deemed to be delivered if actually received and whether or not received when
deposited in the United States mail, postage prepaid, certified or registered
mail (with or without return receipt requested), addressed to the parties hereto
at the respective addresses set forth in Article 1 or at such other address as
either of said parties shall have theretofore specified by written notice
delivered in accordance herewith.
Any and all notices to Landlord shall be also be sent to:
Xxxxx X. Xxxxx, Esq.
1330 Avenue of the Americas
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Any and all notices to Tenant shall be also be sent to:
Xxxxxx X. Xxxx, Esq.
Xxxxxxx Xxxxxx Xxxx & Ball P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
29. Force Majeure. Any prevention, delay or stoppage of work or other
obligation to be performed by Landlord or Tenant which is due to strikes, labor
disputes, inability to obtain labor, materials, equipment or reasonable
substitutes thereof, acts of God, governmental restrictions or regulations or
controls, judicial orders, enemy or hostile government actions, civil commotion,
fire or other casualty, or other causes beyond the control of either Landlord or
Tenant, as the case may be, shall forgive the performance of the work by that
party for a period equal to the duration of that prevention, delay or stoppage.
Nothing in this Article 29 shall excuse or delay Tenant's obligation to pay Base
Rent, Additional Rent or other charges under this Lease, except as expressly
provided for otherwise in the Lease.
30. Severability. If any clause or provision of this Lease is illegal,
invalid or unenforceable under present or future laws effective during the Lease
Term, then and in that event, it is the intention of the parties hereto that the
remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
31. Amendments: Binding Effect. This Lease may not be altered, changed or
amended, except by instrument in writing signed by both parties hereto. No
provision of this Lease shall be deemed to have been waived by Landlord or
Tenant unless such waiver be in writing signed by Landlord or Tenant, as the
case may be, and addressed to the other party, nor shall any custom or practice
which may evolve between the parties in the administration of the terms hereof
be construed to waive or lessen the right of Landlord or Tenant to insist upon
the performance by the other party in strict accordance with the terms hereof.
The terms and conditions contained in this Lease shall apply to, inure to the
benefit of, and be binding upon the parties hereto, and upon their respective
successors in interest and legal representatives, except as otherwise herein
expressly provided.
32. Quiet Enjoyment. Provided Tenant has performed all of the terms and
conditions of this Lease, including the payment of Rent, to be performed by
Tenant within any applicable notice and cure period, Tenant shall peaceably and
quietly hold and enjoy the Premises for the Lease Term, without hindrance from
Landlord, subject to the terms and conditions of this Lease.
33. Gender. Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural, unless the context otherwise requires.
34. Joint and Several Liability. If there is more than one Tenant, the
obligations hereunder imposed upon Tenant shall be joint and several. If there
is a guarantor of Tenant's obligations hereunder, the obligations hereunder
imposed upon Tenant shall be joint and several obligations of Tenant and such
guarantor and Landlord need not first proceed against Tenant before proceeding
against such guarantor nor shall any such guarantor be released from its
guaranty for any reason whatsoever, including without limitation, in case of any
amendments hereto, waivers hereof or failure to give such guarantor any notices
hereunder.
35. Captions. The captions contained in this Lease are for convenience of
reference only, and in no way limit or enlarge the terms and conditions of this
Lease.
36. Exhibits and Attachments. All exhibits, attachments, riders and
addenda referred to in this Lease are incorporated into this Lease and made a
part hereof for all intents and purposes.
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37. No Joint Venture. Landlord and Tenant are not and shall not be deemed
to be partners or joint venturers with each other.
38. Intentionally Deleted.
39. Evidence of Authority. If Tenant is other than a natural person,
Tenant shall deliver to Landlord such legal documentation as Landlord may
request to evidence the authority of those signing this Lease to bind the
Tenant.
40. Governing Law. This Lease shall be construed and interpreted in
accordance with and governed by the laws of the state in which the Premises are
located.
41. Entire Agreement. This Lease constitutes the entire agreement between
the parties, and there is no other agreement between the parties relating in any
manner to the Project.
42. Exculpation. The term Landlord as used in this Lease so far as
covenants or obligations on the part of Landlord are concerned shall be limited
to mean and include only the owner or owners at the time in question of the
Landlord's interest in the Building. Tenant acknowledges and agrees, for itself
and its successors and assigns, that no trustee, director, officer, employee or
agent of Landlord shall be personally liable for any of the terms, covenants or
obligations of Landlord hereunder (excluding the return to Tenant of any
remaining balance of the Security Deposit held by Landlord upon termination of
this Lease if Landlord has fraudulently converted the Security Deposit), and
Tenant shall look solely to Landlord's interest in the Building and any
insurance or sale proceeds for the collection of any judgment (or enforcement or
any other judicial process) requiring the payment of money by Landlord with
respect to any of the terms, covenants and conditions of this Lease to be
observed or performed by Landlord and no other property or assets of Landlord
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of any obligation due Tenant or its successors or assigns.
43. Covenants are Independent. Each covenant of Landlord and Tenant under
this Lease is independent of each other covenant under this Lease, and no
default by either party in performance of any covenant shall excuse the other
party from the performance of any other covenant.
44.Intentionally Deleted.
45.Hazardous Materials.
45.1 Tenant shall not cause or permit any Hazardous Material (as
defined in Subsection 45.3 below), other than de minimus quantities for normal
office use and cleaning (provided Tenant shall keep at the Premises, at all
times, copies of all Material Safety Data Sheets or other written information
prepared by manufacturers, importers or suppliers of any chemical and all
notices, filings, permits and any other written communications from or to Tenant
and any regulating entity, if applicable), to be brought, kept or used in or
about the Building by Tenant, its agents, employees, contractors or invitees.
Tenant hereby indemnifies Landlord from and against any breach by Tenant of the
obligations stated in the preceding sentence, and agrees to defend and hold
Landlord harmless from and against any and all loss, damage, cost and/or
expenses (including, without limitation, diminution in value of the Building,
damages for the loss or restriction on use of rentable or usable space or of any
amenity of the Building, damages arising from any adverse impact on marketing of
space in the Building, and sums paid in settlement of claims, attorneys' fees,
consultant fees, and expert fees) which arise during or after the term of this
Lease as a result of such breach. This indemnification of Landlord by Tenant
includes, without limitation, costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal, or
restoration work required by any federal, state, or local governmental agency or
political subdivision because of Hazardous Material present in the soil or
ground water on or under the Building which results from such a breach. Without
limiting the foregoing, if the presence of any Hazardous Material in the
Building caused by Tenant results in any contamination of the Building, Tenant
shall promptly take all actions at its sole expense as are necessary to return
the Building to the conditions existing prior to the introduction of such
Hazardous Material to the Building; provided that the Landlord's approval of
such actions, and the contractors to be used by Tenant in connection therewith,
shall first be obtained.
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Notwithstanding anything to the contrary contained in the foregoing, if there
are presently any asbestos ("Hazardous Material") in the Premises which are in
violation of any applicable law, rule or regulation, Landlord shall remove, at
its sole cost and expense, said Hazardous Material(s) or take such steps to make
the Hazardous Material(s) comply with all applicable laws, rules or regulations
and other requirements relating to any Hazardous Materials, which are imposed by
any governmental authority ("Requirements") as of the Commencement Date #1 and
Commencement Date #2. Supplementing the above, Tenant shall be obligated, at
Tenant's own cost and expense, to comply with Requirements relating to Hazardous
Material(s) which are hereafter imposed by any governmental authority, insofar
as the same affect any materials or improvements installed or made by Tenant to
the Demised Premises. Tenant further agrees, however, that in addition to its
other obligations set forth herein relating to Hazardous Materials(s), if any,
in the Demised Premises, in the event any Tenant's Work causes or results in
said Hazardous Materials(s) to be in violation of an applicable law, rule or
regulation, Tenant shall immediately remove, at its sole cost and expense, said
Hazardous Materials(s) or take such steps to make the Hazardous Materials(s)
comply with the applicable law, rule or regulation.
45.2 Notwithstanding any provision in this Lease to the contrary, it
shall not be unreasonable for Landlord to withhold its consent to any proposed
transfer, assignment, or subletting of the Premises if (i) the proposed
transferee's anticipated use of the Premises involves the generation, storage,
use, treatment, or disposal of Hazardous Material; (ii) the proposed transferee
has been required by any prior landlord, lender, or governmental authority to
take remedial action in connection with Hazardous Material contaminating a
property if the contamination resulted from such transferee's actions or use of
the property in question; or (iii) the proposed transferee is subject to an
enforcement order issued by any governmental authority in connection with the
use, disposal, or storage of a Hazardous Material.
45.3 As used herein, the term "Hazardous Material" means any
hazardous or toxic substance, material, or waste which is or becomes regulated
by any local governmental authority or the United States Government. The term
"Hazardous Material" includes, without limitation, any material or substance
which is (i) defined as a "hazardous waste", "extremely hazardous waste", or
"restricted hazardous waste" or similar term under the law of the jurisdiction
where the property is located, or (ii) designated as a "hazardous substance"
pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C.
ss. 1317), (iii) defined as a "hazardous waste" pursuant to Section 1004 of the
Federal Resource Conservation and Recovery Act, 47 U.S.S. ss. 6901 et seq. (42
U.S.C. ss. 6903), or (iv) defined as a "hazardous substance" pursuant to Section
101 of the Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C. ss. 9600 et seq. (42 U.S.C. ss. 9600).
45.4 As used herein, the term "Laws" means any applicable federal,
state, or local laws, ordinances, or regulation relating to any Hazardous
Material affecting the Building, including, without limitation, the laws,
ordinances, and regulations referred to in Subsection 45.3 above.
45.5 Landlord and its employees, representatives and agents shall
have access to the Building during reasonable hours and upon reasonable notice
to Tenant in order to conduct periodic environmental inspections and tests of
Hazardous Material contamination of the Building.
45.6 Tenant agrees that it will cooperate with Landlord at
Landlord's sole cost and expense (however, if Tenant has in any manner
contributed to the necessity therefor, at Tenant's sole cost and expense) to
permit Landlord to comply with the provisions of the New Jersey Industrial Site
Recovery Act ("ISRA"), if applicable, or any similar applicable laws, prior to
its termination of any activities in the Premises or the expiration of the term
of this Lease, whichever is earlier. If in connection with a sale, transfer, or
mortgage of the Building by Landlord or other transaction by the Landlord where
Landlord is required or deems it desirable to comply with ISRA, Tenant will at
Landlord's sole cost and expense cooperate with Landlord and provide any
reasonable information reasonably requested by Landlord to comply with ISRA or
to obtain a Letter of Nonapplicability.
46. Effect of Conveyance. If Landlord shall sell or lease the Building,
Landlord shall be entirely freed and relieved of all its covenants and
obligations hereunder, and it shall be deemed and construed (without further
agreement between the parties hereto or between the parties to such conveyance)
that the purchaser or lessee of the Building has assumed and agreed to carry out
all the obligations of Landlord hereunder, provided the purchaser or lessee of
the Building has assumed the obligations of Landlord under this Lease in
writing.
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47. Easements. Any diminution or obstruction of light, air or view by any
structure which may be erected on lands adjacent to the Building shall not
affect this Lease or impose any liability on Landlord. Tenant shall not acquire
any right or easement for the use of any door or passageway in any portion of
the Building or the Project, except the easement of necessity for ingress and
egress, if any, in the doors and passageway(s) directly connecting with the
Premises.
48. Waiver of Right of Redemption. Tenant, for itself and all persons
claiming through or under Tenant, hereby expressly waives any and all rights
which are or may be conferred upon Tenant by any present or future law to redeem
the Premises, or to any new trial in any action or ejectment under any provision
of law, after re-entry thereupon by Landlord, or after any warrant to dispossess
or judgement in ejectment. If Landlord shall acquire possession of the Premises
by summary proceedings or in any other lawful manner without judicial
proceedings, it shall be deemed a "re-entry" as that term is used herein.
49. Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY LAW, IT IS
MUTUALLY AGREED BY AND BETWEEN LANDLORD AND TENANT THAT THE RESPECTIVE PARTIES
HERETO SHALL, AND THEY DO HEREBY, WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BETWEEN THE PARTIES HERETO OR THEIR SUCCESSORS OR
ASSIGNS ON ANY MATTERS ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THIS LEASE,
THE RELATIONSHIP OF LANDLORD AND TENANT, AND/OR TENANT'S USE OF, OR OCCUPANCY
OF, THE PREMISES. TENANT FURTHER AGREES THAT IT SHALL NOT INTERPOSE ANY
COUNTERCLAIM OR COUNTERCLAIMS (EXCEPT FOR COMPULSORY OR STATUTORY COUNTERCLAIMS)
IN A SUMMARY PROCEEDING OR IN ANY ACTION BASED UPON NON-PAYMENT OF RENT OR ANY
OTHER PAYMENT REQUIRED OF TENANT HEREUNDER. THIS WAIVER IS MADE FREELY AND
VOLUNTARILY, WITHOUT DURESS, AND ONLY AFTER EACH OF THE PARTIES HERETO HAS HAD
THE BENEFIT OF ADVICE FROM LEGAL COUNSEL ON THE SUBJECT.
50. Interpretation. Should any provisions of this Lease require judicial
interpretation, it is agreed that the court interpreting or construing the same
shall not apply a presumption that the terms of any such provision shall be more
strictly construed against one party or the other by reason of the rule of
construction that a document is to be construed most strictly against the party
who itself or through its agent prepared the same, it being agreed that the
agents of all parties hereto have participated in the preparation of this Lease.
51. No Recordation of Lease. Without the prior written consent of
Landlord, neither this Lease nor any memorandum hereof shall be recorded or
placed on public record.
52. Electric Current.
Tenant acknowledges and agrees that no utilities or other services
have been included in the Rent and that Landlord shall have no obligation to
furnish or supply electricity, heat, air conditioning, water or any other
utility or service to or for the Demised Premises other than as specifically set
forth in this Article 52 and this Lease.
For Premises #1, subsequent to the date PSE&G upgrades the
electrical capacity of the Building, Tenant shall have the option to obtain its
electricity as provided for in Section 52.1 or Tenant may, at its sole option,
purchase electric current at its own cost and expense from the public utility
serving the building for all of its electrical requirements, using existing
building system feeders, risers and wiring to the extent that the same are
available, suitable and safe for such purposes. Tenant shall pay the bills of
said utility pursuant to the meter to be installed by Tenant, and Tenant's
failure to pay the same when due shall be deemed a default under this lease. At
any time during the term Landlord may at its option (provided appropriate
measuring devices and associated equipment are installed by it at its sole cost
and expense) supply Tenant's electric service by meter, and Tenant covenants and
agrees in such instance to purchase its electric service requirements at rates
set by Landlord, provided that such rates shall not exceed those at which Tenant
could purchase such service directly. Tenant's use of electric current in the
Demised Premises shall not at any time exceed the capacity of any of the
existing electrical conductors and equipment or other electrical facilities in
or serving the Demised Premises without the prior written consent of Landlord in
each instance, which consent shall not be unreasonably withheld, conditioned or
delayed. Should Landlord grant any such consent, all additional risers or other
equipment required therefor shall be installed by Landlord and the cost thereof
shall be paid by Tenant promptly upon demand.
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52.1 Until such time as Tenant has installed all meters and
equipment necessary to purchase electric current at its own cost and expense
from the public utility for Premises #1 as provided for in the preceding
paragraph, Landlord shall supply Tenant and Tenant shall pay Landlord, as
Additional Rent, electricity for all of Tenant's electrical needs for both
Premises #1 and Premises #2 including, but not limited to, the air conditioning
units (if any) serving the Demised Premises during the normal business hours
referred to below, (i.e., there shall be no separate charge to Tenant for such
electricity by way of measuring the same on any meter or otherwise during the
normal business hours referred to below). The cost of furnishing electricity to
Tenant shall be as estimated in this Paragraph, subject, however, to all of the
other provisions of this Article. Initially, an estimate of $789.67 [$2.00 psf
per annum x 4,738 square feet / 12] shall be charged to Tenant as the monthly
charge for Landlord's service of furnishing electricity to Premises #1 (such
amount, as the same may be increased pursuant to any of the provisions of this
Article, being hereinafter referred to as the "electric factor") for use during
normal business hours of 8:00 a.m. to 6.00 p.m., Mondays through Fridays, and
8:00 a.m. to 1:00 p.m. on Saturdays. An estimate of $2,510.13 [$1.50 psf per
annum x 20,081 square feet / 12] shall be charged to Tenant as the monthly
charge for Landlord's service of furnishing electricity to Premises #2 (such
amount, as the same may be increased pursuant to any of the provisions of this
Article, being hereinafter referred to as the "electric factor") for use during
normal business hours of 8:00 am. to 6:00 p.m., Mondays through Fridays, and
9:00 am. to 1:00 p.m. on Saturdays. The foregoing charges are referred to as the
"Electric Charge". At any time after Tenant takes possession of Premises #1 or
Premises #2, Landlord may cause a survey to be prepared by a reputable,
independent electrical consultant to be selected by Landlord, the cost of which
survey shall be borne equally by Tenant and Landlord. The purpose of said survey
shall be to determine the appropriate charge to Tenant for electricity to be
charged as Additional Rent taking into account the full electric service
including the estimated demand based upon the connected load necessary or useful
for Tenant's operation of all equipment, lighting and other installations,
including, without limitation, air conditioning, heating and ventilation and any
additional hours in excess of normal business hours during which the Demised
Premises are in use (e.g., after hours air conditioning). When the charge for
the electricity has been so determined as a result of such survey, the
Additional Rent charge shall be increased (but in no event decreased) by the
difference between the charge per annum determined by the survey and the
estimated electric factor, effective as of first day of the first month
subsequent to the date of the survey.
The electric factor shall, from time to time, be determined based on a
rate equal to Landlord's cost [including Landlord s administrative costs
relating to same, inclusive of any taxes included in or applicable to such
rates, for supplying all electricity consumed at the Demised Premises, as
determined by readings, from time to time throughout the Term, of Tenant's check
meter(s) [hereafter "Checkmeter"]. Landlord shall install the Checkmeter for the
Demised Premises, the cost of same to be borne equally by Landlord and Tenant.
Tenant shall, at its own cost and expense, be responsible for the maintenance,
repair and replacement (if necessary) of said meter.
52.2 Tenant's use of electricity in the Demised Premises shall not
at any time exceed six (6) xxxxx per rentable square foot, and Landlord agrees
that at no time during the term of this Lease, shall the electrical capacity
available at the Premises be less than six (6) xxxxx per rentable square foot.
In order to insure that such capacity is not exceeded and to avert a possible
adverse effect upon the Building electric service, Tenant shall not, without
Owner's prior written consent in each instance, make any alteration or addition
to the electric system of the Demised Premises. Should Owner grant such consent
(not to be unreasonably withheld, delayed or conditioned), all additional risers
or other equipment required therefor shall be installed by Owner at Tenant's
sole cost and expense, payable as Additional Rent within ten (10) days of
Landlord's written demand. As a condition to granting such consent, Owner may
require that Tenant agree to an increase in the Base Rent by an amount which
will reflect the additional service to be furnished by Owner, that is, the
potential electric energy (connected load) to be made available to Tenant based
upon the estimated additional capacity of such additional risers or other
equipment. Such increase shall be determined on the basis of the value of
furnishing and installing any additional equipment or electrical facilities.
52.3 If the public utility rate schedule for the supply of electric
current to the Building shall be increased at any time after the date hereof, or
if there shall be a change in taxes or if additional taxes shall be imposed upon
the sale or furnishing of such electric current, or if there shall be a change
in the space constituting the Demised Premises, or if Tenant's failure to
maintain its machinery and equipment in good order and repair causes greater
- 31 -
consumption of electrical current, or if Tenant adds any machinery appliances,
or equipment (other than ordinary business equipment, e.g., faxes, copiers and
desk top computers), the Base Rent herein reserved shall be equitably adjusted
to reflect the resulting increase but at no less than Owner's cost therefor and
the amount set forth in Paragraph 52.1 hereof shall also be adjusted
accordingly. If Owner and Tenant cannot agree thereon, the amounts of such
adjustments shall be determined based on standard practices, by an independent
electrical engineer, to be selected by Owner and paid by Owner. When the amounts
of such adjustment are so determined, the parties shall execute an agreement
supplementary hereto to reflect such adjustments in the amount of the Annual
Rent stated in this Lease and in the amount set forth in Paragraph 52.1 hereof
effective from the date of the increase or decrease of such usage as determined
by such electrical engineer, or as the case may be, from the effective date of
such increase or decrease in the public utility rate schedule; but such
adjustments shall be effective from the commencement date of the Lease or the
date of the survey, whichever is applicable whether or not such a supplementary
agreement is executed.
52.4. Owner reserves the right to discontinue furnishing electric
energy to Tenant in the Demised Premises at any time upon sixty (60) days prior
written notice to Tenant for Tenant to arrange to obtain electric service from
the public utility company furnishing electric service from the building.
However, Owner shall not discontinue electric service to the Premises unless and
until Tenant secures same from the public utility; provided that Tenant proceeds
with diligence to obtain such electric service following Owner's notice. If
Owner exercises such right of termination, this Lease shall continue in full
force and effect and shall be unaffected thereby except only that, from and
after the effective date of such termination, Owner shall not be obligated to
furnish electric energy to Tenant and the Additional Rent payable under this
Article shall be accordingly reduced by such amount then payable by Tenant under
this Article per annum. If Owner so discontinues furnishing electric energy to
Tenant, Tenant shall arrange to obtain electric energy directly from the public
utility company furnishing electric service to the Building. Such electric
energy may be furnished to Tenant by means of the then existing building system
feeders, risers, and wiring to the extent that the same are available, suitable,
and safe for such purposes. All meters and additional panel boards, feeders,
risers, wiring, and other conductors and equipment which may be required to
obtain electric energy directly from such public utility company shall be
installed and maintained by Owner at its expense.
52.5. If any sales tax is imposed upon Landlord with respect to
electrical energy furnished as a service to Tenant by any Federal, State, or
Municipal Authority, Tenant covenants and agrees that where permitted by law or
applicable regulations, Tenant's pro-rata share of such sales taxes shall be
reimbursed by Tenant to Landlord.
52.6 Owner shall have the right to procure periodic surveys made by
an independent utility consultant selected by Owner (the cost of which shall be
shared equally by Landlord and Tenant) and if such utility consultant determines
that there has been an increase in Tenant's use of electrical current or
additional equipment or machinery have been installed within the Demised
Premises then the provisions of Paragraph 52.3 shall be applicable in accordance
with the terms thereof. In the event that either a survey by Landlord or a
reading of the Checkmeter indicates that the Electric Charge then being paid by
Tenant is not sufficient for Tenant's electrical usage, Landlord will forward to
Tenant a statement showing Additional Rent due as a result of such comparison
over the amount then payable, and Tenant shall pay to Landlord the full amount
of such deficiency within fifteen (15) days after the rendition of such
Landlord's statement. Thereafter, the monthly Electric Charge payable by Tenant
shall be that charge indicated in the aforesaid Landlord's statement.
52.7 If Tenant shall require electricity beyond the normal business
hours specified above or for purposes other than as specified in this Article,
the Additional Rent charge shall be adjusted to reflect the resulting increases
in Landlord's cost in providing electricity to the Demised Premises, and the
electric factor shall also be adjusted accordingly. Tenant has reviewed the
electrical capacity available to the Demised Premises and represents to and for
the benefit of Landlord that it is satisfied therewith.
52.8 Except as otherwise provided for in this Lease, Landlord shall
not in any way be liable or responsible to Tenant for any loss, damage or
expense which Tenant may sustain or incur if: (i) the supply of electricity to
the Demised Premises is interrupted; (ii) the quantity or character of
electricity is changed or is no longer
- 32 -
available or suitable for Tenant's requirements; or (iii) Tenant objects to, is
inconvenienced by or otherwise affected by any requirement of the public utility
company serving the Building. Tenant will comply with the general rules,
regulations, terms, conditions and requirements of the public utility supplying
electricity to the Building that may now or hereafter be applicable thereto.
Tenant shall enter into such modifications of this Lease as Landlord may from
time to time request in connection with any requirement of any public utility or
any requirement of law pertaining to electrical consumption or service, or
charges therefor. If any equipment or machinery furnished by Landlord break down
or for any cause cease to function properly, Landlord shall use reasonable
diligence to repair same promptly, but Tenant shall have no claim for abatement
of Base Rent or Additional Rent or damages for any interruptions in service
occasioned thereby or resulting therefrom. Subject to the terms and provisions
of Article 5.9 of this Lease, if Landlord fails to use the aforesaid reasonable
diligence and a material interruption in service continues for twenty (20)
business days after written notice from Tenant to Landlord detailing the
interruption in service, then Base Rent and Additional Rent shall be abated
thereafter until such material interruption in service is cured by Landlord.
52.9 Notwithstanding anything to the contrary contained in this
Article 52, in the event, subsequent to the survey(s) referred to herein, Tenant
is not reasonably satisfied with the results thereof, Tenant shall notify
Landlord of same in writing, including the basis for Tenant's objection(s)
("Tenant's Disapproval Notice") within five (5) business days of its receipt of
the results of the survey. Within seven (7) business days of Landlord's receipt
of Tenant's Disapproval Notice, Landlord shall either (i) accept the those items
specified by Tenant in Tenant's Disapproval Notice or (ii) object to Tenant in
writing, specifying the reason(s) Landlord objects to Tenant's Disapproval
Notice. If Landlord objects to Tenant's Disapproval Notice, Landlord and Tenant
shall meet within five (5) business days thereafter in an attempt to resolve the
outstanding items within Tenant's Disapproval Notice, and if Landlord and Tenant
cannot agree thereon at such meeting, the revised Electric Charge Date shall be
decided by arbitration before the American Arbitration Association.
53. Intentionally Deleted
54. Tenant's Work. This Article 54 shall not apply to any work performed
by Landlord pursuant to Exhibit E hereof.
A. Prior to Tenant's commencing any work pursuant to this Article or any
structural work or work relating to the building's systems in the Demised
Premises, Tenant shall submit to Landlord for Landlord's written approval, which
approval shall not be unreasonably withheld or delayed, drawings, plans and
specifications including, but not limited to, plans for the entranceways, use of
window areas, signage and other architectural plans (herein collectively
referred to as "Tenant's Plan") for or in connection with the improvements,
installations, additions, alterations and decorations to be made by Tenant
(herein collectively referred to as "Tenants Work"). Tenant shall also submit to
Landlord for its written approval a list of contractors, subcontractors, and
copies of contracts and subcontracts for Tenant's Work ("Tenant's Contracts").
Tenant's Plan shall be fully detailed, shall show complete dimensions, shall not
require any changes in the structure of the building and shall not be in
violation of any laws, orders, rules or regulations of any governmental
department or bureau having jurisdiction of the Demised Premises. Landlord's
consent shall not be required for decorative or non-structural work of Tenant
(other than wallpaper or paneling or non-structural work which by applicable law
requires a permit) costing less than $25,000.00 in the aggregate, which does not
affect any Building systems or structure of the Building [unless the paint used
is a color other than white or off-white], however, Landlord must receive no
less than three (3) business days written notice of said decorative work along
with proper certificates of insurance from the contractor).
B. Within ten (10) business days after submission to Landlord of Tenant's
Plan and Tenant's Contracts, Landlord shall either approve same or shall set
forth in writing the particulars in which Landlord does not approve same, in
which latter case Tenant shall, within ten (10) business days after Landlord's
notification, return to Landlord appropriate corrections thereto. Such
corrections shall be subject to Landlord's approval. Tenant shall pay to
Landlord, promptly upon being billed, any reasonable charges or expenses
Landlord may incur in reviewing Tenant's Plan and Tenant's Contracts and/or
insuring compliance therewith.
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C. Tenant further agrees that Tenant shall not make any changes (except to
a deminimus extent) in Tenant's Plan or Tenant's Contracts subsequent to
approval by Landlord unless Landlord consents to such changes which consent
shall not be unreasonably withheld, delayed or conditioned. Tenant shall pay to
Landlord all costs and expenses caused by such changes which Landlord may incur
or sustain in Landlord's Work (if any) or in the performance by Landlord of any
construction or work it is performing in the Building; Landlord shall have the
right to refuse to consent to any such changes if in the reasonable judgment of
Landlord or Landlord's Architect (defined below) such changes materially deviate
from Tenant's Plan theretofore approved by Landlord in a manner that will
adversely affect the structural integrity of the Building or the proper
functioning of any Building systems or otherwise violate the terms of this
Lease. Any charges payable under this Section C or the preceding Section B shall
be paid by Tenant from time to time within twenty (20) days following as
Additional Rent, whether or not the Rent Commencement Date has occurred.
D. Following compliance by Tenant with its obligations under the foregoing
Sections and approval of Tenant's Plan and Tenant's Contracts by Landlord,
Tenant shall commence Tenant's Work and it shall proceed diligently with same,
in order to complete same within a reasonable period of time using new first
class materials and in a good and workmanlike manner.
E. Tenant agrees that in the performance of Tenant's Work (a) neither
Tenant nor its agents or employees shall interfere with the work being done by
Landlord and its contractors, agents and employees, (b) that Tenant shall comply
with any reasonable work schedule, rules and regulations proposed by Landlord,
its agents, contractors or employees, (c) that the labor employed by Tenant
shall be harmonious and compatible with the labor employed by Landlord in the
Building, it being agreed that if in Landlord's judgment the labor is
incompatible Tenant shall forthwith upon Landlord's demand withdraw such labor
from the premises, (d) that prior to commencing Tenant's Work, Tenant shall
procure and deliver to Landlord worker's compensation, public liability,
property damage and such other insurance policies, in such amounts as shall be
reasonably acceptable to Landlord in connection with Tenant's Work, and shall
upon Landlord's request cause Landlord, its managing agent, and any holder of a
Superior Mortgage and lessor under a Superior Lease to be named as an additional
insured thereunder, (e) that prior to commencing Tenant's work, Tenant shall
obtain the necessary consents, authorizations and licenses from municipal or any
other government authorities having jurisdiction of the Building or premises
necessary for Tenant's operations, improvements and alterations and that no work
shall be started or equipment installed unless and until all necessary consents,
authorizations and licenses shall have been obtained by Tenant and by Tenant's
contractors, (f) that Tenant shall hold Landlord harmless from and against any
and all claims arising from or in connection with any act or omission of Tenant
or its agents, contractors and employees, (g) that Tenant's Work shall be
performed in accordance with the approved Tenant's Plan and in compliance with
the laws, orders, rules and regulations of any governmental department or bureau
having jurisdiction of the Demised Premises and Tenant immediately shall correct
at Tenant's sole cost and expense any nonconforming work, (h) that Tenant
promptly shall pay for Tenant's Work in full, to the extent payable under any
contract with respect to Tenant's Work between Tenant and any third party
hereunder, and to the extent that such payment is not the responsibility of
landlord, and, at Landlord's option, that Tenant shall provide for the removal
and/or bonding of any lien to attach to the Demised Premises or the Land and/or
Building.
F. In the event that the "hard" cost of Tenant's Work shall exceed
$50,000.00, in addition to complying with all other provisions hereof, Tenant
shall (a) furnish Landlord with a contract in assignable form made with a
reputable and responsible contractor, providing for the completion of all work,
labor and materials necessary to complete Tenant's Work in accordance with
Tenant's Plan; and (b) furnish Landlord with an assignment of the contract so
furnished, duly executed and acknowledged by Tenant, by its terms to be
effective upon any termination of this Lease or upon Landlord's re-entry upon
the Demised Premises following a default by Tenant beyond applicable notice and
grace periods prior to the complete performance of such contract, such
assignment also to include the benefit of all payments made on account of said
contract including payments made prior to the effective date of such assignment.
G. Landlord may, at any time and from time to time, at Tenant's reasonable
expense, in addition to any other right of access given to Landlord pursuant to
the terms of this Lease, enter upon the Demised Premises with one or more
engineers and/or architects of Landlord's selection (collectively, "Landlord's
Architect") to determine the course and degree of completion of Tenant's Work
and its compliance with Tenant's Plan and the terms and conditions of this
Lease.
- 34 -
H. Notwithstanding anything to the contrary contained in the foregoing, if
there are presently any asbestos ("Hazardous Material") in the Premises which
are in violation of any applicable law, rule or regulation, Landlord shall
remove, at its sole cost and expense, said Hazardous Material(s) or take such
steps to make the Hazardous Material(s) comply with all applicable laws, rules
or regulations and other requirements relating to any Hazardous Materials, which
are imposed by any governmental authority ("Requirements") as of Commencement
Date #1 and Commencement Date #2 (as the case may be). Supplementing the above,
Tenant shall be obligated, at Tenant's own cost and expense, to comply with
Requirements relating to Hazardous Material(s) which are hereafter imposed by
any governmental authority, insofar as the same affect the Demised Premises.
Tenant further agrees, however, that in addition to its other obligations set
forth herein relating to Hazardous Materials(s), if any, in the Demised
Premises, in the event any Tenant's Work causes or results in said Hazardous
Materials(s) to be in violation of an applicable law, rule or regulation, Tenant
shall immediately remove, at its sole cost and expense, said Hazardous
Materials(s) or take such steps to make the Hazardous Materials(s) comply with
the applicable law, rule or regulation.
I. Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to subject
Landlord's interest or estate to any liability under any mechanics's or other
lien law. If any mechanic's or other lien or any notice of intention to file a
lien is filed against the Premises or any part thereof, for any work, labor,
services or materials claimed to have been performed or furnished for or on
behalf of Tenant or anyone holding any part of the Premises through or under
Tenant, Tenant shall cause the same to be canceled and discharged of record by
payment, bond or order of a court of competent jurisdiction within thirty (30)
days after notice by Landlord to Tenant.
J. Tenant covenants and agrees that it shall make improvements and
alterations to the Demised Premises as set forth below. Tenant acknowledges that
Tenant's agreements as herein set forth constitute a substantial obligation of
Tenant and a material inducement for Landlord to enter into this Lease and but
for this inducement Landlord would not enter into this Lease. A breach of this
covenant shall be deemed a material default under the Lease. Accordingly, Tenant
shall, subject to Landlord's approval as required under this Article, perform
the following work to the Demised Premises:
Tenant shall reinforce the floor load capacity of any area of the Demised
Premises which contains telecommunications equipment of Tenant not supported by
the fifty (50) pound per square foot floor load of the Premises
("Reinforcement") at Tenant's own cost and expense. Tenant shall give Landlord
no less than ten (10) business days prior written notice of the Reinforcement
with copies of proposed plans for Landlord's approval, which shall not be
unreasonably withheld or delayed. As-built plans shall be submitted to Landlord
by Tenant upon the completion of the Reinforcement. The Reinforcement shall not
interfere with the use of the Building by other tenants and shall be done at
times other than Regular Business Hours.
K. Without in any manner whatsoever limiting the terms and provisions of
this Article, Tenant herein must supply copies of the following items and comply
with all proper codes which compliance shall include but not be limited to:
1. Architectural and mechanical plans are reviewed for compliance
with Building Standard and Newark Building Code.
2. Insertion of appropriate standard Building Department notes
and details.
3. Certification by a professional engineer as to compliance with
the Building Code.
4. Filing plans and specifications with the Department of
Buildings and processing to approval.
5. Making controlled inspection of air conditioning system,
complete inspection of entire installation and filing any
applicable forms indicating proper completion of said
installation with the Department of Buildings. Tenant shall
obtain final approval from any required governmental agency,
an approved Certificate of Completion ("Completion
Certificate"), to be filed by Tenant with the Department of
Buildings.
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A Tenant installation will not be considered complete until an approved
Completion Certificate is filed with the Department of Buildings.
L. Subsequent to the delivery of Premises # 1 to Tenant as provided for in
this Lease, Tenant may commence to perform Tenant's Work to Premises #1, on the
condition that when such work is performed it is done (i) in accordance with
this Article 54, (ii) in accordance with the rules and regulations of the
Building and (iii) so as to not interfere with the performance of the Tenant
Improvements or Landlord's Work referred to in Exhibit "E".
55. Cleaning.
A. Tenant shall clean Premises #1 at Tenant's sole cost and expense.
Tenant shall be allowed to select its own cleaning contractor, who shall be
reasonably satisfactory to Landlord, and develop its own cleaning specifications
with rubbish removal to be included in its specifications. Tenant agrees that
Tenant's cleaning contractor shall maintain liability insurance at a level
consistent with the industry and that said policy shall name Landlord and
Landlord's Managing Agent as additional insureds.
B. Supplementing Landlord's obligations to clean Premises #2
pursuant to Article 5.1 of this Lease, the entire Demised Premises, including
the interior of the windows, are to be kept neat by Tenant, at its sole cost and
expense, in a manner reasonably satisfactory to Landlord. Tenant agrees that it
will independently contract for the removal of all rubbish, refuse, garbage and
waste from the Demised Premises other than ordinary quantities thereof. The
removal of such rubbish, refuse, garbage and waste shall be subject to such
rules and regulation as, in the reasonable judgment of Landlord, are necessary
for the proper operation of the Building, provided the same are uniform, and
nondiscriminatory. Tenant further agrees not to permit the accumulation (unless
in concealed metal or plastic containers) of any rubbish or garbage in, on or
about any part of the Demised Premises and not to permit any garbage or rubbish
to be stored, collected or disposed of from the Demised Premises except only
during the hours from 7:00 p.m. to 6:00 a.m. All of Tenant's garbage and refuse
shall be stored in a designated storage area within the Demised Premises. Tenant
shall not encumber or obstruct, or permit to be encumbered or obstructed, the
street and sidewalk adjacent to or abutting upon the Demised Premises.
C. As an essential inducement to Landlord to enter into this Lease,
Tenant agrees that no supplies or deliveries, nor any of Tenant's refuse or
rubbish, shall be kept or permitted to be kept in any area outside of the
Demised Premises. Tenant acknowledges that no other portion of the Building, of
which the Demised Premises are a part, is included within the Demised Premises
and Tenant shall have no right to utilize the same for any purposes whatsoever.
D. Tenant covenants that Tenant shall, at is own cost and expense,
diligently keep the Demised Premises free and clear of any odor, rats, mice,
insects and other vermin. In furtherance thereof, Tenant shall employ an
exterminator on a monthly basis, among others, who will utilize the best
prevailing method for the prevention of any odor from any source, or
infestation, by and extermination of, said animals and insects. If, in
Landlord's reasonable judgment, Tenant shall fail to satisfactorily carry out
the provisions of this paragraph, Landlord may, but shall not be obligated to,
employ an exterminator or other service, and the cost and expense incurred by
Landlord for such exterminator or other service shall be repaid to Landlord by
Tenant, on demand, and such amounts so repayable shall be considered as
Additional Rent.
E. Tenant, at its own cost and expense, shall install and maintain
all equipment and appliances as may be required by, and otherwise fully comply
with, all applicable governmental codes and regulations (including, but not
limited to, the Newark City Fire Department, the New Jersey Board of Fire
Underwriters and Fire Insurance Rating Organization) and as required by
Landlord's insurers, including but not limited to fire extinguisher appliances
and systems except that nothing contained herein shall require Tenant to make
structural changes to the Demised Premises unless such changes are required as a
result of Tenant's use (as opposed to Tenant's permitted use), manner of use of
the Demised Premises or changes made to the premises by Tenant.
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F. Landlord represents that the air-conditioning (if any) in the
Demised Premises is in working order on Commencement Date #1 or Commencement
Date #2 (as the case may be) and, thereafter, Landlord, at its sole cost and
expense, shall maintain and repair the air-conditioning unit in the Demised
Premises. Notwithstanding anything to the contrary contained in the foregoing,
Tenant shall procure, in a prompt and diligent manner at its sole cost and
expense, a service contract for any supplemental unit installed in the Premises
by Tenant, and supply a copy of same to Landlord and its managing agent. In
addition, Tenant acknowledges and agrees that all unit(s) within the Premises
(whether now existing or hereinafter installed by either party) are the property
of Landlord, and shall remain at the Demised Premises upon the termination of
this Lease.
56. Guaranty. Intentionally Deleted.
57. Landlord's Managing Agent. Tenant agrees that all of the
representations, warranties, waivers and indemnities made in this Lease by
Tenant for the benefit of Landlord shall also be deemed to inure and to be for
the benefit of CRG Management, LLC, its officers, directors, employees and
independent contractors.
58. Cancellation. As long as this Lease is in full force and effect and
the Tenant is in actual occupancy of not less than one hundred (100%) percent of
the Demised Premises (i.e., there are no subtenants or assignees), Tenant shall
have the one (1) time right, to be exercised by an unconditional and unequivocal
written notice (the "Election Notice") received by Landlord not later than the
date which is nine (9) months prior to the seventh (7th) anniversary of
Commencement Date #2 to elect to terminate and cancel the remaining term of this
Lease to the Demised Premises effective on the seventh (7th) anniversary of the
Lease ("Cancellation Date"). Once exercised, the Cancellation Date shall be
deemed to be the Expiration Date as if same were originally set forth herein.
The Election Notice shall expressly refer to this Article of this Lease. In
order for the Election Notice to be effective, Tenant shall continue to pay, in
a timely manner, all Base Rent and Additional Rent to the Landlord through the
Cancellation Date. In addition to the foregoing, in order for the Election
Notice to be effective, Tenant shall, no less than six (6) months prior to the
Cancellation Date, submit a check to Landlord, representing Landlord's
unamortized costs of (i) brokerage commissions, (ii) all free rent concessions,
(iii) Tenant Improvement Costs, including the "Premises #1 Improvement
Allowance" and the Office Improvement Allowance, as defined in Exhibit "E"
annexed hereto, (iv) Landlord's Work, as defined in Exhibit "E", (v) Landlord's
reasonable legal fees incurred in connection with this Lease, (vi) the
Additional Space Improvement Allowance as defined in Article 61 hereinafter and
(vii) any other work or contribution made by Landlord pursuant to Article 61
hereinafter. In the event the Tenant shall elect not to terminate this Lease as
provided for in this Article, all the terms, covenants, and conditions of this
Lease shall remain in effect and unmodified.
59. Option to Renew. A. If Tenant is in actual occupancy of the Premises
(i.e., Tenant has not assigned this Lease [other than to an affiliate,
subsidiary or parent of Tenant] or sublet any portion greater than fifty percent
[50%] of the Premises other than to an affiliate, subsidiary or parent of
Tenant), and if immediately prior to the expiration of the term of the Lease,
said Lease shall be in full force and effect and Tenant is not in default under
any of the provisions contained herein (beyond all applicable notice and grace
periods) and further provided Tenant, not less than one (1) year prior to the
expiration of the initial Lease term, shall have given Landlord written notice
of the election of Tenant to accept a renewal of the Lease, then Landlord shall
grant to Tenant and Tenant shall accept a renewal of the Lease. Said renewal
shall be for a further term of five (5) years from the date of expiration of the
term ("Renewal Term") and shall be on the same covenants, agreements, terms and
provisions as provided for in this Lease Agreement, including the payment of
Additional Rent, except that the Base Rent for the Renewal Term shall be fixed
by agreement not later than four (4) months prior to the date on which the first
monthly installment of such Base Rent shall first become payable or, if Landlord
and Tenant cannot agree by that time, then by arbitration pursuant to the
provisions of Article 60 hereof at 100% of the then fair market value ("Renewal
FMV") of the Demised Premises for the Renewal Term exclusive of fixtures,
equipment and improvements installed or erected by or on behalf of Tenant, but
not less than Tenant's then net effective rental (Base Rent plus escalations as
provided for in Articles 1.15 and 4 and of this Lease, annualized) as of the
expiration date of the First Renewal Term. If the Base Rent for the Renewal Term
shall not have been fixed on or prior to the date the same shall first become
payable, Tenant shall pay an interim rental at the rental rate last in effect
until the arbitration shall have been completed, after which Landlord and Tenant
shall make appropriate adjustment of such interim rent, such adjustment to be as
of the commencement date of the Renewal Term. In the event that Renewal FMV is
applied, Tenant shall receive a new Base Tax Year, which shall be the
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calendar tax year starting January 1, 2010 and ending December 31, 2010
(however, the provisions of Article 4F shall not apply) and the Base Rent shall
increase annually as provided for in Article 1.15 of this Lease.
60. Arbitration. The party desiring arbitration as provided in Article 59
hereof shall give written notice to that effect to the other party, specifying
in said notice the name and address of the person designated to act as
arbitrator on its behalf. Within fifteen (15) days after the service of such
notice, the other party shall give written notice to the first party, specifying
the name and address of the person designated to act as arbitrator on its
behalf. Each arbitrator chosen pursuant to this Article 60 shall be a member of
the American Institute of Real Estate Appraisers, and shall have at least ten
(10) years of real estate appraisal experience within the City of Newark. The
arbitrators so chosen shall meet within ten (10) days after the second
arbitrator is appointed, and if, within thirty (30) days after the second
arbitrator is appointed, said arbitrators shall not agree upon the question in
dispute, they shall each set forth their determination of Renewal FMV and
themselves appoint a third arbitrator; and in the event of their being unable to
agree upon such appointment within ten (10) days after the time aforesaid, the
third arbitrator shall be selected by the parties themselves if they can agree
thereon with a further period of fifteen (15) days. If the parties do not so
agree, then either party, on notice to the other, may request such appointment
by the then President of the Real Estate Board of Newark (or its equivalent or
any organization successor thereto), or in his absence, failure, refusal or
inability to act, then either party, on notice to the other, may apply to the
Superior Court in the County of Essex for the appointment of such third
arbitrator and the other party shall not raise any question as to the Court's
full power and jurisdiction to entertain the application and make the
appointment. The third arbitrator shall determine the Renewal FMV by selecting
the Renewal FMV proposed by one of the other arbitrators, and such shall be the
Renewal FMV. The decision of the arbitrator so chosen shall be given within a
period of thirty (30) days after the appointment of such third arbitrator.
61. Right of First Refusal. At any time during the period beginning with
Commencement Date #1, provided that this Lease shall be in full force and effect
and Tenant not in default under any of the provisions contained herein (beyond
all applicable notice and grace periods), Landlord agrees to give Tenant written
notice of any offer ("Expansion Notice") Landlord may receive for the leasing of
the contiguous space on the tenth (10th) floor of the Building ("Additional
Space"). Tenant, within five (5) business days of the delivery of said notice
(time being of the essence), shall notify the Landlord whether it wishes to
lease the Additional Space. The term of the Lease for the Additional Space shall
be for the remaining term of this Lease, on the same covenants, agreements,
terms and provisions as provided for in this Lease Agreement, including the
payment of Additional Rent, except that:
(i) Tenant acknowledges that it shall be taking the Additional Space "as
is", but for Landlord (a) abating any asbestos within the Additional Space in
accordance with applicable law and (b) providing Tenant with either, at
Landlord's sole option (1) an improvement allowance of $35.00 per square foot
for the Additional Space to improve the Additional Space with Landlord having no
responsibility to delivering a central HVAC system, ductwork and control wiring
for the Additional Space, which shall be Tenant's sole responsibility to provide
and install or (2) an improvement allowance of $30.00 per square foot for the
Additional Space to improve the Additional Space with Landlord having the
responsibility to delivering a central HVAC system (exclusive of ductwork and
control wiring, which shall be provided by Landlord but included in the
Additional Space Improvement Allowance). Regardless of which option Landlord
exercises, the foregoing contribution shall be referred to as the Additional
Space Improvement Allowance, and same shall be paid to Tenant in the same manner
as the Premises #1 Improvement Allowance (as hereinafter defined) is paid to
Tenant pursuant to Exhibit E. Notwithstanding anything to the contrary contained
in the foregoing, the Additional Space Improvement Allowance for the Additional
Space shall be reduced pro-rata for each and every day that the commencement
date of the term for the Additional Space begins beyond Commencement Date #2;
(ii) the Base Rent for the Additional Space shall be the Base Rent then
payable (on a per square foot basis) for Premises #2, subject to and including
all adjustments and escalations as provided for in this Lease; and
(iii) provided Tenant is not in monetary or material nonmonetary default
under the terms, covenants and conditions of this Lease (beyond the expiration
of any applicable notice and cure period) Tenant shall have the right to use and
occupy the Additional Space free of Base Rent, for a period beginning with the
commencement date of the term for the Additional Space through and including the
following four (4) months thereafter (the "Additional Space Free Rent Period")
[but Tenant shall pay all Additional Rent and any direct charges attributable to
the Additional Space during the Additional Space Free Rent Period].
Notwithstanding anything to the contrary contained in the foregoing
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sentence, the Additional Space Free Rent Period shall be reduced pro-rata for
each and every day that the commencement date of the term for the Additional
Space begins beyond Commencement Date #2.
In the event Tenant so elects, Landlord and Tenant shall immediately
thereafter enter into an amendment of this Lease to reflect the expansion of the
Premises to include the Additional Space. Tenant acknowledges and agrees that in
the event Tenant elects to not lease the Additional Space as provided for
herein, Tenant shall thereafter waive any and all future rights to receive an
Expansion Notice to lease the Additional Space.
If, at any time during the period beginning with Commencement Date
#1 through and including eighteen (18) months thereafter, and provided that this
Lease shall be in full force and effect and Tenant is not in default under any
of the provisions contained herein (beyond all applicable notice and grace
periods), Landlord agrees to give Tenant written notice of any bona-fide offer
("Fifth [5th] Floor Expansion Notice") Landlord may receive for the leasing of
the availability of space on the fifth (5th) floor of the Building ("Additional
Expansion Space"). Tenant, within five (5) business days of the delivery of said
notice (time being of the essence), shall notify the Landlord whether it wishes
to lease the Additional Expansion Space pursuant to the terms and provisions of
this Article. The term of the Lease for the Additional Expansion Space shall be
for the remaining term of this Lease and on the same covenants, agreements,
terms and provisions as provided for in the this Lease Agreement and the Fifth
[5th] Floor Expansion Notice, except as otherwise provided for herein.
Notwithstanding anything to the contrary contained in the foregoing, in no event
shall the Base Rent payable by Tenant for the Additional Expansion Space be less
than the greater of the (i) Base Rent then payable (on a per square foot basis)
for Premises #2, subject to and including all adjustments and escalations as
provided for in this Lease and (ii) the then fair market value for the
Additional Expansion Space. As to any free rent concession or Landlord
contribution to build-out the Additional Expansion Space, Landlord and Tenant
agree Tenant shall not receive any amount in excess of that provided to Tenant
under this Lease on a per square foot basis. If Landlord and Tenant cannot agree
within the five (5) day period as to the fair market value, then same shall be
decided by arbitration pursuant to the provisions of Article 60 hereof at 100%
of the then fair market value ("Renewal FMV") of the Demised Premises for the
Renewal Term exclusive of fixtures, equipment and improvements installed or
erected by or on behalf of Tenant, but not less than Tenant's then net effective
rental (Base Rent plus escalations as provided for in Articles 1.15 and 4 of
this Lease, annualized) as of the expiration date of the First Renewal Term.
62. Generator. Landlord currently intends to erect a "generator farm"
("Farm"), at a location on or adjacent to the Building's loading dock, for the
housing of tenant generators. Tenant acknowledges and agrees that the erection
of the Farm is not an obligation of Landlord under this Lease and Tenant shall
have no rights under this Lease, at law or in equity, to compel Landlord to
erect such Farm. In the event that Landlord erects such Farm, Landlord shall (i)
construct a steel structure (or other type of structure) on which a generator of
up to 750 KVA can be installed ("Generator") and (ii) install a diesel fuel tank
and ancillary equipment (to be used, if possible, in common with other
generators located in the Farm) in a concrete vault with sufficient capacity to
supply fuel for up to twenty-three (23) hours of operation (subject however, to
Tenant's load requirement) and which shall be metered to measure Tenant's
individual usage. In addition, Tenant shall pay to Landlord, within ten (10)
days of Landlord's written request therefor accompanied by supporting invoices,
(i) the cost for the tank and all costs associated with installation thereof and
(ii) Tenant's pro-rata share of the total cost of the steel (or other)
structure, including any installation costs relating thereto. In no event shall
Tenant's installation costs under this Section 62 exceed $62,500.00. In addition
to Tenant being responsible for any fuel usage and the aforesaid installation
costs, Tenant shall be charged a fee of $1 500.00 per month, as Additional Rent,
for use of the Farm. Under the supervision of Landlord and at Tenant's sole cost
and expense, Tenant shall (i) complete the installation of the Generator and
(ii) the connection of the electricity from the Generator to the Premises in
accordance with all of the provisions of Article 54 herein, the plans and
specifications therefor approved by Landlord and any other reasonable rules and
regulations of the Building. Tenant shall also be responsible for the cost of
the installation, service, repair, replacement and maintenance of the Generator
and related equipment, cabling, conduits, wire and transfer switches and for any
repair or damage caused by the Generator or by Tenant or any of its employees,
agents, contractors or invitees, and the Generator shall be treated as if the
Generator were part of Tenant's personal property located within the Premises.
Without limiting the generality of the foregoing, all provisions of this Lease
with respect to Tenant's alterations and Tenant's obligations to comply with
laws and insurance requirements, maintaining insurance, indemnifying Landlord
and performing repairs and maintenance shall apply to Tenant's installation, use
and maintenance of the Generator. Tenant shall maintain the Generator in good
order and repair and Tenant, its employees, agents and contractors shall have
access to the Farm for the purposes
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of installation, maintenance and repair of Tenant's Generator at reasonable
times, which times (except in the case of emergency) shall be arranged in
advance with Landlord. Landlord or its representatives may accompany Tenant
whenever Tenant, its employees, agents or contractors enter the Farm.
Notwithstanding the foregoing to the contrary, Tenant's right to install,
operate and maintain the Generator shall be subject to (i) Landlord's
construction of such Farm and (ii) Tenant obtaining all necessary governmental
permits and approvals required for the installation and operation of the
Generator, including, without limitation, all federal, state and local permits
and approvals, which permits and approvals shall remain in effect at all times
that the Generator is located in the Farm. Landlord shall have the right to, or
to require Tenant to, move the Generator to another location designated by
Landlord or to cease the operation of the Generator by Landlord and to remove
same if the Generator shall be in violation of applicable law or shall interfere
with the use and operation of other facilities. Tenant acknowledges that any
testing of the Generator shall only take place after normal business hours of
the Building.
63. Satellite Dish. Subject to all applicable federal, state and local
laws, and as well as the rules of any governmental or quasi-governmental agency
or authority, Tenant shall have the non-exclusive right, at its sole cost and
expense, to install, service, maintain and replace during the term of the Lease
one (1) eighteen inch (18") satellite dish (the "Antenna") for their use and not
for use by any other party. Said antenna must be located on a setback of the
Building (to be determined by Landlord) and not on the roof of the Building.
Prior to any such installation, Tenant shall deliver to Landlord for its review
and approval, which approval shall not be unreasonably withheld or delayed, a
set of scaled and dimensioned plans and specifications for the Antenna, which
shall include, without limitation, the location of the Antenna, the floor and
power load requirements of the Antenna, and the location and kind of electrical
or other services to and from the Antenna and detailed specifications of the
means of attaching the Antenna. In installing the Antenna, Tenant shall not be
permitted to penetrate the setback, but shall be permitted to anchor the Antenna
to the setback using concrete blocks or other weights, subject to the setback
load requirements. Wiring for the Antenna shall be through existing sleeve
installed in the Building by Landlord (if any). In the event there are no
sleeves, Tenant shall install same, at its own cost and expense. Tenant agrees
that the Antenna shall not be suffered or permitted to materially interfere with
the use and operation of other facilities or equipment now or hereafter located
on or in the Building and Landlord shall not be liable for interference with the
use and operation of the Antenna by reason of the existence and operation of
other satellite antennae or antennae or related equipment on or in the Building.
Tenant shall complete the installation of the Antenna in accordance with the
plans and specifications therefor approved by Landlord. The area in which Tenant
installs the Antenna shall be treated for all purposes of this Lease relating to
Tenant's obligations and liabilities as if the same were part of the Premises
(except that Tenant shall not be required to pay rent therefor). Tenant shall be
responsible for the cost of the installation, service, repair, replacement and
maintenance of the Antennae and related equipment and cabling and for any repair
or damage caused by the Antenna or by Tenant or any of its employees, agents,
contractors or invitees, and the Antenna shall be treated as if the Antenna were
part of Tenant's personal property located within the Premises. Without limiting
the generality of the foregoing, all provisions of this Lease with respect to
Tenant's alterations and Tenant's obligations to comply with laws and insurance
requirements, maintaining insurance, indemnifying Landlord and performing
repairs and maintenance shall apply to Tenant's installation, use and
maintenance of the Antenna. Upon termination of this Lease, Tenant shall, at its
own cost and expense, remove the Antenna and related equipment and cabling and
repair any damage caused thereby. All electricity used in connection with the
Antenna shall be metered, for which Tenant shall install and pay for the
necessary meters and for the cost of electricity consumed. Tenant shall maintain
the Antennae in good order and repair and Tenant, its employees, agents and
contractors shall have access to the setback for the purposes of installation,
maintenance and repair of Tenant's Antenna at reasonable times, which times
(except in the case of emergency) shall be arranged in advance with Landlord.
Landlord or its representatives may accompany Tenant whenever Tenant, its
employees, agents or contractors enter on the setback of the Building.
Notwithstanding the foregoing to the contrary, Tenant's right to install,
operate and maintain the Antenna shall be subject to Tenant obtaining all
necessary governmental permits and approvals required for the installation and
operation of the Antenna, including, without limitation, all federal, state and
local permits and approvals, which permits and approvals shall remain in effect
at all times that the Antenna is located on the setback of the Premises.
Landlord shall have the right to, or to require Tenant to, move the Antennae to
another location designated by Landlord or to cease the operation of the
Antennae by Landlord and to remove same if the Antennae shall be in violation of
applicable law or shall interfere with the use and operation of other facilities
or equipment now or hereafter located at or within the Building, without
liability to Tenant therefor.
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64. Letter of Credit: Amending and/or supplementing the provisions of
Articles 1.9, 3.1, 3.4 and 19.6 of the Lease:
In lieu of the cash security deposited with Landlord upon the
execution of this Lease, Tenant may at any time (provided Tenant is not in
default under this Lease beyond any applicable notice and cure period) deliver
to Landlord and shall, except as otherwise provided herein, maintain in effect
at all times during the term hereof, an irrevocable, self-renewing letter of
credit, in the form that follows hereinafter, in the amount of $325,000.00 (such
letter of credit is hereinafter referred to as a "Security Letter" or "Letter of
Credit"). The Security Letter shall issued by a banking corporation reasonably
satisfactory to Landlord and having its principal place of business or its duly
licensed branch or agency in either the (i) City and State of New York or (ii)
the City of Newark and State of New Jersey. The letter of credit shall: (i) be
clean, irrevocable, unconditional and non-negotiable, except by Landlord; (ii)
be for an initial term of not less than one (1) year; (iii) provide that
Landlord shall be entitled to draw upon the letter of credit upon presentation
of a sight draft; and (iv) provide that the letter of credit shall be deemed
automatically renewed, without amendment, for consecutive periods of one (1)
year, each year during the term of this Lease, and for a ninety (90) day period
thereafter unless the bank shall notify Landlord and Landlord's attorneys by
registered mail, return receipt requested, not less than thirty (30) days
preceding the then expiration date of the letter of credit, that the bank elects
not to renew such letter of credit, in which event Landlord shall have the
right, by sight draft presented to the bank, to receive the monies represented
by the then existing letter of credit and to hold and apply such proceeds in
accordance with the provisions hereof. In the event that Landlord uses, applies
or retains any portion of the proceeds of the letter of credit, Tenant shall
forthwith restore the amount so applied or retained in cash or by good certified
check so that, at all times (except as otherwise provided for in this Lease),
subject to the provisions herein set forth, the amount of the letter or credit
or cash security, as the case may be, shall be $325,000.00, or such other amount
as provided for hereinafter.
In the event Tenant defaults in the respect of any of the terms,
provisions, covenants and conditions of this Lease beyond applicable notice and
cure periods, including but not limited to, the payment of annual Base Rent,
Additional Rent and any Tenant surcharges, Landlord may use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any Annual Base Rent, Additional Rent or Tenant surcharges or any
other sum as to which Tenant is in default or for any sum which Landlord may
expend or may be required to expend by reason of Tenant's default in respect of
any of the terms, provisions, covenants, and conditions of this Lease,
including, but not limited to, any damages or deficiency accrued before or after
summary proceedings or other re-entry by Landlord. To insure that Landlord may
utilize the security represented by the Security Letter in the manner, for the
purposes and to the extent provided herein, each Security Letter shall provide
that the full amount thereof may be drawn down by Landlord upon the presentation
to the issuing bank of Landlord's draft drawn on the issuing bank accompanied by
the signed memorandum of Landlord indicating in substance the basis for
Landlord's charge against the security. A copy of such memorandum shall be
simultaneously furnished to Tenant; provided, however, that such memorandum as
so presented shall be absolutely binding and unconditional on said issuing bank.
Landlord's right to draw down under said Security Letter shall, upon such
presentation, also be absolute as against Tenant, provided Tenant has defaulted
in respect of any of the terms, provisions, covenants and conditions of this
Lease beyond applicable notice and cure periods.
In the event that Tenant defaults, after notice and the opportunity to
cure as provided for in the Lease, in the respect of any of the terms,
provisions, covenants and conditions of the Lease and Landlord utilizes all or
any part of the security represented by the cash security deposit or the
Security Letter but does not terminate this Lease as provided herein, Landlord
may in addition to exercising its rights as provided herein, retain the
un-applied and unused balance of the principal amount of the cash security
deposit or the Security Letter as security for the faithful performance and
observance by Tenant thereafter of the terms, provisions and conditions of this
Lease and may use, apply or retain the whole or any part of said balance to the
extent required for payment of annual Base Rent, Additional Rent or Tenant
surcharges, or any other sum as to which Tenant is in default or for any sum
which Landlord may expend or be required to expend by reason of Tenant's default
in respect to any of the terms, covenants, and conditions of this Lease. In the
event Landlord applies or retains any portion or all of the security delivered
hereunder, Tenant shall not only forthwith restore the amount so applied or
retained so that at all times the amount deposited shall not be less than the
security required by the first paragraph hereof or such adjusted amount as may
be set forth hereinafter,
- 41 -
but shall also immediately deposit with Landlord one (1) additional month of
security based upon the monthly installment of Base Rent then payable to
Landlord.
Except as otherwise provided for herein, provided Tenant shall not be in
default beyond applicable notice and cure periods, the security shall be
promptly returned to Tenant (along with any interest accrued on any cash portion
thereof) after the Lease Expiration Date and upon delivery of entire possession
of the Premises to Landlord as required under the Lease. In the event of an
assignment of the Lease or other transfer by Landlord, Landlord shall have the
right to transfer any interest it may have in the security to the assignee and
Landlord shall thereupon be released by Tenant from all liability for the return
of such security, provided such assignee assumes any responsibilities of
Landlord with respect to such security, and Tenant agrees to look solely to the
new Landlord for the return of said security; and it is agreed that the
provisions hereof shall apply to every transfer or assignment made of the
security to a new Landlord.
If at any time the issuer bank shall fail to honor the sight draft of
Landlord (or its successor-in-interest) on demand, or the issuer fails to remain
a member of the New York Clearing House Association or its assets shall become
less that $500 million, Landlord may demand of Tenant that Tenant replace such
letter of credit with its cash equivalent or with a letter of credit from a
commercial bank reasonably acceptable to Landlord, at Landlord's option, and
Tenant shall replace same within ten (10) business days thereafter.
Time is of the essence with respect to all the dates and time period
herein within which Tenant and any issuer of a letter of credit may pay and/or
perform. In the event Landlord improperly draws on the Letter of Credit, then
upon it being determined that such draw down was improper, Landlord shall
immediately pay Tenant the amount improperly drawn.
Notwithstanding anything to the contrary contained in this Lease, and
provided that (a) this Lease is in full force and effect and Tenant shall not
have been in monetary or material nonmonetary default of this Lease (beyond the
expiration of any applicable notice and cure period) and (b) Tenant shall have
made all payments of Base Rent and Additional Rent payable under the Lease in a
timely manner, then Tenant may provide to Landlord (and Landlord shall promptly
thereafter execute and deliver to Tenant, if necessary) such instruments and
authorizations as may be reasonably required by the issuer of the Security
Letter to reduce the face amount thereof by $125,000.00 to $200,000.00 as of the
third (3rd) anniversary of Commencement Date #2.
Notwithstanding anything to the contrary contained in this Lease, and
provided that (a) this Lease is in full force and effect and Tenant shall not
have been in monetary or material nonmonetary default of this Lease (beyond the
expiration of any applicable notice and cure period) and (b) Tenant shall have
made all payments of Base Rent and Additional Rent payable under the Lease in a
timely manner, then Tenant may provide to Landlord (and Landlord shall promptly
thereafter execute and deliver to Tenant, if necessary) such instruments and
authorizations, as may be reasonably required by the issuer of the Security
Letter to reduce the face amount thereof (assuming the amount thereof has
already been reduced as provided for in the preceding paragraph) by an
additional $100,000.00 to $100,000.00 as of the fifth (5th) anniversary of
Commencement Date #2.
For purposes of this Article 64, payments of Base Rent shall not be deemed
to have been made in a timely manner if such payments are made more than ten
(10) days after such payments become due and payable more than twice in any
twelve (12) month period.
FORM OF LETTER OF CREDIT REQUIRED
(See Exhibit "H" annexed hereto)
- 42 -
65. Other Definitions.
A. "Premises #1" shall mean the portion of the Premises which is to
be used as laboratory space, as more clearly described in Exhibit A
attached hereto.
B. "Premises #2" shall mean the portion of the Premises which is to
be used as general and administrative offices, as more clearly described
in Exhibit A attached hereto.
C. "Demised Premises" and "Premises" shall mean Premises #1 and
Premises #2, collectively.
Special Provisions. The special provisions attached hereto as Exhibit "D"
and incorporated herein by reference, if any, shall control if in conflict with
any of the foregoing provisions of this Lease.
SIGNED, SEALED AND DELIVERED as of the date first above written.
WITNESSES: TENANT:
________________________________ BROADVIEW NETWORKS HOLDINGS, INC.
Print name: By: /s/ Xxxxx Xxxxxxx
--------------------------------
Title: VP-Admin
--------------------------------
Tenant's Employer Identification Number: 00-0000000
Date Executed: 3/16/00
By the execution and delivery of this Lease, Tenant has made and shall be
deemed to have made a continuous and irrevocable offer to lease the Premises, on
the terms contained in this Lease, subject only to acceptance by Landlord (as
evidenced by Landlord's signature hereon), which Landlord may accept in its sole
and absolute discretion.
WITNESSES: LANDLORD:
________________________________ 744 XXXXX INVESTORS LLC
Print name:
By: 744 Broad Investors LLC, Managing Member
By: /s/ Xxxxx X. Xxxxx, Managing Member
------------------------------------
Xxxxx X. Xxxxx, Managing Member
Date Executed: 3/17/00
- 43 -
EXHIBIT "A"
FLOOR PLAN
[FLOOR PLAN OMITTED]
EXHIBIT "A"
Hillier [LOGO]
000 Xxxxx Xxxxxx
10TH Floor Plan
(SHADED AREA IS "PREMISES)
Page 1 of 2
[FLOOR PLAN OMITTED]
EXHIBIT "A"
Hillier [LOGO]
000 Xxxxx Xxxxxx
00XX Xxxxx Xxxx
Page 2 of 2
EXHIBIT "B"
Memorandum Confirming Term
THIS MEMORANDUM ("Memorandum") is made as of __________,2000 between 744
Xxxxx Investors LLC ("Landlord") and BROADVIEW NETWORKS HOLDINGS, INC. , a New
Jersey __________ ("Tenant"), pursuant to that certain Lease Agreement between
Landlord and Tenant dated as of March 1, 2000 (the "Lease") for the Premises
located at the 10th Floor, 000 Xxxxx Xxxxxx, Xxxxxx, Xxx Xxxxxx 00000 (the
"Premises"), and more particularly described in the Lease. All
initial-capitalized terms used in this Memorandum have the meanings ascribed to
them in the Lease.
1. Landlord and Tenant hereby confirm that:
(a) Commencement Date #1 of the Lease Term is __________, 2000;
(b) Commencement Date #2 of the Lease Term is ___________, 2000;
(c) The expiration date of the Lease Term is _________________;
and
(d) The date Base Rent for Premises #1 commences under the Lease
is ______, 2000.
(e) The date Base Rent for Premises #2 commences under the Lease
is _________ 1, 2000.
2. Tenant hereby confirms that:
(a) All commitments, arrangements or understandings made to induce
Tenant to enter into the Lease have been satisfied;
(b) All space and improvements have been completed and furnished
in accordance with the provisions of the Lease; and
(c) Tenant has accepted and is in full and complete possession of
the Premises.
3. This Memorandum shall be binding upon and inure to the benefit of the
parties and their permitted successors and assigns.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the
date first set forth above.
LANDLORD: TENANT:
744 XXXXX INVESTORS LLC BROADVIEW NETWORKS HOLDINGS, INC
By: 744 Broad Investors LLC, By: ______________________________
Managing Member
Title:________________________
By: _______________________________
Xxxxx X. Xxxxx, Managing Member
EXHIBIT "C"
Attached to and made part of a
Lease Agreement dated: March 15, 2000
Landlord: 744 XXXXX INVESTORS LLC
Tenant: BROADVIEW NETWORKS HOLDINGS, INC.
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the Project, the Common Facilities associated therewith,
if any, the land situated beneath the Building and the appurtenances thereto:
1. No sign, door plaque, directory strip, advertisement or notice shall be
displayed, painted or affixed by Tenant, its officers, agents, servants,
employees, patrons, licensees, customers, visitors or invitees in or on any part
of the outside or inside of the Premises, Building, Project or Common Facilities
without the prior written consent of Landlord and then only of such color, size,
character, style and material, and in such places as shall be approved and
designated by Landlord. In the event of the violation of the foregoing by
Tenant, Landlord may remove same without any liability, and may charge the
expense incurred by such removal to Tenant. Signs on entrance doors to the
Premises and directories shall be placed thereon by a contractor designated by
Landlord and shall be paid for by Tenant. Tenant shall be entitled to its
proportionate share of listings on the directory in the lobby of the Building.
2. Landlord will furnish Tenant with two (2) keys to the entrance doors of
the Premises, and Tenant will furnish Landlord with keys or other methodology to
all additional locks or bolts placed on the entrance doors to the Premises.
Landlord may at all times keep a pass key to the Premises.
3. Tenant, its officers, agents, agents, servants, employees, patrons,
licensees, customers. contractors, visitors, or invitees shall not block or
obstruct any of the entries, passages, doors, elevators, elevator doors,
corridors, hallways or stairways of the Building, Project or Common Facilities
or place, empty or throw away rubbish, litter, trash or material of any nature
in such areas, or permit such areas to be used at any time except for ingress or
egress of Tenant, its officers, agents, servants, employees, patrons, licensees,
customers, visitors or invitees.
4. Glass panel doors that reflect or admit into the passageways, or into
any place in the Building outside of the Premises, shall not be covered or
obstructed by Tenant, and Tenant shall not permit, erect and/or place solar
reflective film, drapes, curtains, blinds, shades, screens, furniture, fixtures,
shelving, display cases, tables, lights, signs or advertising devices in front
of, or in the proximity of any interior or exterior windows, glass panels or
glass doors that provide a view into the interior of the Premises, unless same
shall have first been approved in writing by Landlord.
5. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any bulky material, merchandise or materials
which requires the use of elevators or stairways, or movement of materials
through the Building entrances or lobby shall be restricted to such hours as
Landlord shall reasonably designate. All such movement shall be under the
supervision of Landlord and in the manner agreed between Tenant and Landlord by
prearrangement before performance. Such prearrangement initiated by Tenant will
include determination by Landlord, and subject to its decision and control, as
to the time, method, and routing of movement and as to limitations for safety or
other concern which may prohibit any article, equipment or any other item from
being brought into the Building. Tenant shall assume all risks as to the damage
to articles moved and injury to persons or public engaged or not engaged in such
movement, including equipment, property and personnel of Landlord if damaged or
injured as a result of acts in connection with carrying out this service for
Tenant from the time of entering the Project to completion of work; and Landlord
shall not be liable for acts of any person engaged
- 3 -
in, or any damage or loss to any of said property or persons resulting from, and
act in connection with such service performed for Tenant.
6. Tenant is cautioned in purchasing furniture and equipment that the size
is limited to such as can be placed in the elevator and will pass through the
doors to the Premises. Large pieces should be made in parts and set up in the
Premises. Landlord reserves the right to refuse to allow to be placed in the
Building, any furniture or equipment of any description which does not comply
with the above conditions. Landlord shall have the power to reasonably prescribe
the weight and position of safes and other heavy equipment or items, which shall
in all cases, to distribute weight, stand on supporting devices reasonably
approved by Landlord. All damages done to the Building by the installation or
removal of any property of Tenant, or done by Tenant's property while in the
Building, shall be repaired at the expense of Tenant. Tenant shall notify the
Building manager when safes or other heavy equipment are to be taken in or out
of the Building, and the moving shall be done under the supervision of the
Building manager, after written permission from Landlord. Persons employed to
move such property must be acceptable to Landlord.
7. There shall not be used in any space, or in the Common Facilities of
the Building, either by Tenant, or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except with rubber tires and side
guards.
8. All contractors and/or technicians performing work for Tenant within
the Premises, Building, Project, or Common Facilities, shall be referred to
Landlord for reasonable approval before performing such work. This shall apply
to all work including, but not limited to, installation of telephones, telegraph
equipment, electrical devices and attachments, and all installations affecting
floors, walls, windows, doors, ceilings, equipment, or any other physical
feature of the Premises, Building, Project or Common Facilities. None of this
work shall be done by Tenant without Landlord's prior written approval. Should
Tenant require telegraphic, telephone, annunciator or other communication
service, Landlord will direct the electrician where and how wires are to be
introduced and placed and none shall be introduced or placed except as Landlord
shall direct. Electric current shall not be used for power of heating without
Landlord's prior written permission.
9. Except as otherwise provided in this Lease, Tenant, its officers,
agents, servants or employees shall do no painting or decorating in the
Premises; or xxxx, paint or cut into, drive nails or screw into, nor in any way
deface any part of the Premises or Building without the prior written consent of
Landlord. If Tenant desires signal, communication, alarm or other utility or
service connection installed or changed, such work shall be done at expense of
Tenant, with the reasonable approval and under the direction of Landlord.
10. All doors leading to the Premises from any corridors, passage or
hallway shall be kept closed at all times, except when someone is actually
entering or leaving the Premises.
11. Tenant, its officers, agents, servants and employees shall, before
leaving the Premises unattended, close and lock all doors and shut off all
utilities; any damage resulting from failure to do so shall be paid by Tenant.
12. Tenant, its officers, agents, servants or employees shall not make or
permit any improper, objectionable or unpleasant noises or odors in the Building
or otherwise interfere in any way with other tenants or persons having business
with them.
13. Tenant, its officers, agents, servants or employees shall not permit
any equipment or device within the Premises which will impair radio or
television broadcasting or reception from or in the Building, Project or Common
Facilities.
14. Tenant, its officers, agents, servants, employees, patrons, licensees,
customers, contractors, visitors or invitees shall not bring into the Premises,
Project or Common Facilities or keep on the Premises any fish, fowl, reptile,
insect or animal of any kind whatsoever without the prior written consent of
Landlord.
- 4 -
15. Tenant, its officers, agents, servants or employees shall not use the
Premises, Building, Project or Common Facilities for housing, lodging or
sleeping purposes or (except as otherwise provided in this Lease), for the
cooking or preparation of food without the prior written consent of Landlord.
Notwithstanding the foregoing, Tenant shall be permitted to use a refrigerator
and microwave oven in its employee kitchen area.
16. Except as otherwise permitted herein, Tenant, its officers, agents,
servants and employees shall not install or operate any refrigerating, heating
or air conditioning apparatus (excluding Tenant's telecommunications equipment)
or other machinery of any kind, or carry on any mechanical operation (excluding
Tenant's telecommunications equipment), or bring into the Premises, Building,
Project or Common Facilities any inflammable, combustible or explosive fluid,
chemical, material or substance or Hazardous Material (except for household and
office cleaning supplies) without the prior written consent of Landlord.
17. No space in the Building, Project or Common Facilities shall, without
the prior written consent of Landlord, be used for manufacturing, public sales,
or for the storage of merchandise, or for the sale of merchandise, goods or
property of any kind, or auction.
18. The requirements of Tenant will be attended to only upon application
at the office of Landlord. Landlord's employees shall not perform any work or do
anything outside of their regular duties, unless under special instructions from
Landlord.
19. Plumbing, fixtures and appliances shall be used only for the purpose
for which designed, and no sweepings, rubbish, rags, Hazardous Material, or
other unsuitable material shall be thrown or placed therein. Damage resulting to
any such fixtures or appliances from misuse by Tenant or Tenant's agents,
employees or invitees, shall be paid by Tenant, and Landlord shall not in any
case be responsible therefore.
20. Tenant shall not permit the Premises to be used as a xxxxxx, beauty
manicure shop or employment bureau nor shall Tenant engage or pay any employee
from the Premises, except those employees actually working for Tenant on the
Premises, nor shall Tenant advertise for laborers giving an address of the
Premises, Building, Project or Common Facilities without the prior written
consent of Landlord.
21. Tenant shall keep the Premises neat and clean. Tenant shall not employ
any person for the purposes of such cleaning other than the cleaning and
maintenance personnel approved by Landlord.
22. In the event Tenant must dispose of crates, boxes, etc., which will
not fit into office wastepaper baskets, it will be the responsibility of Tenant
to dispose of same. In no event shall Tenant set such items in the public
hallways or other areas of the Building, or Project, excepting Tenant's own
Premises, for disposal.
23. Tenant will be responsible for any damage to the Premises, including
carpeting and flooring, as a result of rust or corrosion of file cabinets,
roller chairs, metal objects, or spills of any type of liquid.
24. Tenant shall not lay linoleum or other similar floor covering within
the Premises, without the prior written consent of Landlord.
25. Canvassing, soliciting and peddling in the Building, Project and
Common Facilities is prohibited and Tenant shall cooperate to prevent the same.
In this respect, Tenant shall promptly report such activities to Landlord.
26. Tenant, its officers, agents, employees, servants, patrons, customers,
contractors, licensees, invitees and visitors shall not solicit business nor
distribute handbills or other advertising matter in the Building, Project or
Common Facilities.
27. Landlord will not be responsible for lost or stolen personal property,
equipment, money or any article taken from the Premises, Building or Project,
regardless of how or when such loss occurs.
- 5 -
28. No vending machine of any description shall be installed, maintained
or operated upon the Premises without the prior written consent of Landlord.
29. Neither Tenant, nor any officer, agent, employee, servant, patron,
customer, contractor, visitor, licensee or invitee of Tenant, shall go upon the
roof of the Building, without the written consent of the Landlord.
30. Tenant shall not install any antenna or aerial wires, radio or
television equipment, or any other type of equipment, outside of the Building,
without Landlord's prior written consent and upon such terms and conditions as
may be specified by Landlord in each and every instance.
31. Tenant shall not depict the Building in an offensive manner, use the
name of the Building or Project for any purpose other than that of the business
address of Tenant, or use any picture or likeness of the Building or Project, or
use the Building or Project name in any letterheads, envelopes, circulars,
notices, advertisements, containers or wrapping material, without prior express
written consent of Landlord in each and every instance, which shall not be
unreasonably withheld, delayed or conditioned.
32. Landlord reserves the right to close the Building to the public at
6:00 p.m., Monday through Friday, and at 1:00 p.m. on Saturday, subject however,
to Tenant's rights to access the Premises under the Lease, and to require that
persons entering the Building identify themselves and establish their right to
enter or to leave the Building.
33. Access to the Building, or the halls, corridors, elevators or
stairways to the Premises, may be refused from 1:00 p.m. Saturday to 8:00 am.
Monday, on holidays declared by the Federal Government, whenever the Building is
not open to the public and during Monday through Friday between the hours 6:00
p.m. and 8:00 am., unless the person seeking access has a pass or is properly
identified. Landlord shall in no case be liable for damages for the admission to
or exclusion from the Building of any person whom Landlord has the right to
exclude hereunder. Tenant's officers, agents, servants and employees shall be
permitted to enter and leave the Building whenever appropriate arrangements have
been previously made between Landlord and Tenant with respect thereto. Tenant
shall be responsible for all persons for whom Tenant requests such permission,
and shall be liable to Landlord for all acts of such persons. Any person whose
presence in the Building, Project or Common Facilities at any time shall, in the
reasonable judgment of the Landlord, be prejudicial to the safety, character,
reputation and interest of the Building or Project or its tenants may be denied
access to the Building, Project or Common Facilities or may be ejected
therefrom. In case of invasion, riot, public excitement or other commotion,
Landlord may prevent all access to the Building, Project or Common Facilities
during the continuance of the same, by closing the doors or otherwise, for the
safety of the Tenants, and protection of property in the Building, Project and
Common Facilities. Landlord may require any person leaving the Building with any
package or other object from the Premises to exhibit a pass from Tenant, but the
establishment and enforcement of such requirements shall not impose any
responsibility on Landlord for the protection of Tenant against the removal of
property from the Premises. Landlord shall in no way be liable to Tenant for
damages or loss arising from the admission, exclusion or ejection of any person
to or from the Premises, the Building, the Project or the Common Facilities
under the provisions of this rule.
34. Smoking is prohibited in all areas of the Building except where
expressly permitted by Landlord (if any such area is permitted). Landlord
reserves the right to relocate or eliminate any such areas where smoking is
permitted, at any time.
35. Any additional services not required under the Lease to be performed
by Landlord, which Tenant requests Landlord to perform and which are performed
by Landlord, shall be billed to Tenant at Landlord's reasonable cost plus ten
percent (10%).
- 6 -
36. Tenant shall not clean nor require, permit, suffer or allow any window
in the Premises to be cleaned from the outside in violation of any applicable
law.
37. No carpet, rug or other article shall be hung or shaken out of any
window of the Building; and Tenant shall not sweep or throw or permit to be
swept or thrown from the Premises any dirt or other substances into any of the
corridors or halls, elevators or out of the doors or windows or stairway of the
Building.
38. Landlord reserves the right to rescind any of these rules and
regulations and to make such other and further rules and regulations as in its
sole judgment shall from time to time be deemed appropriate for the safety,
protection, care and cleanliness of the Building, the operation thereof, the
preservation of good order therein and the protection and comfort of the tenants
and their agents, employees and invitees, which rules and regulations, when made
and written notice thereof is given to Tenant, shall be binding upon it in like
manner as if originally herein prescribed.
- 7 -
EXHIBIT "D"
Attached to and made part of
Lease Agreement dated: March 15, 2000
Landlord: 744 XXXXX INVESTORS LLC
Tenant: BROADVIEW NETWORKS HOLDINGS, INC.
SPECIAL PROVISIONS
Landlord agrees that on or before July 31, 2000 it shall install
additional 4 inch (4") conduits into the basement of the Building. At such time,
Tenant will be granted the right to install its cabling within such conduit(s)
("Cabling") in return for (i) a payment by Tenant to Landlord of $7,500.00 per
conduit, not to exceed two (2) conduits, provided Landlord shall bring the
conduit to a telephone closet on the tenth (10th) floor and (ii) Tenant paying
Landlord, as Additional Rent, a monthly fee of $200.00 per conduit throughout
the term of this Lease and any extension thereof.
EXHIBIT "E"
WORK LETTER AGREEMENT
Attached to and made part of
Lease Agreement dated: March 15, 2000
Landlord: 744 XXXXX INVESTORS LLC
Tenant: BROADVIEW NETWORKS HOLDINGS, INC.
Tenant accepts the Premises in "as is" condition, except Landlord shall perform
the following work ("Landlord's Work"):
(i) At such time as the electricity capacity of the Building is upgraded
by the local provider, Landlord shall deliver to a location within
the Premises (to be determined by Landlord) the main switch panel in
the basement of the Building six hundred (600) amps of power for the
Premises (the "Required Amps"). Notwithstanding anything to the
contrary contained in this Lease, Tenant shall pay Landlord the sum
of $13,333.32 to partially reimburse Landlord for the cost of the
required Amps. In accordance the terms and provisions of this Lease,
Tenant, at it's sole cost and expense, shall be responsible for (i)
wiring and distributing the electrical capacity throughout the
Premises and (ii) having the local utility install a direct meter
and ancillary equipment to measure the electrical consumption.
Notwithstanding anything to the contrary contained in the foregoing,
Landlord shall provide six hundred (600) amps of power to the
Premises #1 by July 15, 2000 on a temporary basis until the
Building's capacity upgrade is completed.
(ii) Xxxxx any asbestos in Premises #1 in accordance with applicable law.
(iii) Deliver Premises #1 broom clean and vacant, with Premises #1 demised
from the remainder of the Premises. Tenant agrees that it shall
provide Landlord with a design as to where the wall shall be demised
no later than March 20, 2000.
(iv) Xxxxx any asbestos in Premises #2 in accordance with applicable law.
(v) Demise the Premises from the remainder of the tenth (10th) floor,
unless Tenant exercises it's rights under the first paragraph of
Article 61 of the Lease.
Tenant and Landlord are executing simultaneously herewith a Lease (the
"Lease") covering the space referred to above as more particularly described in
the Lease (the "Premises").
To induce Tenant to enter into the Lease and in consideration of the
mutual covenants in the Lease and this Agreement, Landlord and Tenant mutually
agree as follows
1. Tenant shall furnish Landlord with a space design plan ("Design Plan")
approved by Tenant no later than March 20, 2000 (the "Approval Date"). Based
upon the Design Plan and meetings with Landlord and Landlord's architect,
Landlord's architect will furnish Tenant (for Tenant's reasonable approval
and/or reasonable reasons for disapproval within five (5) business days of
Tenant's receipt thereof), with architectural drawings and such other
information as Landlord shall reasonably require ("Tenant Drawings"). The Tenant
Drawings shall be used by Landlord's architect to prepare all engineering
drawings (including drawings for electrical, mechanical, plumbing, and fire
protection systems), plans, specifications, and other materials (collectively,
"Working Drawings") necessary for construction of tenant improvements ("Tenant
Improvements") required by Tenant for the Premises and for the preparation of
all permit applications and construction documents relating to the Tenant
Improvements. If Tenant approves of the Design Plan on or before the Approval
Date, Tenant Drawings shall be furnished by
Landlord or it's representatives to Tenant within fifteen (15) business days of
the Approval Date. Within five (5) business days of Tenant's receipt of the
Tenant Drawings, Tenant must provide Landlord or it's architect Tenant's
reasonable approval and/or reasonable reasons for disapproval thereof. Within
ten (10) business days of Tenant's approval of the Tenant Drawings, Landlord
shall provide Tenant, for Tenant's immediate and reasonable
approval/disapproval, electrical and lighting plans ("Electrical Plans"). The
Tenant Drawings initially shall include the information in the following
paragraphs (a) through (c). The information in paragraphs (d) through (j) shall
be submitted to Landlord by Tenant no later than ten (10) days of Tenant's
approval of the Electrical Plans, but in no event later than April 4, 2000).
a. Space utilization study and sufficient detail to prepare Working
Drawings.
b. Special loading requirements for heavy items such as the location of
special file cabinets and special equipment.
c. Openings in the walls.
d. Special electrical, air conditioning, or plumbing work.
e. Location and dimensions of telephone equipment rooms and telephone,
data and electrical outlets.
f. Locations and types of partitions, including doors and hardware.
g. Special cabinet work or other millwork items.
h. Variations to standard ceiling heights.
i. Color of painted areas.
j. Selection of floor coverings or any special wall coverings.
Note: Items "d" and "g", "special wall coverings" referred to in item "j" and
above standard floor coverings are not items considered to be included in the
Improvement Allowance (as defined hereafter) or the Landlord Work Letter
Description (as annexed hereto as Exhibit E-1).
1.1 The failure of Tenant or Tenant's Architect to respond within the time
periods referred to above shall be deemed to be approval of the Tenant Drawings
and Working Drawings, as the case may be. In the event either Tenant or Tenant's
Architect rejects the Working Drawings, Tenant's Architect shall advise Landlord
of the reasons for rejection. The cost and expense of revising the Working
Drawings shall be the responsibility of Tenant.
1.2 Within ten (10) business days following Tenant's written approval of
the Working Drawings, Landlord shall enter into a contract with the contractor
for construction of the Tenant Improvements.
1.3 Subject to the conditions appearing at the conclusion of this Article
1.3, Landlord agrees to provide Tenant an improvement allowance for Premises #1
of ONE HUNDRED SIXTY-FIVE THOUSAND EIGHT HUNDRED THIRTY DOLLARS ($165,830.00)
("Premises #1 Improvement Allowance") [4,738 square feet x $35.00 per square
foot] to be applied against any hard costs and expenses incurred or expended for
the completion of any Tenant Work relating to Premises #1.
The Premises #1 Improvement Allowance shall be paid by Landlord
directly to Tenant's contractor within forty-five (45) days of presentation to
Landlord of (i) invoices for the work performed; (ii) a letter signed by an
authorized officer of the Tenant stating that the work has been performed
correctly and that the amount billed is as provided for in the Tenant's
construction contract with the contractor submitting the xxxx; (iii)
certification by Landlord's or Tenant's architect, at Landlord's option, that
said work has been completed in accordance with the plans approved by Landlord
and all contracts between Tenant and the contractors, (iv) a General Release or
Lien Waiver signed by the Contractor(s) and subcontractor(s) of Tenant who have
performed the work for which they are being compensated and (v) copies of any
contract between Tenant and their contractor or subcontractor for which a
distribution is requested. Landlord does not act as the guarantor of any work
performed by any contractor employed by Tenant nor shall Landlord be
responsible, either directly or indirectly, for any work performed by said
contractor or subcontractor.
Subject to the conditions appearing at the conclusion of this
Article 1.3, Landlord agrees to provide Tenant an office improvement allowance
for Premises #2 of SIX HUNDRED TWO THOUSAND FOUR HUNDRED THIRTY DOLLARS
($602,430.00) ([20,081 square feet x $30.00 per square foot] (the "Office
Improvement
- 2 -
Allowance") to be applied against any costs and expenses incurred or expended
for construction of the buildout by Landlord of Premises #2 in accordance with
the Exhibit E-1 specifications (the "Tenant Improvements"). Such costs and
expenses ("Tenant Improvement Costs") shall be deemed to include payment of
Landlord's architectural, engineering and design fees incurred on behalf of
Tenant for Premises #2, as well as project management fees to Landlord's
managing agent and all filing and permit fees. Landlord represents that,
provided the work requested of Landlord by Tenant does not exceed in any manner
that described to be delivered to Tenant pursuant to the provisions of Exhibit
E-1, the Tenant Improvement Costs shall not exceed the Office Improvement
Allowance. Tenant acknowledges and agrees that Tenant shall be solely
responsible for any architectural, engineering and design fees incurred on
behalf of Tenant to (i) Landlord's architects or engineers relative to Premises
#1 and (ii) Tenant's own architects or engineers relative to Premises #1 and
Premises #2.
Landlord represents that it shall inform Tenant, within ten (10)
business days of the approval by both parties of the Working Drawings, whether
or not the buildout of the Tenant Improvements for Premises #2 pursuant to the
Working Drawings results in the Tenant Improvement Costs exceeding the Office
Improvement Allowance (the "Additional Tenant Cost Notice"). If due to the
requests of Tenant the Improvement Costs do in fact exceed the Office
Improvement Allowance, Tenant shall within five (5) business days of Tenant's
receipt of the Additional Tenant Cost Notice, provide Landlord or it's architect
Tenant's reasonable approval of said additional costs and/or any reasonable
reasons for disapproval thereof. The failure of Tenant or Tenant's Architect to
respond within the foregoing time period shall be deemed to be approval of the
additional costs for which Tenant shall be responsible.
2. When Landlord is of the opinion that the Tenant Improvements are
substantially complete, then Landlord shall notify Tenant. Tenant agrees that
upon such notification, Tenant will promptly (and not later than five (5)
business days after the date of Landlord's notice) inspect the Premises and, if
applicable, furnish to Landlord a written statement that the Tenant Improvements
are substantially completed as required by the provisions of this Lease, with
the exception of certain specified and enumerated items, if any ("Punch List"),
of which Landlord must complete such Punch List items within thirty (30) days.
Tenant agrees that at the request of Landlord from time-to time thereafter,
Tenant will promptly furnish to Landlord revised Punch Lists reflecting any
completion of any prior Punch List items. "Substantial Completion" or
"Substantially Complete" shall mean all work of Landlord has been performed,
however, if the Punch List or any revised Punch List consists only of items, the
non-completion of which would not materially impair Tenant's occupancy of the
Premises, then, in such event, the Premises shall also be deemed to be
substantially complete, and Tenant will acknowledge in writing that the Premises
are substantially complete and accept possession of the Premises. Tenant's
acknowledgment or acceptance of the Premises shall not relieve Landlord of its
obligations to complete all Punch List items. If the Punch List or any revised
Punch List consists only of items, the non-completion of which would not
materially impair Tenant's occupancy of the Premises (e.g. the Additional
Premises shall be ready for the use and occupancy of Tenant and the operation of
Tenant's business, notwithstanding the fact that minor or insubstantial details
of construction, mechanical adjustments or decorations remain to be performed;
provided, however, the non-completion of said items shall not materially
interfere with Tenant's use and occupancy of the Premises and operation of
Tenant's business). In such event, the Premises shall be deemed to be
substantially complete ("Substantially Complete" or "Substantial Completion"),
and Tenant will acknowledge in writing that the Premises are Substantially
Complete and accept possession of the Premises.
Notwithstanding anything to the contrary contained in the this
Exhibit "E", in the event, subsequent to Tenant's inspection of the Premises,
Tenant is not reasonably satisfied that the Premises have been Substantially
Completed (with the exception of any Punch List Items), Tenant's architect shall
certify same in writing to Landlord ("Tenant's Noncompletion Notice") within
three (3) business days of the inspection. Within seven (7) Business Days of
Landlord's receipt of Tenant's Noncompletion Notice, Landlord shall either (i)
cause the contractor to commence to remedy those items specified by Tenant in
Tenant's Noncompletion Notice or (ii) object to Tenant in writing, specifying
the reason(s) Landlord objects to Tenant's Noncompletion Notice. If Landlord
objects to Tenant's Noncompletion Notice, Landlord and Tenant shall meet within
five (5) Business Days thereafter in an attempt to resolve the outstanding items
within Tenant's Noncompletion Notice, and if Landlord and Tenant cannot agree on
the Substantial Completion Date at such meeting, the Substantial Completion Date
shall be decided by arbitration before the American Arbitration Association.
- 3 -
3. Tenant shall have the right to inspect the Tenant Improvements from
time-to-time upon reasonable prior written notice to Landlord, provided that
Tenant (i) does not interfere with the progress of the Tenant Improvements and
(ii) is escorted to the construction area by a representative of Landlord. All
procedures and requirements relating to extras, changes, and deletions in the
Tenant Improvements, and the costs thereof, shall be governed by the terms of
the construction contract document. No extras, changes, or deletions in the
Tenant Improvements materially affecting any structural elements, windows,
elevators, or HVAC, electrical, plumbing, or other systems serving portions of
the Building, other than the Premises, or affecting the cost, scope, character,
or design of the Tenant Improvements shall be permitted without the prior
written consent of Landlord.
4. If Tenant wishes Landlord to do any work in connection with the
Premises other than the Tenant Improvements (such other work hereinafter is
referred to as "Tenant's Extra Work"), the following terms, conditions,
agreements, and procedures shall apply and control:
a. Tenant, at its sole cost and expense, shall submit to Landlord,
on or before the due date for submission of the plans for the Tenant
Improvements or such other date as may be expressly provided herein, all
necessary drawings, plan, and specifications for the proposed Tenant's
Extra Work (such drawings, plans, and specifications hereinafter are
referred to as "Tenant's Extra Work Plans"). Tenant's Extra Work Plans
must be acceptable in all respects to Landlord, which acceptance Landlord
may withhold in its sole discretion.
b. Landlord will construct or cause to be constructed Tenant's Extra
Work substantially in accordance with Tenant's Extra Work Plans provided
that Tenant's Extra Work Plans have been accepted in writing by Landlord,
and that Tenant has compiled with all provisions, terms, and conditions of
this Work Letter.
c. All of Tenant's Extra Work shall be done at Tenant's sole cost
and expense, which shall include a fee to Landlord equal to ten percent
(10%) of the total cost and expense for Landlord's overhead. Prior to
commencing any of Tenant's Extra Work, Landlord shall submit to Tenant for
Tenant's approval a written estimate of the cost of Tenant's Extra Work
(hereinafter referred to as "Estimate"). Landlord may elect not to proceed
with Tenant's Extra Work unless and until one estimate covering the same
is approved in writing by Tenant and an approved copy is delivered to
Landlord
d. Prior to commencement of Tenant's Extra Work or any extra or
change therein, Landlord may require Tenant to deposit with Landlord in
escrow an amount sufficient to cover all costs of performing Tenant's
Extra Work or any extra or change, including Landlord's ten percent (10%)
fee for overhead.
e. If Tenant desires any extras, changes, or deletions in Tenant's
Extra Work at any time, Tenant in each instance shall follow the same
procedure herein prescribed for the initiation, approval, and commencement
of Tenant's Extra Work. Tenant hereby designates ___________________ and
___________________ [PLEASE PROVIDE NAME ASAP] as its only representatives
to authorize any such extras, changes, or deletions.
f. Tenant agrees to pay or reimburse Landlord for all architect
costs and Landlord's general contractor's, subcontractor's, and general
conditions' costs pertaining to Tenant's Extra Work. Within seven (7) days
after being billed therefor, Tenant shall pay to Landlord or as Landlord
otherwise directs, all such costs for Tenant's Extra Work. Landlord shall
have, in connection with all such costs, all the rights and remedies that
Landlord has under the Lease in connection with Rent that is due and
payable by Tenant thereunder. All such costs shall be deemed Additional
Rent due and payable under the Lease.
- 4 -
5. Miscellaneous:
a. The Tenant Improvements and Tenant's Extra Work, if any, shall be
done by Landlord and/or its designers, contractors, and subcontractors, in
accordance with the terms, conditions and provisions herein contained.
b. Except as provided in the Lease, and as herein expressly set
forth, Landlord has no agreement with Tenant and has no obligation to
perform or provide any other work with respect to the Premises. Any other
work in the Premises which may be permitted by Landlord pursuant to the
terms and conditions of the Lease shall be done at Tenant's sole cost and
expense and in accordance with the terms and conditions and provisions of
the Lease and this Work Letter.
c. Under no circumstances shall Tenant's obligation to pay Rent be
delayed in whole or in part because of any delay or cost arising, from or
incurred in connection with the Tenant's Extra Work or any extra, change
or deletion requested or caused by Tenant or its agents or contractors at
any time (i) to any of the Tenant Improvements or Tenant's Extra Work or
(ii) in complying with the terms and conditions of this Work Letter or the
Lease.
d. Time is of the essence under this Agreement.
e. The person signing this Work Letter on behalf of the Tenant has
the express authority of Tenant to do so.
f. This Work Letter shall not be deemed applicable to any additional
office space added to the Premises at any time, whether by any options
under the Lease or otherwise, or to any portion of the Premises or any
additions thereto in the event of a renewal or extension of the original
term of the Lease, whether obtained pursuant to any options under the
Lease or otherwise, unless expressly so provided in the Lease or a written
amendment or supplement thereto.
g. This Work letter shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
6. Notwithstanding anything to the contrary contained in this Exhibit E,
Landlord will provide, at its own cost and expense, a central HVAC system for
Premises #2 only (exclusive of ductwork and control wiring, which shall be
provided by Landlord but included in the Improvement Allowance with regard to
Tenant Improvements) and Landlord shall maintain and repair the HVAC system,
except if caused by the wrongful acts, manner of use (as opposed to Tenant's
permitted use), omissions or negligence of Tenant.
7. Landlord shall, throughout the term of this Lease and at Landlord's
sole cost and expense, comply with any current or future rules, codes or laws
with regard to providing ADA handicap access to the Building, and shall provide
at the time the Premises are delivered to Tenant that the entryway to same is
ADA compliant.
8. Landlord shall also provide to the tenth (10th) floor of the Building a
ADA compliant unisex bathroom, and shall also renovate the elevator lobby and
bathrooms on the tenth (10th) floor in accordance with Building standard.
- 5 -
LANDLORD: 744 XXXXX INVESTORS LLC
By: 744 Broad Investors LLC, its Managing
Member
By: /s/ Xxxxx X. Xxxxx
-----------------------------
Xxxxx X. Xxxxx
Managing Member
TENANT: BROADVIEW NETWORKS HOLDINGS, INC.
By: _______________________ By: /s/ Xxxxx Xxxxxxx
-------------------------------
Its: ______________________ Its: VP-Admin
-------------------------------
- 6 -
EXHIBIT "E-1"
LANDLORD WORK LETTER DESCRIPTION
Attached to and made part of
Lease Agreement dated: March 15, 2000
Landlord: 744 XXXXX INVESTORS LLC
Tenant: BROADVIEW NETWORKS HOLDINGS, INC.
GENERAL CONSTRUCTION
Floors
1. Removal of existing flooring and prepare the slab to receive new
floor finishes.
2. Furnish and install building standard loop carpeting (Xxxxxxx
Basics) glued down to existing slab with 4" straight vinyl base in
tenant's choice of color, selected by tenant from Xxxxxxx Basic
sample book.
3. Furnish and install building standard vinyl composition tile (VCT)
in lieu of carpet with building standard 4" vinyl cove base in areas
designated by the tenant in not more than 5% of the area of the
demised premises.
Ceilings
1. Furnish and install 2'-0" by 2'-0" tegular edge (recessed edge) tile
with exposed 7/8" wide white tees.
2. All ceilings will be continuous to the exterior walls window,
pockets will not provided.
Partitions
1. Demising partitions will be provided by the landlord.
2. Building standard partition within tenant spaces shall extend from
the floor to 6" above the suspended ceiling and shall be framed with
2 1/2 by 25 gauge steel studs at 24" on center. One (1) layer of
5/8" gypsum wall- board (sheetrock) will be provided on each side
and will be taped and triple coat spackled on the exposed side.
3. Exterior walls will be prepared for painting.
4. Partitions terminating at the building exterior will meet either a
window mullion or column. No partitions, which interfere with the
operation of a window or obscure a window, will be permitted.
5. No partitions, which will block access to radiator control valves,
shall be permitted.
6. No curves will be provided in Building Standard partitions.
7. Building Standard partitions will be provided at the rate of 1
linear foot (LF) of partitions per 15 rentable square feet (RSF).
Doors and Frames
1. Multi tenant floors.
-- Main corridor entrances will be single 3'-0 x 7' 0" x 1 3/4"
solid core wood doors in a full height welded hollow metal
frame. The frame will have a wood surround on the corridor
side. There shall be a maximum of two (2) corridor entrance
doors per tenant on multi-tenant floors.
- 7 -
2. Single tenant floors.
-- Main entrance doors will be a pair of 3'-0' x 7' 0' x 1 3/4"
solid core wood doors in full height welded hollow metal
frame. The frame will have a wood surround on the corridor
side in a building standard finish.
3. General
a. Any existing doors that are re-used shall be considered a part
of the tenant's door allowance and will be refinished to
repair damage or match other interior finishes.
b. Building Standard interior doors shall be 3-0' x 7-0" x 1 3/4"
solid core wood doors in knock down hollow metal frames.
Building standard interior doors shall be provided at the rate
of one (1) per 30 LF of Building Standard partition.
4. Hardware
a. Building Standard entry doors will be provided with the
following.
1. Lever handle lockset
2. One and one-half (1 1/2) pair butt hinges
3. Silencers
4. Closers will be provided on suite entry doors only.
Building standard closer shall be a surface mounted
closer (parallel arm or equal) mounted on the tenant
side of the door. Closer shall be through bolted as
required for labeled openings.
b. Building Standard interior doors will be provided with the
following.
1. Lever handle lachset.
2. One and one-half(1 1/2) pair butt hinges.
3. Dome Stop
4. Silencers
c. Tenant, at its sole cost and expense, may install security devices
such as card or proximity readers on the entry doors, subject to
the landlord's approval. Tenant shall submit all devices for
approval by the landlord prior to installation.
Window Treatments
Building standard horizontal off-white window blinds will be provided at all
windows. No substitutions will be permitted.
Finishes
1. All partitions will be painted with one prime coat and one finish coat in
colors selected by the tenant from the landlord's standard color chart.
Paint will be Xxxxxxxx Xxxxx or equal. All paint shall be latex flat.
Twenty percent (20%) of the partitioning may be painted in an accent color
on walls from corner to corner. Not striping will be provided.
2. Entrance door to tenant's space will be finished in the buildings standard
color. Wood doors and frames located within the tenant's space will be
painted with semi-gloss enamel paint, or in a clear finish at tenants'
choice.
3. Radiator covers and window trim will be painted with semi-gloss enamel
paint.
Electric
1. Electrical capacity will be provided at 6 xxxxx connected load per
rentable square foot at the floor electrical closet at 277/480 volts for
the tenant.
2. Lighting shell consist of a 2' x 4', 18 cell 3" deep parabolic fluorescent
lay in fixture with three (3) 32 watt energy efficient lamps and
electronic ballast.
- 8 -
3. Emergency lighting will be provided by landlord within the demised
premises in compliance with applicable codes.
4. Electrical receptacles shall be provided in building standard partitions
as follows. Receptacles will not be provided in core walls or on columns.
a. 120V 15A wall receptacle: 1 per every 150 RSF.
b. Dedicated 120V 20A wall receptacle: 1 per every 5,000 RSF.
c. GFI receptacle: 1 per every 16,000 RSF.
d. One quadruplex electrical wall receptacle may be exchanged for two
duplex outlets.
5. Light switches shall be provided as follows.
a. One (1) switch per room.
b. Open office areas shall be provided with switches so that one half
(1/2) of the lights in an area greater than 500 SF may be shut off
at one time.
6. Fire alarms devices shall be provided in compliance with applicable codes
for office occupancies. Special fire alarm devices or systems for computer
rooms, supplementary air conditioning systems, food service facilities,
file rooms, or other non-typical office construction shall be provided by
the tenant at tenant's sole cost and expense. Final connection of all fire
alarm systems provided by tenants to the building fire alarm system shall
be by the landlord's fire alarm contractor at tenant's expense.
Heating, Ventilation, and Air Conditioning
1. Air Conditioning
a. HVAC is provided to maintain year round comfort based on ASHRAE
Comfort Chart. This is based on cooling 1.5 xxxxx per square foot
lighting and 2.5 xxxxx per square foot power, one person for 100
square feet and the use of building standard internal shading
devices.
b. Zoning is provided to individual areas (areas are determined by
tenant layout) by use of single duct bypass boxes. Allowances are: 1
per 1,080 square feet for perimeter zones and 1 per 1800 square feet
for interior zones.
c. Air distribution devices will be building standard diffusers and
return air grills compatible with the building standard ceiling and
shall be white to match the ceiling. No linear diffusers, air
handling light fixtures, air boots, etc. will be provided.
2. Ventilation air (fresh air) will be provided at the rate of .2 CFM per
square foot.
3. Heating
a. Heating is provided through perimeter cast iron radiators during
regular business hours.
b. Zoning is provided utilizing self contained thermostatic control
valves at a minimum one (1) per two radiators.
Fire Protection
1. Recessed concealed sprinkler heads and necessary branch piping will be
provided, at the rate of one (1) head per 150 RSF in compliance with
applicable code requirements for an office occupancy. Sprinkler heads will
be located at the center of ceiling tiles.
2. Sprinkler heads will be in off-white standard factory finish.
3. No deluge, pre-action, or high-density systems will be installed.
- 9 -
Telecommunications
1. Voice, high-speed data, and high speed Internet access will be available
to every tenant space at tenant cost. Tenant will have the option of
choosing any telephone carrier, Internet provider, data transmission
carrier, etc., at the sole cost and expense of the tenant.
2. The building will provide redundant fiber optic vertical backbone
containing the following.
a. Twenty-four (24) Multimode and twelve (12) single Mode fibers per
floor.
b. T1 (ABAM) cable and voice grade copper (approximately 48 pairs per
floor).
c. 200 pair voice grade copper per floor.
d. RG-11 riser grade coax cable to support DSS and land based broadcast
video.
3. Telephone riser and IDF shall be provided by the landlord. IDF"s will
contain blocks for termination of tenant cabling for high speed fiber,
copper, an Internet provisioning. All connection of tenant telephone
cabling to the building IDF shall be by landlord's contractor at the
tenant's sole expense.
4. Tenant shall install its own telephone equipment wiring at tenant's sole
cost and expense. Tenant telephone work shall be coordinated with the
initial tenant installation; cost of repair, refinishing, etc., due to the
actions of tenant's installation forces shall be repaired by landlord at
tenant expense.
5. Tenant may utilize plenum rated cable for voice and data cabling.
6. A telephone junction box and 3/4" conduit stub-up will be provided for
tenant telephones at the rate of one (1) per every 200 RSF. One (1)
dragline shall be provided for each stub-up; stubups will extend 6" above
the finished ceiling.
7. The building riser will be supported by several voice/data carriers and
services whose facilities will be co-located at the MDF (main distribution
frame) room in the basement. Scheduled services available are: Qwest
redundant OC-18 with expansion to OC-48+, Xxxx Atlantic sonnet ring,
MCI/Worldcom services, and others.
Tenant Identification.
1. Landlord shall provide a building directory in the ground floor lobby.
Tenant shall submit its building directory listing with its final plans.
The quantity of listing will be determined by Landlord at Tenant's sole
cost and expense.
2. Landlord shall provide initial listings at its sole cost and expense. Any
changes or additional listings will be furnished and installed by Landlord
at Tenant's sole cost and expense.
3. Landlord, at its sole cost and expense, shall furnish and install Tenant's
identification on Tenant's front entry surround. The design of such
identification shall conform to the Building Standard, and shall be
approved by landlord.
4. In cases where a tenant had two corridor entry doors, one shall be
designated as the principal entry only. Secondary doors shall have no
identification whatsoever, except the room or suite number.
- 10 -
EXHIBIT "F"
INTENTIONALLY DELETED
- 11 -
EXHIBIT "G"
CLEANING SPECIFICATIONS
GENERAL CLEANING OFFICE AREAS - NIGHTLY - MONDAY THROUGH FRIDAY (LEGAL AND
BUILDING SERVICE EMPLOYEES INTERNATIONAL UNION HOLIDAYS EXCLUDED)
Dust sweep composition flooring with specially treated cloths.
Carpet sweep carpeted areas four (4) nights each week, spot clean carpets once
each week and vacuum once each week, moving light furniture other than desks,
file cabinets, etc.
Remove waste paper and waste materials to designated area in the premises during
evening hours using special junior carriages. Waste or rubbish bag shall be
supplied to us by the Landlord.
Dust and wipe clean furniture, fixtures, desk equipment, telephones and windows
xxxxx with specially treated cloth, if accessible.
Dust baseboards, chair rails, trim, louvers, pictures, charts etc. within reach.
LAVATORIES - NIGHTLY
Sweep and wash flooring with approved germicidal detergent solution.
Wash and polish mirrors, powder shelves, bright work, etc., including
flushometers, piping and toilet seat hinges.
Wash both sides of toilet seats, wash basin, bowls and urinals with approved
germicidal detergent solution.
Dust partitions, tile walls, dispensers and receptacles.
Remove waste paper and refuse to a designated area in the premises, during
evening hours, using special janitor carriages.
Fill toilet tissue dispensers.
Fill towel and soap dispensers in public and ADA bathrooms with supplies
furnished by Landlord.
PUBLIC AREAS - PERIODIC CLEANING
Elevator, stairway, office and utility doors on each floor will be checked for
general cleanliness, removing finger marks as necessary.
Remove finger marks from metal partitions and other similar surfaces as
necessary.
HIGH DUSTING
Do high dusting every three (3) months which includes the following:
Dust pictures, frames, charts, graphs and similar wall hangings not reached in
nightly cleaning.
Dust exterior of light fixtures.
Dust overhead pipes, sprinklers, etc.
Dust window frames.
- 12 -
LAVATORIES - PERIODIC CLEANING
Machine scrub flooring with approved germicidal detergent solution as necessary.
Wash partitions, tile walls and enamel surfaces with approved germicidal
detergent solution once a month.
Dust exterior of lighting fixtures every three (3) months.
High dust once per month.
WINDOW CLEANING
1. Clean all perimeter office windows, both exterior and interior, two times a
year weather permitting.
2. All window cleaning will be performed during the regular working hours of
7:00 a.m. to 3:30 p.m. Monday through Friday, excluding Saturdays and Sundays,
and union holidays.
3. No exterior window washing will be done on days of rain, sleet, or snow but
will be performed as soon as possible thereafter.
SCHEDULE OF CLEANING
Night Cleaning service shall be rendered five nights each week; Monday through
Friday, except on Union and Legal Holidays.
EXTERMINATING SERVICE
Base Building exterminating services will be provided once a month for mice and
roaches. Special services such as fogging etc., will be furnished upon request
for an additional charge at prices to be mutually agreed upon in advance.
- 13 -
