LEASE
400 KELBY ASSOCIATES,
Landlord
TO
PHILIPP BROTHERS CHEMICALS INC.,
Tenant
Premises: Xxxxxx Plaza, 400 Kelby Street, Fort Xxx, New Jersey
The Land affected by the Within Instrument Lies in Block 4502 on the Tax Map of
the Borough of Fort Xxx, County of Bergen (Tax Lots 1 and 2).
INDEX
Article Caption Page
------- ------- ----
1. Demise, Premises, Term, Rents................................................................1
2. Use..........................................................................................3
3. Completion of Renovation of the Building and Preparation of the
Demised Premises.............................................................................4
4. When Demised Premises Ready for Occupancy....................................................6
5. Adjustments of Rent..........................................................................7
6. Deleted Prior to Execution..................................................................15
7. Subordination, Notice to Lessors and Mortgagees.............................................15
8. Quiet Enjoyment.............................................................................17
9. Assignment and Subletting...................................................................17
10. Compliance with Laws and Requirements of Public Authorities.................................24
11. Insurance...................................................................................25
12. Rules and Regulations.......................................................................28
13. Tenant's Changes............................................................................28
14. Tenant's Property...........................................................................31
15. Repairs and Maintenance.....................................................................32
16. Electricity.................................................................................33
17. Heat, Ventilation and Air Conditioning......................................................39
18. Landlord's Other Services...................................................................40
19. Access, Changes in Building Facilities, Name................................................41
20. Notices of Accidents........................................................................43
21. Non-Liability and Indemnification...........................................................43
22. Destruction or Damage.......................................................................44
23. Eminent Domain..............................................................................45
24. Surrender...................................................................................47
25. Conditions of Limitation....................................................................48
26. Re-Entry by Landlord........................................................................49
27. Damages.....................................................................................50
28. Waiver......................................................................................52
29. No Other Waivers or Modifications...........................................................53
30. Curing Tenant's Defaults, Additional Rent...................................................53
31. Broker......................................................................................55
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32. Notices.....................................................................................55
33. Estoppel Certificate, Memorandum............................................................55
34. Arbitration.................................................................................56
35. No Other Representations, Construction, Governing Law, Consents.............................57
36. Parties Bound...............................................................................57
37. Certain Definitions and Construction........................................................58
38. Adjacent Excavation and Construction-Shoring................................................58
39. Supplemental Air Conditioning System........................................................59
Testimonium and Signatures..................................................................60
Acknowledgments.............................................................................61
Exhibit A - Description.....................................................................62
Exhibit 3 - Floor Plan......................................................................63
Exhibit C - Work Letter.....................................................................64
Exhibit D - Rules and Regulations...........................................................75
Exhibit E - Definitions.....................................................................78
Exhibit F - Cleaning Specifications.........................................................80
This index is included only as a matter of convenience of reference and
shall not be deemed or construed in any way to define or limit the scope of the
following lease or the intent of any provision thereof.
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LEASE
LEASE dated July 25, 1986, between 400 KELBY ASSOCIATES, a New Jersey limited
partnership having an office at 000-00 Xxxxxx Xxxxxxxxx, X.X. Xxx 000, Xxxxxx
Xxxxx, Xxx Xxxx 00000 (hereinafter referred to as "Landlord") and PHILIPP
BROTHERS CHEMICALS, INC., a New York corporation having an office at 00 Xxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as "Tenant").
W I T N E S S E T H:
ARTICLE I
Demise, Premises, Term, Rents
1.01 Landlord hereby leases to Tenant, and Tenant hereby hires
from Landlord, the premises hereinafter described, in the building located at
000 Xxxxx Xxxxxx; in the Borough of Fort Xxx, County of Bergen, State of New
Jersey (the "Building"), on the parcel of land more particularly described in
Exhibit A (the "Land"), for the term hereinafter stated, for the rents
hereinafter reserved and upon and subject to the conditions (including
limitations, restrictions and reservations) and covenants hereinafter provided.
Each party hereby expressly covenants and agrees to observe and perform all of
the conditions and covenants herein contained on its part to be observed and
performed.
1.02 The premises hereby leased to Tenant is the entire
fourteenth (14th) floor of the Building, as shown on the floor plan annexed
hereto as Exhibit B. Said premises together with all fixtures and equipment
which at the commencement, or during the term, of this lease are thereto
attached (except items not deemed to be included therein and removable by Tenant
as provided in Article 14) constitute and are hereinafter referred to as the
"Demised Premises".
1.03 The term of this lease, for which the Demised Premises
are hereby leased, shall commence on a date (herein referred to as the
"Commencement Date") which shall be (i) the later of (a) October 1, 1986 or (b)
the day on which the Demised Premises are ready for occupancy (as defined in
Article 4) or (ii) the day Tenant, or anyone claiming under or through Tenant,
first occupies the Demised Premises for business, whichever occurs earlier, and
shall end at noon of the last day of the calendar month in which occurs the day
preceding the tenth (10th) anniversary of the Commencement Date, which ending
date is hereinafter referred to as the "Expiration Date", or shall end on such
earlier date upon which said term may expire or be cancelled or terminated
pursuant to any of the conditions or covenants of this lease or pursuant to law.
Promptly following the Commencement Date the parties hereto (hereinafter
sometimes referred to as the "parties") shall enter into a recordable
supplementary agreement fixing the dates of the Commencement Date and the
Expiration Date and if they cannot agree thereon within fifteen (15) days after
Landlord's request therefor, such dates shall be determined by arbitration in
the manner provided in Article 34.
1.04 The "rents" reserved under this lease, for the term
thereof, shall be and consist of:
(a) "fixed rent" of
(i) $477,351.00 per year ($39,779.25 per month)
from the Commencement Date through the day preceding the first anniversary of
the Commencement Date;
(ii) $488,716.50 per year ($40,726.38 per month)
from the first anniversary of the Commencement Date through the day preceding
the second anniversary of the Commencement Date;
(iii) $511,447.50 per year ($42,620.63 per month)
from the second anniversary of the Commencement Date through the day preceding
the third anniversary of the Commencement Date;
(iv) $522,813.00 per year ($43,567.75 per month)
from the third anniversary of the Commencement Date through the day preceding
the fourth anniversary of the Commencement Date;
(v) $545,544.00 per year ($45,462.00 per month)
from the fourth anniversary of the Commencement Date through the day preceding
the fifth anniversary of the Commencement Date; and
(vi) $636,468.00 per year ($53,039.00 per month)
from the fifth anniversary of the Commencement Date and continuing thereafter
for the remainder of the term of this lease,
which shall be payable in equal monthly installments in advance on the first day
of each and every calendar month during the term of this lease (except that
Tenant shall pay, upon the execution and delivery of this lease by Tenant, the
sum of $39,779.25 to be applied against the first rents becoming due under this
lease); and
(b) "additional rent" consisting of all such other
sums of money as shall become due from and payable by Tenant to Landlord
hereunder (for default in payment of which Landlord shall have the same remedies
as for a default in payment of fixed rent),
all to be paid to Landlord at its office, or such other place, or to such agent
and at such place, as Landlord may designate by notice to Tenant, in lawful
money of the United States of America.
1.05 Tenant shall pay the fixed rent and additional rent
herein reserved promptly as and when the same shall become due and payable,
without demand therefor and without any abatement, deduction or setoff
whatsoever except as expressly provided in this lease.
1.06 If the Commencement Date occurs on a day other than the
first day of a calendar month, the fixed rent for such calendar month shall be
prorated and the balance of the first month's fixed rent theretofore paid shall
be credited against the next monthly installment of fixed rent.
ARTICLE 2
Use
2.01 Tenant shall use and occupy the Demised Premises for
executive and general offices and for no other purpose. Additionally, subject
to, and in accordance with, the laws and requirements of public authorities, and
only if, and to the extent that the same is permitted under the Certificate of
Occupancy for the Demised Premises or for the Building and subject to the
following conditions, Tenant may use portions of the Demised Premises for the
following specific purposes:
(a) installation, maintenance and operation of a
kitchen and cafeteria not exceeding 400 square feet in aggregate area containing
equipment for the warming (as opposed to the cooking) of food for use
exclusively by Tenant, any permitted subtenants of Tenant and their respective
employees and business invitees solely in conjunction with the conduct of the
business of Tenant;
(b) installation, maintenance and operation of a
pantry and kitchen not exceeding 150 square feet in aggregate area containing
equipment for the warming (as opposed to the cooking) of food for use
exclusively by Tenant, any permitted subtenants of Tenant and their respective
employees and business invitees solely in conjunction with the conduct of the
business of Tenant;
(c) installation, maintenance and operation of a
computer room furnished with computers and peripheral related equipment, not
exceeding 700 square feet in aggregate area, for the sole use of Tenant, any
permitted subtenants of Tenant and their respective employees solely in
conjunction with the conduct of the business of Tenant; and
(d) installation, maintenance and operation of an
exercise room furnished with nautilus, universal or other comparable exercise
equipment and peripheral related equipment together with one (1) shower and
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one (1) bathroom for men and one (1) shower and one (1) bathroom for women, not
exceeding 500 square feet in aggregate area, for the sole use of Tenant, any
permitted subtenants of Tenant and their respective employees.
Notwithstanding the foregoing, however, Tenant shall immediately discontinue
using portions of the Demised Premises for any one or more of the above-listed
specific purposes listed in Subdivisions (a), (b) and (d) above if the same
shall materially interfere with the use and/or occupancy of all or a part of the
common areas of the Building or of any space in the Building leased to other
tenants until such interference is abated.
2.02 If any governmental license or permit, other than a
Certificate of Occupancy, shall be required for the proper and lawful conduct of
Tenant's business in the Demised Premises, or any part thereof, and if failure
to secure such license or permit would in any way affect Landlord, Tenant, at
its expense, shall duly procure and thereafter maintain such license or permit
and submit the same for inspection by Landlord. Tenant shall at all times comply
with the terms and conditions of each such license or permit. Landlord
represents that no other licenses or permits, other than a Certificate of
Occupancy, shall be required for the occupancy of the Demised Premises merely as
executive and general offices, without regard to the nature of Tenant's business
or particular manner of use.
2.03 Tenant shall not at any time use or occupy, or suffer or
permit anyone to use or occupy, the Demised Premises, or do or permit anything
to be done in the Demised Premises, in violation of the Certificate of Occupancy
for the Demised Premises or for the Building.
ARTICLE 3
Completion of Construction of the Building and
Preparation of the Demised Premises
3.01 Landlord shall use reasonable speed and diligence in
completing the construction of the Building and in preparing the Demised
Premises for Tenant's occupancy. In the event that the Premises are not ready
for occupancy in accordance with the provisions of Article 4 hereof by August 1,
1987 (the "Outside Cancellation Date") or within such period after the Outside
Cancellation Date as shall equal the aggregate period Landlord may have been
delayed in doing so due to any of the reasons set forth in Section 4.02 hereof,
then Tenant shall have the right to cancel and terminate this lease by giving
written notice to Landlord within twenty (20) days after the applicable date to
the effect that this lease will be deemed terminated on a designated date which
shall be at least thirty (30) days from the date of such notice. Upon the
designated date set forth in the aforesaid notice, this lease shall fully expire
and be deemed terminated, Landlord shall pay Tenant any sums previously paid to
Landlord under Section 1.04 of this lease and Tenant shall be fully released of
all obligations of this lease unless prior to such designated date, the Demised
Premises shall have been made ready for occupancy in accordance with the
provisions of Article 4 hereof, in which event, the notice of termination shall
be rendered null and void and the lease shall not so expire and be deemed
terminated but shall continue in full force and effect and binding upon the
parties hereto. The right of cancellation herein provided shall be Tenant's
exclusive remedy under this lease in the event of Landlord's failure to comply
with the provisions of this Section 3.01, subject, however, to "Landlord's
Reimbursement Obligation" as set forth in Section 3.04 hereof.
3.02 Landlord shall complete the construction of the Building
so as to include all the features and facilities required by this lease without
change therefrom, except:
(a) as may be consented to in writing by Tenant
(which consent shall not be unreasonably withheld or delayed); or
(b) as may be necessary to comply with any applicable
law or requirement of public authority and will not (i) materially and adversely
affect any of the services to be rendered by Landlord to Tenant pursuant to this
lease, (ii) materially and adversely affect (A) the layout, (B) the utility of
the Demised Premises, or (C) the usable area of the Demised Premises.
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3.03 The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner, and subject to the terms, conditions and
covenants, set forth in Exhibit C. The facilities, materials and work so to be
furnished, installed and performed in the Demised Premises by Landlord at its
expense are hereinafter and in Exhibit C referred to as "Landlord's Work". Such
other installations, materials and work which may be undertaken by or for the
account of Tenant to equip, decorate and furnish the Demised Premises for
Tenant's occupancy, are hereinafter and in Exhibit C referred to as "Tenant's
Work."
3.04 In the event the Demised Premises are not ready for
Tenant's occupancy by February 1, 1987, as such date may be extended by the
number of days of any delay due to any of the causes set forth in Sections 4.02
or 21.03 of this lease (the "Outside Completion Date"), due to the failure of
Landlord or any of its employees, agents, contractors to substantially complete
Landlord's Work and that portion of Tenant's Work to be performed by Landlord on
or before the Outside Completion Date, then Landlord shall reimburse Tenant for
any rent paid by Tenant (on a per diem basis) from the Commencement Date through
the date (the "Tenant's Prior Lease Obligation Date") of the calendar month in
which the Commencement Date shall occur in connection with an extension or
holding over of or under those certain leases dated (i) October 1, 1976, (ii)
March 30, 1979 and (iii) May 1, 1979 by and between Triborough Bridge and Tunnel
Authority, as Landlord and Tenant ("Tenant's Prior Lease") for a portion of the
fourteenth (14th) floor of the building known as 00 Xxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx ("Landlord's Reimbursement Obligation"). (For example, if the Outside
Completion Date is February 1, 1987 and the Commencement Date is February 16,
1987, then Landlord shall reimburse Tenant for 15 days of rent for February,
1987.) If (i) Landlord is incorrect in estimating a date for Tenant's occupancy,
as set forth in Section 4.01, (ii) the Demised Premises are not ready for
Tenant's occupancy, on the date set forth in the preliminary notice as provided
therein (the "Preliminary Notice Date"), unless such failure shall be due to any
of the reasons set forth in Section 4.02 hereof, and (iii) Tenant, or anyone
claiming through or under Tenant, shall not have occupied the Demised Premises
for business, then Landlord will, in addition, reimburse Tenant for any rent
paid by Tenant (on a per diem basis) from the Preliminary Notice Date through
the Tenant's Prior Lease Obligation Date. Except as specifically set forth in
this Section 3.04, Landlord shall have no liability whatsoever to Tenant for
Landlord's failure to substantially complete Landlord's Work and that portion of
Tenant's Work to be performed by Landlord on or before the Outside Completion
Date, and Landlord's Reimbursement Obligation shall constitute Tenant's
exclusive remedy under this lease in the event of such failure by Landlord,
subject, however, to Tenant's right of cancellation as set forth in Section 3.01
hereof.
ARTICLE 4
When Demised Premises Ready For Occupancy
4.01 The Demised Premises shall be deemed ready for Occupancy
on the earliest date on which all of the following conditions have been met:
(a) a Certificate of Occupancy (temporary or final)
has been issued by the governmental authority having jurisdiction over the
Building, permitting Tenant's use of the Demised Premises for the purposes for
which the same have been leased;
(b) Landlord's Work has been substantially completed;
and it shall be so deemed notwithstanding the fact that minor or insubstantial
details of construction, mechanical adjustment, or decoration remain to be
performed, the noncompletion of which does not materially interfere with
Tenant's use of the Demised Premises;
(c) reasonable means of access and facilities necessary
to Tenant's use and occupancy of the Demised Premises, including corridors,
elevators and stairways and heating, ventilating, Air Conditioning, sanitary,
water, and electrical facilities, have been installed and are in reasonably good
operating order and available to Tenant; and
(d) at such time when that portion of Tenant's Work,
to be performed by Landlord, has been substantially completed; and it shall be
so deemed notwithstanding the fact that (i) there is a delay in the completion
of such work for any of the reasons set forth in Part F of Exhibit C, provided
that Landlord, promptly after
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Landlord learns of such delay, has given Tenant reasonable notice of such delay,
in which event the provisions of Section 4.02 and Part F of Exhibit C shall
apply, and (ii) minor or insubstantial details of construction, mechanical
adjustment, or decoration remain to be performed, the noncompletion of which
does not materially interfere with Tenant's use of the Demised Premises.
Landlord shall give Tenant a preliminary notice, estimating when the conditions
listed in Subsections (a) through (d) above will be met, on a date which shall
be at least thirty (30) days prior to the estimated date set forth in such
preliminary notice. Subject to the provisions of Section 3.04, any variance
between the date so estimated and the date such conditions are met shall be of
no consequence.
4.02 If the occurrence of any of the conditions listed in
Section 4.01, and thereby the making of the Demised Premises ready for
occupancy, shall be delayed due to:
(a) any act or omission of Tenant or any of its
employees, agents or contractors or any failure (not due to any act or omission
of Landlord or any of its employees, agents or contractors) to plan or execute
Tenant's Work diligently and expeditiously, which shall continue after Landlord
shall have given Tenant reasonable notice that such act, omission or failure
would result in delay, and such delay shall have been unavoidable by Landlord in
the exercise of reasonable diligence and prudence,
(b) the nature of any items of Tenant's Work that
Landlord undertakes to perform for the account of Tenant (including any delays
incurred by Landlord, after making reasonable efforts, in procuring any
materials, equipment or fixtures of a kind or nature not used by Landlord as
part of its standard construction and provided that Landlord, promptly after
Landlord learns of such delay, has given Tenant reasonable notice of such
delay), then the Demised Premises shall be deemed ready for occupancy on the
date when they would have been ready but for such delay.
4.03 If and when Tenant shall take actual possession of the
Demised Premises, it shall be conclusively presumed that the same were in
satisfactory condition (except for latent defects) as of the date of such taking
of possession, unless within one (1) year after the Commencement Date Tenant
shall give Landlord notice specifying the respects in which the Demised Premises
were not in satisfactory condition.
ARTICLE 5
Adjustments Of Rent
5.01 Tax Escalation. For the purpose of Sections 5.01-5.06:
(a) "Taxes" shall mean the real estate taxes and
assessments and special assessments imposed upon the Building and the Land. If
any assessments or special assessments are payable in installments without the
imposition of interest or penalty, Taxes shall only include those installments
becoming due during the term of this lease for the Tax Year in which such
installments are payable, whether or not such assessments or special assessments
were levied or imposed before or during the term hereof. If at any time during
the term of this lease the methods of taxation prevailing at the commencement of
the term hereof shall be altered so that in lieu of or as an addition to or as a
substitute for the whole or any part of the taxes, assessments, levies,
impositions or charges now levied, assessed or imposed on real estate and the
improvements thereon, there shall be levied, assessed or imposed (i) a tax,
assessment, levy, imposition or charge wholly or partially as capital levy or
otherwise on the rents received therefrom, or (ii) a tax, assessment, levy,
imposition or charge measured by or based in whole or in part upon the Demised
Premises and imposed upon Landlord, or (iii) a license fee measured by the rents
payable by Tenant to Landlord, then all such taxes, assessments, levies,
impositions or charges, or the part thereof so measured or based, shall be
deemed to be included within the term "Taxes" for the purposes hereof; Landlord
and Tenant hereby agree that in the event and to the extent that the Taxes
payable upon the Land and Building are increased solely as a result of the
addition of rentable area of or to the Building (hereinafter referred to as
"additions"), Tenant shall have no obligation to pay Tenant's Proportionate
-5-
Share of such increase on account of additions, unless (i) Tenant shall have
first approved of the additions in writing, or (ii) such additions were
requested by Tenant or generally benefit all tenants of the Building.
(b) Base Tax Rate" shall mean $475,000.00;
(c) "Tax Year" shall mean the fiscal year (presently a
calendar year) for which Taxes are levied by the governmental authority;
(d) "Tenant's Proportionate Share" shall mean for
purposes of this lease and all calculations in connection herewith seven and
8/10 percent (7.8%), which has been computed on the basis of a fraction, the
numerator of which is the agreed rentable square foot area of the Demised
Premises as set forth below (which rentable square foot area is hereinafter
sometimes referred to as the "Multiplication Factor") and the denominator of
which is the agreed rentable square foot area of the Building above grade level
as set forth below. The parties agree that the rentable square foot area of the
Demised Premises shall be deemed to be 22,731 square feet and that the agreed
rentable square foot area of the Building shall be deemed to 291,504 square feet
(hereinafter referred to as the "Building Area").
(e) "Tenant's Projected Share of Taxes" shall mean
either (i) for any Tax Year where no Tax Payment (as hereinafter defined) shall
have been payable by Tenant for the immediately preceding Tax Year, the product
of (x) six (6%) percent of The Base Tax Rate, multiplied by (y) Tenant's
Proportionate Share, or (ii) for any Tax Year where a Tax Payment shall have
been payable by Tenant for the immediately preceding Tax Year, the Tax Payment,
payable by Tenant for the immediately prior Tax Year in each case divided by
twelve (12) and payable monthly by Tenant to Landlord as additional rent.
5.02 Subject to the terms of Section 5.06 hereof, if the Taxes
for any Tax Year shall be more than the Base Tax Rate, Tenant shall pay, as
additional rent for such Tax Year, an amount equal to Tenant's Proportionate
Share of the amount by which the Taxes for such Tax Year are greater than the
Base Tax Rate. (The amount payable by Tenant is hereinafter referred to as the
"Tax Payment".) The Tax Payment and the Base Tax Rate shall be appropriately
prorated, if necessary, to correspond with that portion of a Tax Year occurring
within the Term of this lease. The Tax Payment shall be payable by Tenant within
ten (10) days after receipt of a demand from Landlord therefor, which demand
shall be accompanied by a copy of the tax xxxx together with Landlord's
computation of the Tax Payment. If the Taxes for any Tax Year are payable to the
taxing authority on an installment basis, Landlord may serve such demands upon,
and the Tax Payment for such Tax Year shall be payable by Tenant, on a
corresponding installment basis.
5.03 Notwithstanding the fact that the increase in rent is
measured by an increase in Taxes, such increase is additional rent and shall be
paid by Tenant as provided herein regardless of the fact that Tenant may be
exempt, in whole or in part, from the payment of any taxes by reason of Tenant's
diplomatic or other tax exempt status or for any other reason whatsoever.
5.04 Only Landlord shall be eligible to institute tax
reduction or other proceedings to reduce the assessed valuation of the Land and
Building. Should Landlord be successful in any such reduction proceedings and
obtain a rebate or a reduction in assessment for periods during which Tenant has
paid or is obligated to pay Tenant's Proportionate Share of increases in Taxes
then either (a) Landlord shall, in the event a rebate is obtained, return
Tenant's Proportionate Share of such rebate to Tenant after deducting Landlord's
expenses, including without limitation, attorneys' fees and disbursements in
connection with such rebate (such expenses incurred with respect to a rebate or
reduction in assessment being hereinafter referred to as "Tax Expenses"),
provided, however, that Tenant shall not be required to pay any amount to
Landlord on account of Tax Expenses in excess of Tenant's Proportionate Share of
such rebate, or, (b) if a reduction in assessment is obtained prior to the date
Tenant would be required to pay Tenant's Proportionate Share of such increase in
Taxes, Tenant shall pay to Landlord, upon written request, Tenant's
Proportionate Share of such Tax Expenses, provided, however, that with respect
to subdivision (b), Tax Expenses shall not exceed the amount that such reduction
in assessment would have reduced Taxes, had such reduction been obtained after
the date Tenant would be required to pay Tenant's Proportionate Share of such
increase in Taxes.
-6-
5.05 Within sixty (60) days after the expiration of any Tax
Year, Landlord shall furnish Tenant with a statement setting forth Tenant's
Proportionate Share of Taxes. The statement furnished under this Section 5.05 is
hereinafter referred to as a "Tax Statement".
5.06 (a) Commencing with the first Tax Year after Landlord
shall be entitled to receive a Tax Payment, Tenant shall pay to Landlord, as
additional rent for the then Tax Year, Tenant's Projected Share of Taxes. Upon
each date that a Tax Payment or an installment on account thereof shall be due
from Tenant pursuant to the terms of Section 5.02 hereof, Landlord shall apply
the aggregate of the installments of Tenant's Projected Share of Taxes then on
account with Landlord against the Tax Payment or installment thereof then due
from Tenant. In the event that such aggregate amount shall be insufficient to
discharge such Tax Payment or installment, Landlord shall so notify Tenant in a
demand served upon Tenant pursuant to the terms of Section 5.02, and the amount
of Tenant's payment obligation with respect to such Tax Payment or installment
pursuant to Section 5.02 shall be equal to the amount of the insufficiency. If,
however, such aggregate amount shall be greater than the Tax Payment or
installment, Landlord shall forthwith either (a) pay the amount of excess
directly to Tenant concurrently with the notice or (b) permit Tenant to credit
the amount of such excess against the next payment of Tenant's Projected Share
of Taxes due hereunder and, if the credit of such payment is not sufficient to
liquidate the entire amount of such excess, Landlord shall then pay the amount
of any difference to Tenant;
(b) Anything in this Article 5 to the contrary
notwithstanding, in the event that the holder of any superior mortgage or the
lessor of any superior lease (as such terms are defined in Section 7.01 hereof)
shall require advance payments from the Landlord on account of Taxes, then
Tenant will pay Tenant's Proportionate Share of any amounts required to be paid
in advance by Landlord with the holder of the superior mortgage or the lessor of
the superior lease to the extent that such payments made by Landlord exceed the
Base Tax Rate. Such payments, to be made by Tenant, shall not exceed Tenant's
Projected Share of Taxes. Any payments to be made by Tenant under this Section
5.06(b) shall be made ten (10) days prior to the date Landlord is required to
make such payments to the holder of the superior mortgage or the lessor of the
superior lease;
(c) Anything in Sections 5.01 through 5.06 to the
contrary notwithstanding, in no event whatsoever shall the fixed rent be reduced
below the fixed rent initially set forth in Section l.04(a) hereof as same may
be increased by provisions of this lease other than Sections 5.01 through 5.06;
and
(d) Notwithstanding the provisions of Sections 5.01
through 5.06, there will be no Tax Payment or payments on account of Tenant's
Projected Share of Taxes for any increases in Taxes attributable to the twelve
(12) month period commencing on the Commencement Date.
5.07 Expense Escalation. For purposes of this Article:
(a) "Operating Expenses" shall mean any and all
expenses incurred by Landlord in connection with the operation of the Building
including all expenses incurred as a result of Landlord's compliance with any of
its obligations hereunder other than Landlord's Work and such expenses shall
include: (i) salaries, wages, medical, surgical and general welfare benefits,
(including group life insurance) pension payments and other fringe benefits of
employees of Landlord engaged in the operation and maintenance of the Building
(the salaries and other benefits aforesaid of such employees servicing the
Building shall be comparable to those of employees servicing buildings similar
to the Building, located in the Borough of Fort Xxx); (ii) payroll taxes,
workmen's compensation, uniforms and dry cleaning for the employees referred to
in subdivision (i); (iii) the cost of all charges for steam, heat, ventilation,
Air Conditioning and water (including sewer rental) furnished to the Building
and/or used in the operation of all of the service facilities of the Building
and the cost of all charges for electricity furnished to the public and service
areas of the Building and/or used in the operation of all of the service
facilities of the Building including any taxes on any of such utilities; (iv)
the cost of all charges for rent, casualty, war risk insurance (if obtainable
from the United States government) and of liability insurance for the Building
to the extent that such insurance is required to be carried by Landlord under
any superior lease or superior mortgage or if not required under any superior
lease or superior mortgage then to the extent such insurance is carried by
owners of Buildings comparable to the Building; (v) the cost of all building and
cleaning supplies for the common areas of the Building and charges for telephone
for the Building;
-7-
(vi) the cost of all charges for management, window cleaning and service
contracts for the Building (if no managing agent is employed by Landlord or an
affiliate of Landlord is engaged as managing agent, there shall be included in
Operating Expenses a sum equal to 5.0% of all rents, additional rents and other
charges collected from tenants or other permitted occupants of the Building);
and (vii) the cost of rentals of capital equipment designed to result in savings
or reductions in Operating Expenses. Operating Expenses shall not include (viii)
administrative wages and salaries; (ix) renting commissions; (x) franchise taxes
or income taxes of Landlord; (xi) Taxes on the Land and Building; (xii) costs of
performing work or making installations, painting and decorating for any
occupant's space; (xiii) interest and amortization under mortgages; (xiv)
expenditures for capital improvements except (1) those which under generally
applied real estate practice are expenses or regarded as deferred expenses and
(2) for capital improvements required by law or (3) for capital improvements
which are designed to result in a saving in the amount of Operating Expenses, in
any of such cases the cost thereof shall be included in Operating Expenses for
the Operational Year in which the costs are incurred and subsequent Operational
Years, on a straight-line basis, to the extent that such items are amortized
over an appropriate period, but not more than ten years, with an interest factor
equal to two (2%) percent above the prime rate of Chase Manhattan Bank, N.A. at
the time of Landlord's having incurred said expenditure; (xv) costs of services
provided to other tenants of the Building to the extent that such services shall
exceed the services provided to Tenant hereunder without additional expense to
Tenant; (xvi) the cost of any items for which Landlord is reimbursed by payments
by Tenant, by any other tenant(s) or occupant(s) of the Building (except under
rent adjustment provisions similar to those contained in this Article 5), by any
other third party or parties, or by insurance proceeds or condemnation awards;
(xvii) salaries of executives who maintain an equity interest in Landlord; and
(xviii) the cost of completing construction of the Building. Operating Expenses
shall be subject to adjustment based upon the Occupancy Adjustment for each
Operational Year (as such terms are hereinafter defined) in which less than
ninety (90%) percent of the Building shall be occupied (on a rentable square
foot basis) during the term of this lease.
(b) "Operational Year" shall mean each calendar year
or part thereof occurring during the Term of this lease excluding the Initial
Operational Year;
(c) "Base Operating Expenses" shall mean $982,000.00;
(d) "Adjusted Base Operating Expenses" shall mean
Base Operating Expenses multiplied by a fraction (i) the numerator of which is
the number of days between the Commencement Date and the expiration of the
Initial Operational Year (as hereinafter defined) and (ii) the denominator of
which is 360;
(e) "Initial Operational Year" shall mean the
calendar year in which the Commencement Date occurs;
(f) "Initial Operating Period" shall mean that
portion of the Initial Operational Year between the Commencement Date and the
expiration of the Initial Operational Year;
(g) "Actual Initial Operating Expense Differential"
shall mean the actual difference between the Operating Expenses incurred by
Landlord for the Initial Operating Period (i.e., the Initial Operating Expenses
(as hereinafter defined) multiplied by a fraction, the numerator of which is the
number of days between the Commencement Date and the expiration of the Initial
Operational Period, and the denominator of which is the number of days between
the day Landlord opens the Building for occupancy by Tenants and the expiration
of the Initial Operating Period) and the Adjusted Base Operating Expense;
(h) "Tenant's Initial Projected Share of Operating
Expense Increase" shall mean one-twelfth (1/12th) of the product of (i)
Tenant's Operational Proportionate Share multiplied by (ii) the Actual Initial
Operating Expense Differential annualized to reflect a full calendar year;
(i) "Tenant's Initial Actual Proportionate Share of
Operating Expense Increase" shall mean the Actual Initial Operating Expense
Differential multiplied by Tenant's Operational Proportionate Share;
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(j) "Initial Operating Expenses" shall mean the actual
amount of Operating Expenses incurred by Landlord during the Initial Operational
Year;
(k) "Tenant's Operational Proportionate Share" shall
mean 7.8%;
(l) "Actual Operating Expense Differential" shall mean
the amount by which the Operating Expenses actually incurred by Landlord for the
recently expired Operational Year actually exceeded the Base Operating Expenses;
(m) "Tenant's Projected Share of Operating Expense
Increase" shall mean one-twelfth (1/12th) of the product of (i) Tenant's
Operational Proportionate Share, multiplied by (ii) the Actual Operating Expense
Differential for the recently expired Operational Year;
(n) "Tenant's Actual Share of Operating Expense
Increase" shall mean the product of (i) the Actual Operating Expense
Differential multiplied by (ii) Tenant's Operational Proportionate Share; and
(o) "Occupancy Adjustment shall mean the amount by
which Operating Expenses shall be deemed to be increased to reflect ninety (90%)
percent occupancy (on a rentable square foot basis) of the Building during any
Operational Year in which the Building is less than ninety (90%) percent
occupied (on a rentable square foot basis).
5.08 (a) After the expiration of the Initial Operational
Year, Landlord shall furnish Tenant with a written detailed statement (the
"Initial Operating Statement") indicating (i) Initial Operating Expenses, (ii)
Actual Initial Operating Expense Differential, (iii) Adjusted Base Operating
Expenses, (iv) Tenant's Initial Actual Proportionate Share of Operating Expense,
and (v) Landlord's computation of Tenant's Initial Projected Share of Operating
Expense Increase for the upcoming Operational Year;
(b) After the expiration of the first Operational Year
after the Initial Operational Year and each Operational Year thereafter,
Landlord shall furnish Tenant with a written detailed statement (a "Subsequent
Operating Statement") indicating (i) actual amount of Operating Expenses for the
recently expired Operational Year, (ii) Landlord's computation of Tenant's
Projected Share of Operating Expense Increase for the upcoming Operational Year,
and (iii) the amount of any discrepancy between Tenant's Actual Share of
Operating Expense Increase and Tenant's Initial Projected Share of Operating
Expense Increase or Tenant's Projected Share of Operating Expense Increase, as
the case may be, for the recently expired Operational Year.
(c) Payments of rental in accordance with the Initial
Operating Statement and Subsequent Operating Statements shall be made at the
times specified in Section 5.09.
5.09 (a) Tenant shall pay to Landlord as additional rent for
the Initial Operating Period, Tenant's Initial Actual Proportionate Share of
Operating Expense Increase within ten (10) days after receipt of the Initial
Operating Statement;
(b) Tenant shall pay to Landlord, as additional rent
during the first Operational Year after the Initial Operational Period, Tenant's
Initial Projected Share of Operating Expense Increase, which shall be payable in
equal monthly installments, the first payment representing the payments
retroactive to the first day of the current Operational Year and including the
current month shall be made ten (10) days after Tenant receives the Initial
Operating Statement, and thereafter normal monthly payments shall be made on the
first day of each month throughout the upcoming Operational Year and thereafter
until receipt of the first Subsequent Operating Statement. If the first
Subsequent Operating Statement furnished by Landlord to Tenant for the recently
expired Operational Year shall indicate that Tenant's Initial Projected Share of
Operating Expense Increase exceeded Tenant's Actual Share of Operating Expense
Increase, Landlord shall forthwith either (a) pay the amount of excess directly
to Tenant concurrently with the first Subsequent Operating Statement or (b)
permit Tenant to credit the amount of such excess against the subsequent
payments of rent due hereunder. If, however, the first Subsequent Operating
Statement shall
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indicate that Tenant's Actual Share of Operating Expense Increase exceeded
Tenant's Initial Projected Share of Operating Expense Increase, Tenant shall,
within ten (10) days, pay the amount of such excess to Landlord as additional
rent;
(c) Tenant shall pay to Landlord, as additional rent
during each subsequent Operational Year, Tenant's projected Share of Operating
Expense Increase, which shall be payable in equal monthly installments, the
first payment representing the payments retroactive to the first day of the
current Operational Year and including the current month after crediting Tenant
with payments made for the current Operational Year but prior to the receipt of
a Subsequent Operating Statement, and which shall be made ten (10) days after
Tenant receives a Subsequent Operating Statement, and thereafter normal monthly
payments shall be made on the first day of each month throughout the upcoming
Operational Year and thereafter until receipt of the next Subsequent Operating
Statement. If a Subsequent Operating Statement furnished by Landlord to Tenant
for a recently expired Operational Year shall indicate that Tenant's Projected
Share of Operating Expense Increase exceeded Tenant's Actual Share of Operating
Expense Increase, Landlord shall forthwith either (a) pay the amount of excess
directly to Tenant concurrently with the Subsequent Operating Statement or (b)
permit Tenant to credit the amount of such excess against the subsequent
payments of rent due hereunder. If, however, the Subsequent Operating Statement
shall indicate that Tenant's Actual Share of Operating Expense Increase exceeded
Tenant's Projected Share of Operating Expense Increase, Tenant shall, within ten
(10) days, pay the amount of such excess to Landlord as additional rent;
(d) Anything in Sections 5.07 through 5.10 to the
contrary notwithstanding, in no event whatsoever shall the fixed rent be reduced
below the fixed rent initially set forth in Section 1.04(a) hereof as same may
be increased by provisions of this lease other than Sections 5.07 through 5.10.
The amounts payable pursuant to Sections 5.07 through 5.10 shall be prorated, if
necessary, to correspond with that portion of an Operational Year occurring
within the term of this lease; and
(e) Notwithstanding the provisions of Sections 5.07
through 5.10, Tenant shall not be required to pay either (i) Tenant's Actual
Share of Operating Expense Increase or (ii) Tenant's Initial Projected Share of
Operating Expense Increase or Tenant's Projected Share of Operating Expense
Increase, as the case may be, attributable to the twelve (12) month period
commencing on the Commencement Date.
5.10 The Initial Operating Statement and every Subsequent
Operating Statement given by Landlord shall be conclusive and binding upon
Tenant unless Tenant shall (a) notify Landlord within ninety (90) days after its
receipt of such statement that it disputes the correctness thereof, specifying
the item or items with respect to which Tenant desires to conduct its audit as
hereinafter provided which, in Tenant's sole judgment, may be incorrect and (b)
conduct an audit, upon reasonable advance notice to Landlord, solely with
respect to those items which Tenant specifies in its notice as set forth in
Subsection (a) hereof. If such dispute cannot be settled by agreement between
Landlord and Tenant within sixty (60) days after the completion of Tenant's
audit, Tenant may submit its dispute to arbitration within thirty (30) days
after the expiration of such sixty (60) day period. Pending the resolution of
such dispute by agreement or arbitration as aforesaid, Tenant shall, within ten
(10) days after receipt of such disputed Initial Operating Statement or
Subsequent Operating Statement, as the case may be, pay any additional rent due
in accordance therewith, but such payment shall be without prejudice to Tenant's
right to dispute such statement. If the dispute shall be resolved in Tenant's
favor, Landlord shall, within ten (10) days after Tenant's demand, pay Tenant
the amount of the overpayment, if any, resulting from Tenant's compliance with
the disputed Initial Operating Statement or Subsequent Operating Statement.
Landlord agrees to grant Tenant reasonable access to Landlord's books and
records for the purpose of verifying the specified items of Operating Expenses
and to make copies of any and all bills and vouchers relating thereto.
5.11 Landlord's failure during the lease term to prepare and
deliver any of the tax bills, statements, notice or bills set forth in this
Article 5, or Landlord's failure to make a demand, shall not in any way cause
Landlord to forfeit or surrender its rights to collect any of the foregoing
items of additional rent which may have become due during the term of this
lease. Tenant's liability for the amounts due under this Article 5 shall survive
the expiration of the Term.
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ARTICLE 6
Deleted Prior to Execution
ARTICLE 7
Subordination, Notice To Lessors And Mortgagees
7.01 This lease, and all rights of Tenant hereunder, are and
shall be subject and subordinate in all respects to all ground leases,
overriding leases and underlying leases of the Land and/or the Building now or
hereafter existing and to all mortgages which may now or hereafter affect the
Land and/or the Building and/or any of such leases, whether or not such
mortgages shall also cover other lands and/or buildings, to each and every
advance made or hereafter to be made under such mortgages, and to all renewals,
modifications, replacements and extensions of such leases and such mortgages and
spreaders and consolidations of such mortgages. This Section shall be
self-operative and no further instrument of subordination shall be required. In
confirmation of such subordination, Tenant shall promptly execute and deliver
any instrument that Landlord, the lessor of any such lease or the holder of any
such mortgage or any of their respective successors in interest may reasonably
request to evidence such subordination. The leases to which this lease is, at
the time referred to, subject and subordinate pursuant to this Article are
hereinafter sometimes referred to as "superior leases" and the mortgages to
which this lease is, at the time referred to, subject and subordinate are
hereinafter sometimes referred to as "superior mortgages" and the lessor of a
superior lease or its successor in interest at the time referred to is sometimes
hereinafter referred to as a "lessor".
7.02 In the event of any act or omission of Landlord which
would give Tenant the right, immediately or after lapse of a period of time, to
cancel or terminate this lease, or to claim a partial or total eviction, Tenant
shall not exercise such right (i) until it has given written notice of such act
or omission to the holder of each superior mortgage and the lessor of each
superior lease whose name and address shall previously have been furnished to
Tenant in writing, and (ii) unless such act or omission shall be one which is
not capable of being remedied by Landlord or such mortgage holder or lessor
within a reasonable period of time, until a reasonable period for remedying such
act or omission shall have elapsed following the giving of such notice and
following the time when such holder or lessor shall have become entitled under
such superior mortgage or superior lease, as the case may be, to remedy the same
(which reasonable period shall in no event be less than the period to which
Landlord would be entitled under this lease or otherwise, after similar notice,
to effect such remedy), provided such holder or lessor shall with due diligence
give Tenant written notice of intention to, and commence and continue to remedy
such act or omission.
7.03 If the holder of a superior mortgage shall succeed to the
rights of Landlord under this lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such xxxxx so
succeeding to Landlord's rights (herein sometimes referred to as "successor
landlord") and upon successor landlord's written agreement to accept Tenant's
attornment, Tenant shall attorn to and recognize such successor landlord as
Tenant's landlord under this lease, and shall promptly execute and deliver any
instrument that such successor landlord may reasonably request to evidence such
attornnent. Upon such attornment this lease shall continue in full force and
effect as, or as if it were, a direct lease between the successor landlord and
Tenant upon all of the terms, conditions and covenants as are set forth in this
lease and shall be applicable after such attornment except that the successor
landlord shall not:
(a) be liable for any previous act or omission of
Landlord under this lease;
(b) be subject to any offset, not expressly provided
for in this lease, which shall have theretofore accrued to Tenant against
Landlord;
(c) be bound by any previous modification of this
lease, not expressly provided for in this lease, or by any previous prepayment
of more than one month's fixed rent, unless such modification or prepayment
shall have been expressly approved in writing by the lessor of the superior
lease or the holder of the
-11-
superior mortgage through or by reason of which the successor landlord shall
have succeeded to the rights of Landlord under this lease.
7.04 The subordination of this lease to ground, overriding or
underlying leases in accordance with Section 7.01 is subject to the express
condition that, so long as this lease shall be in full force and effect in the
event of termination of the term of any such ground, overriding or underlying
lease by reentry, notice, summary proceedings or other action or proceeding or
if the term of such ground, overriding or underlying lease shall otherwise
terminate or expire before the termination or expiration of the term of this
lease, (a) Tenant shall not be made a party to any action or proceeding to
remove or evict Tenant or to disturb its possession by reason of or based upon
such termination or expiration of the term of such ground, overriding or
underlying lease, and (b) this lease shall continue in full force and effect as
a direct lease between Tenant and the then owner of the fee or lessor of such
ground, overriding or underlying lease, as the case may be, upon all of the
obligations of this lease, except that said owner or lessor shall not:
(i) be liable for any previous act or omission of
Landlord under this lease,
(ii) be subject to any offset, not expressly provided for
in the lease documents (as such term is hereinafter defined), that shall have
theretofore accrued to Tenant against Landlord,
(iii) be bound by any previous modification of this
lease, not expressly provided for in this lease, or by any previous prepayment
of more than one month's fixed rent or any additional rent then due, unless such
modification or prepayment shall have been expressly approved in writing by the
lessor of the superior lease through or by reason of which said owner or lessor
shall have succeeded to the rights of Landlord under this lease.
7.05 Landlord agrees that upon written notice from Tenant, it
will request a non-disturbance agreement for the benefit of Tenant from the
holders of any superior mortgages now existing or hereafter created during the
term of this lease. Such non-disturbance agreement shall provide, in effect,
that so long as Tenant is not in default in the payment of rent or any other
covenant or condition of this lease for longer than the respective periods
provided in Article 25 hereof and provided Tenant attorns as herein specified
(i) its rights as tenant hereunder shall not be affected or terminated, (ii) its
possession of the Demised Premises shall not be disturbed, (iii) no action or
proceeding shall be commenced to remove or evict Tenant and (iv) this lease
shall at all times continue in full force and effect notwithstanding the
foreclosure of the superior mortgage. The inability of Landlord to obtain such
non-disturbance agreement referred to in the preceding sentence shall not be
deemed a default on Landlord's part of its obligations hereunder, or impose any
claim in favor of Tenant against Landlord by reason thereof or affect the
validity of this lease.
ARTICLE 8
Quiet Enjoyment
8.01 So long as Tenant pays all of the fixed rent and
additional rent due hereunder and performs all of Tenant's other obligations
hereunder, Tenant shall peaceably and quietly have, hold and enjoy the Demised
Premises subject, nevertheless, to the obligations of this lease and, as
provided in Article 7, to the superior leases and the superior mortgages.
ARTICLE 9
Assignment And Sublettinq
9.01 Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this agreement, nor
underlet, nor suffer, nor permit the Demised Premises or any part thereof to be
used or occupied by others, without the prior written consent of Landlord in
each instance, if this lease be assigned, or if the Demised Premises or any part
thereof be underlet or occupied by anybody other than Tenant, Landlord may,
after default by Tenant, collect rent from the
-12-
assignee, undertenant or occupant, and apply the net amount collected to the
rent herein reserved, but no assignment, underletting, occupancy or collection
shall be deemed a waiver of the provisions hereof, the acceptance of the
assignee, undertenant or occupant as tenant, or a release of Tenant from the
further performance by Tenant of covenants on the part of Tenant herein
contained. The consent by Landlord to an assignment or underletting shall not in
any wise be construed to relieve Tenant from obtaining the express consent in
writing of Landlord to any further assignment or underletting. In no event shall
any permitted sublessee assign or encumber its sublease or further sublet all or
any portion of its sublet space, or otherwise suffer or permit the sublet space
or any part thereof to be used or occupied by others, without Landlord's prior
written consent in each instance.
9.02 If Tenant shall at any time or times during the term of
this lease desire to assign this lease or sublet all or part of the Demised
Premises, Tenant shall give notice thereof to Landlord, which notice shall be
accompanied by (a) a conformed or photostatic copy of the proposed assignment or
sublease, the effective or commencement date of which shall be not less than 30
nor more than 180 days after the giving of such notice, (b) a statement setting
forth in reasonable detail the identity of the proposed assignee or subtenant,
the nature of its business and its proposed use of the Demised Premises, and (c)
current financial information with respect to the proposed assignee or
subtenant, including, without limitation, its most recent financial report, if
available. Such notice shall be deemed an offer from Tenant to Landlord whereby
Landlord (or Landlord's designee) may, at its option, (i) sublease such space
(hereinafter referred to as the "Leaseback Space") from Tenant upon the terms
and conditions hereinafter set forth (if the proposed transaction is a sublease
of all or part of the Demised Premises), (ii) terminate this lease (if the
proposed transaction is an assignment or a sublease of all or substantially all
of the Demised Premises), or (iii) terminate this lease with respect to the
Leaseback Space (if the proposed transaction is a sublease of part of the
Demised Premises). Said options may be exercised by Landlord by notice to Tenant
at any time within 30 days after such notice has been given by Tenant to
Landlord; and during such 30 day period Tenant shall not assign this lease nor
sublet such space to any person.
9.03 If Landlord exercises its option to terminate this lease
in the case where Tenant desires either to assign this lease or sublet all or
substantially all of the Demised Premises, then, this lease shall end and expire
on the date that such assignment or sublet was to be effective or commence, as
the case may be, and the fixed rent and additional rent shall be paid and
apportioned to such date.
9.04 If Landlord exercises its option to terminate this lease
in part in any case where Tenant desires to sublet part of the Demised Premises,
then, (a) this Lease shall end and expire with respect to such part of the
Demised Premises on the date that the proposed sublease was to commence; (b)
from and after such date the fixed rent and additional rent shall be adjusted,
based upon the proportion that the rentable area of the Demised Premises
remaining bears to the total rentable area of the Demised Premises; and (c)
Tenant shall pay to Landlord, upon demand, the costs incurred by Landlord in
physically separating such part of the Demised Premises from the balance of the
Demised Premises and in complying with any laws and requirements of any public
authorities relating to such separation, except that, to the extent that
Landlord makes a profit from the reletting of such part of the Demised Premises
(that is, rents, additional charges and other consideration payable under and as
consideration for the execution of the new lease(s) of the Demised Premises for
what would be the balance of the term of this lease shall be greater than the
rents, additional charges and other consideration that would be payable under
this lease for the same space during such balance, had this lease not been
terminated, which is hereinafter referred to as Landlord's Reletting Profit"),
such costs shall be borne by Landlord.
9.05 If Landlord exercises its option to sublet the Leaseback
Space, such sublease to Landlord or its designee (as subtenant) shall be at the
lower of (i) the rental rate per rentable square foot of fixed rent and
additional rent then payable pursuant to this lease or (ii) the rentals set
forth in the proposed sublease, and shall be for the same term as that of the
proposed subletting, and such sublease shall:
(a) be expressly subject to all of the covenants,
agreements, terms, provisions and conditions of this lease except such as are
irrelevant or inapplicable, and except as otherwise expressly set forth to the
contrary in this Section;
-13-
(b) be upon the same terms and conditions as those
contained in the proposed sublease, except such as are irrelevant or
inapplicable and except as otherwise expressly set forth to the contrary in this
Section;
(c) give the sublessee the unqualified and
unrestricted right, without Tenant's permission, to assign such sublease or any
interest therein and/or to sublet the Leaseback Space or any part or parts of
the Leaseback Space and to make any and all changes, alterations, and
improvements in the space covered by such sublease and if the proposed sublease
will result in all or substantially all of the Demised Premises being sublet,
grant Landlord or its designee the option to extend the term of such sublease
for the balance of the term of this lease less one (1) day;
(d) provide that any assignee or further subtenant, of
Landlord or its designee, may, at the election of Landlord, be permitted to make
alterations, decorations and installations in the Leaseback Space or any part
thereof and shall also provide in substance that any such alterations,
decorations and installations in the Leaseback Space therein made by any
assignee or subtenant of Landlord or its designee may be removed, in whole or in
part, by such assignee or subtenant, at its option, prior to or upon the
expiration or other termination of such sublease provided that such assignee or
subtenant, at its expense, shall repair any damage and injury to that portion of
the Leaseback Space so sublet caused by such removal; and
(e) also provide that (i) the parties to such
sublease expressly negate any intention that any estate created under such
sublease be merged with any other estate held by either of said parties, (ii)
any assignment or subletting by Landlord or its designee (as the subtenant) may
be for any purpose or purposes that Landlord, in Landlord's uncontrolled
discretion, shall deem suitable or appropriate, (iii) Tenant, at Tenant's
expense, shall and will at all times provide and permit reasonably appropriate
means of ingress to and egress from the Leaseback Space so sublet by Tenant to
Landlord or its designee, (iv) Landlord, at Tenant's expense, may make such
alterations as may be required or deemed necessary by Landlord to physically
separate the Leaseback Space from the balance of the Demised Premises and to
comply with any laws and requirements of public authorities relating to such
separation, except that, to the extent that Landlord makes Landlord's Reletting
Profit from the reletting of the Leaseback Space, the cost of such alterations
and physical separation shall be borne by Landlord, and (v) that at the
expiration of the term of such sublease, Tenant will accept the space covered by
such sublease in its then existing condition, subject to the obligations of the
sublessee to make such repairs thereto as may be necessary to preserve the
premises demised by such sublease in good order and condition.
9.06 (a) If Landlord exercises its option to sublet the
Leaseback Space, Landlord shall indemnify and save Tenant harmless from all
obligations under this lease as to the Leaseback Space during the period of time
it is so sublet to Landlord;
(b) Performance by Landlord, or its designee, under a
sublease of the Leaseback Space shall be deemed performance by Tenant of any
similar obligation under this lease and any default under any such sublease
shall not give rise to a default under a similar obligation contained in this
Lease, nor shall Tenant be liable for any default under this lease or deemed to
be in default hereunder if such default is occasioned by or arises from any act
or omission of the Tenant under such sublease or is occasioned by or arises from
any act or omission of any occupant holding under or pursuant to any such
sublease; and
(c) Tenant shall have no obligation, at the expiration
or earlier termination of the term of this lease, to remove any alteration,
installation or improvement made in the Leaseback Space by Landlord.
9.07 In the event Landlord does not exercise an option
provided to it pursuant to Section 9.02 and providing that Tenant is not in
default of any of Tenant's obligations under this lease after notice and the
expiration of any applicable grace period, Landlord's consent (which must be in
writing and in form reasonably satisfactory to Landlord) to the proposed
assignment or sublease shall not be unreasonably withheld or delayed, provided
and upon condition that:
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(a) Tenant shall have complied with the provisions of
Section 9.02 and Landlord shall not have exercised any of its options under said
Section 9.02 within the time permitted therefor;
(b) In Landlord's reasonable judgment the proposed
assignee or subtenant is engaged in a business and the Demised Premise; or the
relevant part thereof, will be used in a manner which (i) is in keeping with the
then standards of the Building, (ii) is limited to the use expressly permitted
under this lease, and (iii) will not violate any negative covenant as to use
contained in any other lease of space in the Building;
(c) The proposed assignee or subtenant is a reputable
person of good character and with sufficient financial worth considering the
responsibility involved, and Landlord has been furnished with reasonable proof
thereof;
(d) Provided that there shall be comparable space
available, or becoming available within one (1) year, for lease in the Building,
neither (i) the proposed assignee or sublessee nor (ii) any person which,
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed assignee or sublessee or any person who controls the proposed
assignee or sublessee, is then an occupant of any part of the Building;
(e) The proposed assignee or sublessee is not a
person with whom Landlord is then negotiating to lease space in the Building;
(f) The form of the proposed lease shall be in form
reasonably satisfactory to Landlord and shall comply with the applicable
provisions of this Article;
(g) There shall not be more than three (3) subtenants
(including Landlord or its designee) of the Demised Premises other than
"Affiliates" (as such term is hereinafter defined);
(h) Deleted prior to execution.
(i) Tenant shall not have (i) advertised or publicized
in any way the availability of the Demised Premises without prior notice to and
approval by Landlord, which shall not be unreasonably withheld nor shall any
advertisement state the name (as distinguished from the address) of the Building
or the proposed rental, (ii) listed the Premises for subletting or assignment,
with a broker, agent or representative other than the then managing agent of the
Building or other agent designated by Landlord, or otherwise at a rental rate
less than the fixed rent and additional rent at which Landlord is then offering
to lease other space in the Building, and Landlord agrees, upon reasonable
notice from Tenant, to provide Tenant with such offering rental rate;
(j) The sublease shall not allow the use of the
Demised Premises or any part thereof for (i) the preparation and/or sale of food
for on or off premises consumption other than the existing kitchen in the
Demised Premises which may be used only by the subtenant(s) and its employees or
(ii) for use by a foreign or domestic governmental agency.
Except for any subletting by Tenant to Landlord or
its designee pursuant to the provisions of this
Article, each subletting pursuant to this Article
shall be subject to all of the covenants,
agreements, terms, provisions and conditions
contained in this lease. Notwithstanding any such
subletting to Landlord or any such subletting to
any other subtenant and/or acceptance of rent or
additional rent by Landlord from any subtenant,
Tenant shall and will remain fully liable for the
payment of the fixed rent and additional rent due
and to become due hereunder and for the
performance of all the covenants, agreements,
terms, provisions and conditions contained in this
lease on the part of Tenant to be performed and
all acts and omissions of any licensee or
subtenant or anyone claiming under or through any
subtenant which shall be in violation of any of
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the obligations of this lease, and any such
violation shall be deemed to be a violation by
Tenant. Tenant further agrees that notwithstanding
any such subletting, no other and further
subletting of the Premises by Tenant or any person
claiming through or under Tenant (except as
provided in Section 9.05) shall or will be made
except upon compliance with and subject to the
provisions of this Article. If Landlord shall
decline to give its consent to any proposed
assignment or sublease, or if Landlord shall
exercise any of its options under Section 9.02,
Tenant shall indemnify, defend and hold harmless
Landlord against and from any and all loss,
liability, damages, costs and expenses (including
reasonable counsel fees) resulting from any claims
that may be made against Landlord by the proposed
assignee or sublessee or by any brokers or other
persons claiming a commission or similar
compensation in connection with the proposed
assignment or sublease. If Landlord shall decline
to give its consent to any proposed assignment or
sublease and Landlord shall not have exercised any
of its options under Section 9.02, Landlord shall,
promptly after Tenant's request, provide Tenant
with a statement setting forth in reasonable
detail the reason(s) for such denial.
(k) Tenant shall reimburse Landlord on demand for any
reasonable costs that may be incurred by Landlord in connection with any
proposed assignment or sublease, including, without limitation, the costs of
making investigations as to the acceptability of the proposed assignee or
subtenant, and legal costs incurred in connection with the granting of any
requested consent.
9.08 In the event that (a) Landlord fails to exercise any of
its options under Section 9.02 and consents to a proposed assignment or
sublease, and (b) Tenant fails to execute and deliver the assignment or sublease
to which Landlord consented within 90 days after the giving of such consent,
then, Tenant shall again comply with all of the provisions and conditions of
Section 9.02 before assigning this lease or subletting all or part of the
Demised Premises.
9.09 With respect to each and every sublease or subletting
authorized by Landlord under the provisions of this lease, it is further agreed:
(a) no subletting shall be for a term ending later
than one day prior to the expiration date of this lease;
(b) no sublease shall be valid, and no subtenant shall
take possession of the Demised Premises or any part thereof, until an executed
counterpart of such sublease has been delivered to Landlord;
(c) each sublease shall provide that it is subject
and subordinate to this lease and to the matters to which this lease is or shall
be subordinate, and that in the event of termination, reentry or dispossess by
Landlord under this lease Landlord may, at its option, take over all of the
right, title and interest of Tenant, as sublessor, under such sublease, and such
subtenant shall, at Landlord's option, attorn to Landlord pursuant to the then
executory provisions of such sublease, except that Landlord shall not (i) be
liable for any previous act or omission of Tenant under such sublease, (ii) be
subject to any offset, not expressly provided in such sublease, which
theretofore accrued to such subtenant against Tenant, or (iii) be bound by any
previous modification of such sublease or by any previous prepayment of more
than one month's rent.
9.10 If the Landlord shall give its consent to any assignment
of this lease or to any sublease, Tenant shall in consideration therefor, pay to
Landlord, as additional rent:
(a) in the case of an assignment, fifty (50%) percent
of an amount equal to all sums and other considerations paid to Tenant by the
assignee for or by reason of such assignment (including, but not
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limited to, sums paid for the sale to the assignee or an affiliate thereof of
Tenant's fixtures, leasehold improvements, equipment, furniture, furnishings or
other personal property, less, in the case of a sale thereof, the then net
unamortized or undepreciated cost thereof determined on the basis of Tenant's
federal income tax returns); and
(b) in the case of a sublease, fifty (50%) percent of
any rents, additional charge or other consideration payable under the sublease
to Tenant by the subtenant which is in excess of the fixed rent and additional
rent accruing during the term of the sublease in respect of the subleased space
(at the rate per square foot payable by Tenant hereunder) pursuant to the terms
hereof (including, but not limited to, sums paid for the sale or rental to the
sublessee or an affiliate thereof of Tenant's fixtures, leasehold improvements,
equipment, furniture or other personal property, less, in the case of the sale
or rental thereof, the then net unamortized or undepreciated cost thereof
determined on the basis of Tenant's Federal income tax returns). The sums
payable under this Section 9.10(b) shall be paid to Landlord as and when payable
by the subtenant to tenant.
9.11 If Tenant is a corporation, the provisions of Section
9.01 shall apply to a transfer (by one or more transfers) of a majority of the
stock of Tenant (other than transfers of stock among Xxxxxxx X. Xxxxxxxx and his
direct lineal descendants or his or their spouses) as if such transfer of a
majority of the stock of Tenant were an assignment of this lease, but said
provisions shall not apply to transactions with any of the following entities
(an "Affiliate"): (a) a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred,
or (b) any corporation which controls or is controlled by Tenant or is under
common control with Tenant or which is controlled by Xxxxxxx X. Xxxxxxxx or his
direct lineal descendants or his or their spouses, or (c) any trust for the
benefit of Xxxxxxx X. Xxxxxxxx or his direct lineal descendants or his or their
spouses, provided that in any of such events (i) the successor to Tenant has a
net worth computed in accordance with generally accepted accounting principles
at least equal to the greater of (1) the net worth of Tenant immediately prior
to such merger, consolidation or transfer, or (2) the net worth of Tenant herein
named on the date of this lease, and (ii) proof satisfactory to Landlord of such
net worth shall have been delivered to Landlord at least 10 days prior to the
effective date of any such transaction. For purposes of this Section 9.11, with
respect to a corporation, the term "control" shall mean the ownership, or common
ownership, as the case may be, of at least 51% of the voting stock of the
corporation involved. Landlord agrees that Tenant may sublet, without obtaining
Landlord's consent, all or a portion of the Demised Premises to an Affiliate
provided that Tenant shall have complied with the provisions of Section 9.09
hereof (and the provisions of Sections 9.02 and 9.10 shall not apply thereto).
9.12 Any assignment or transfer, whether made with Landlord's
consent pursuant to Section 9.01 or without Landlord's consent pursuant to
Section 9.11, shall be made only if, and shall not be effective until, the
assignee shall execute, acknowledge and deliver to Landlord an agreement in form
and substance satisfactory to Landlord whereby the assignee shall assume the
obligations of this lease on the part of Tenant to be performed or observed and
whereby the assignee shall agree that the provisions in Section 9.01 shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect of all future assignments and transfers. The original named Tenant
covenants that, notwithstanding any assignment or transfer, whether or not in
violation of the provisions of this lease, and notwithstanding the acceptance of
fixed rent and/or additional rent by Landlord from an assignee, transferee, or
any other party, the original named Tenant shall remain fully liable for the
payment of the fixed rent and additional rent and for the other obligations of
this lease on the part of Tenant to be performed or observed.
9.13 The joint and several liability of Tenant and any
immediate or remote successor in interest of Tenant and the due performance of
the obligations of this lease on Tenant's part to be performed or observed shall
not be discharged, released or impaired in any respect by any agreement or
stipulation made by Landlord extending the time of or modifying any of the
obligations of, this lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this lease.
9.14 The listing of any name other than that of Tenant,
whether on the doors of the Premises or the Building directory, or otherwise,
shall not operate to vest any right or interest in this lease or in the
Premises,
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nor shall it be deemed to be the consent of Landlord to any assignment or
transfer of this lease or to any sublease of the Premises or to the use or
occupancy thereof by others.
ARTICLE 10
Compliance With Laws And Requirements
of
Public Authorities
10.01 Tenant shall give prompt notice to Landlord of any
notice it receives of the violation of any law or requirement of public
authority, and at its expense shall comply with all laws and requirements of
public authorities which shall, with respect to the Demised Premises or the use
and occupation thereof, or the abatement of any nuisance, impose any violation,
order or duty on Landlord or Tenant, arising from (i) Tenant's use of the
Demised Premises other than Tenant's mere occupancy of the Demised Premises for
executive and general office purposes, (ii) the manner of conduct of Tenant's
business or operation of its installations, equipment or other property therein,
(iii) any cause or condition created by or at the instance of Tenant, other than
by Landlord's performance of any work for or on behalf of Tenant, or (iv) breach
of any of Tenant's obligations hereunder. However, Tenant shall not be so
required to make any structural or other substantial change in the Demised
Premises unless the requirement arises from a cause or condition referred to in
clause (ii), (iii) or (iv) above. Furthermore, Tenant need not comply with any
such law or requirement of public authority so long as Tenant shall be
contesting the validity thereof, or the applicability thereof to the Demised
Premises, in accordance with Section 10.02. Landlord, at its expense, shall
comply with all other such laws and requirements of public authorities as shall
affect the Demised Premises, but may similarly contest the same subject to
conditions reciprocal to Subsections (a), (b) and (d) of Section 10.02.
10.02 Tenant may, at its expense (and if necessary, in the
name of but without expense to Landlord) contest, by appropriate proceedings
prosecuted diligently and in good faith, the validity, or applicability to the
Demised Premises, of any law or requirement of public authority, and Landlord
shall cooperate with Tenant in such proceedings, provided that:
(a) Landlord shall not be subject to criminal penalty
or to prosecution for a crime nor shall the Demised Premises or any part thereof
be subject to being condemned or vacated, by reason of non-compliance or
otherwise by reason of such contest;
(b) Tenant shall defend, indemnify and hold harmless
Landlord against all liability, loss or damage which Landlord shall suffer by
reason of such noncompliance or contest, including reasonable attorney's fees
and other expenses reasonably incurred by Landlord;
(c) such non-compliance or contest shall not constitute
or result in any violation of any superior lease or superior mortgage, or if
such superior lease and/or superior mortgage shall permit such non-compliance or
contest on condition of the taking of action or furnishing of security by
Landlord, such action shall be taken and such security shall be furnished at the
expense of Tenant; and
(d) Tenant shall keep Landlord advised as to the
status of such proceedings.
Without limiting the application of Subsection (a) above thereto, Landlord shall
be deemed subject to prosecution for a crime within the meaning of said
Subsection, if Landlord, or any officer of Landlord individually, is charged
with a crime of any kind or degree whatever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or such officer (as
the case may be) is required to plead or answer thereto.
ARTICLE 11
Insurance
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11.01 Tenant shall not violate, or permit the violation of,
any condition imposed by the standard fire insurance policy then issued for
office buildings in the Borough of Fort Xxx, County of Bergen, and shall not do,
or permit anything to be done, or keep or permit anything to be kept in the
Demised Premises which would subject Landlord to any liability or responsibility
for personal injury or death or property damage, or which would increase the
fire or other casualty insurance rate on the Building or the property therein
over the rate which would otherwise then be in effect (unless Tenant pays the
resulting premium as provided in Section 11.03) or which would result in
insurance companies of good standing refusing to insure the Building or any of
such property in amounts reasonably satisfactory to Landlord.
11.02 Tenant covenants to provide on or before the
Commencement Date and to keep in force during the term hereof the following
insurance coverage:
(a) for the benefit of Landlord and Tenant a
comprehensive policy of liability insurance protecting Landlord and Tenant
against any liability whatsoever occasioned by accident on or about the Demised
Premises or any appurtenances thereto. Such policy is to be written by good and
solvent insurance companies authorized to do business in the State of New Jersey
and the limits of liability thereunder shall not be less than the amount of
Three Million ($3,000,000.00) Dollars combined single limit coverage on a per
occurrence basis. Such insurance may be carried under a blanket policy covering
the Demised Premises and other locations of Tenant, if any;
(b) Fire and Extended coverage in an amount adequate
to cover the cost of replacement of all personal property, fixtures, furnishing
and equipment, including Tenant's Work located in the Demised Premises. Such
policy shall be written by good and solvent insurance companies authorized to do
business in the State of New Jersey.
Prior to the time such insurance is first required to be
carried by Tenant and thereafter, at least thirty (30) days prior to the
expiration of any such policies, Tenant agrees to deliver to Landlord either
duplicate originals of the aforesaid policies or certificates evidencing such
insurance, provided said certificate contains an endorsement that such insurance
may not be modified or cancelled except upon thirty (30) days' notice to
Landlord, together with evidence of payment for the policy. Tenant's failure to
provide and keep in force the aforementioned insurance shall be regarded as a
material default hereunder, entitling Landlord to exercise any or all of the
remedies as provided in this lease in the event of Tenant's default.
11.03 Landlord and Tenant shall each endeavor to secure an
appropriate clause in, or an endorsement upon, each fire or extended coverage
policy obtained by it and covering the Building, the Demised Premises or the
personal property, fixtures and equipment located therein or thereon, pursuant
to which the respective insurance companies waive subrogation or permit the
insured, prior to any loss, to agree with a third party to waive any claim it
might have against said third party. The waiver of subrogation or permission for
waiver of any claim hereinbefore referred to shall extend to the agents of each
party and its employees and, in the case of Tenant, shall also extend to all
other persons and entities occupying or using the Demised Premises in accordance
with the terms of this lease. If and to the extent that such waiver or
permission can be obtained only upon payment of an additional charge then,
except as provided in the following two paragraphs, the party benefitting from
the waiver or permission shall pay such charge upon demand, or shall be deemed
to have agreed that the party obtaining the insurance coverage in question shall
be free of any further obligations under the provisions hereof relating to such
waiver or permission.
In the event that Landlord shall be unable at any time to
obtain one of the provisions referred to above in any of its insurance policies,
at Tenant's option Landlord shall cause Tenant to be named in such policy or
policies as one of the assured, but if any additional premium shall be imposed
for the inclusion of Tenant as such as assured, Tenant shall pay such additional
premium upon demand. In the event that Tenant shall have been named as one of
the assured in any of Landlord's policies in accordance with the foregoing,
Tenant shall endorse promptly to the order of Landlord, without recourse, any
check, draft or order for the payment of money representing the proceeds of any
such policy or any other payment growing out of or connected with said policy
and Tenant hereby irrevocably waives any and all rights in and to such proceeds
and payments.
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In the event that Tenant shall be unable at any time to obtain
one of the provisions referred to above in any of its insurance policies, Tenant
shall cause Landlord to be named in such policy or policies as one of the
assured, but if any additional premium shall be imposed for the inclusion of
Landlord as such an assured, Landlord shall pay such additional premium upon
demand or Tenant shall be excused from its obligations under this paragraph with
respect to the insurance policy or policies for which such additional premiums
would be imposed. In the event that Landlord shall have been named as one of the
assured in any of Tenant's policies in accordance with the foregoing, Landlord
shall endorse promptly to the order of Tenant, without recourse, any check,
draft or order for the payment of money representing the proceeds of any such
policy or any other payment growing out of or connected with said policy and
Landlord hereby irrevocably waives any and all rights in and to such proceeds
and payments.
Subject to the foregoing provisions of this Section 11.03, and
insofar as may be permitted by the terms of the insurance policies carried by
it, each party hereby releases the other with respect to any claim (including a
claim for negligence) which it might otherwise have against the other party for
loss, damages or destruction with respect to its property by fire or other
casualty (including rental value or business interruption, as the case may be)
occurring during the term of this lease.
11.04 If, by reason of a failure of Tenant to comply with the
provisions of Section 10.01 or Section 11.01, the rate of fire insurance with
extended coverage on the Building or equipment or other property of Landlord
shall be higher than it otherwise would be, Tenant shall reimburse Landlord, on
demand, for that part of the premiums for fire insurance and extended coverage
paid by Landlord because of such failure on the part of Tenant.
11.05 If any dispute shall arise between Landlord and Tenant
with respect to the incurrence or amount of any additional insurance premium
referred to in Section 11.03, the dispute shall be determined by arbitration.
11.06 A schedule or makeup of rates for the Building or the
Demised Premises, as the case may be, issued by the New Jersey Fire Insurance
Rating Organization or other similar body making rates for fire insurance and
extended coverage for the premises concerned, shall be conclusive evidence of
the facts therein stated and of the several items and charges in the fire
insurance rate with extended coverage then applicable to such premises.
ARTICLE 12
Rules And Regulations
12.01 Tenant and its employees and agents shall faithfully
observe and comply with the Rules and Regulations annexed hereto as Exhibit D,
and such reasonable changes therein (whether by modification, elimination or
addition) as Landlord at any time or times hereafter may make and communicate in
writing to Tenant, which do not unreasonably affect the conduct of Tenant's
business in the Demised Premises except as required by any governmental law,
rule, regulation, ordinance or similar decree; provided, however, that in case
of any conflict or inconsistency between the provisions of this lease and any of
the Rules and Regulations as originally promulgated or as changed, the
provisions of this lease shall control.
12.02 Nothing in this lease contained shall be construed to
impose upon Landlord any duty or obligation to Tenant to enforce the Rules and
Regulations or the terms, covenants or conditions in any other lease, as against
any other tenant, and Landlord shall not be liable to Tenant for violation of
the same by any other tenant or its employees, agents or visitors. However,
Landlord shall not enforce any of the Rules and Regulations in such manner as to
discriminate against Tenant or anyone claiming under or through Tenant.
ARTICLE 13
Tenant's Changes
13.01 Tenant may from time to time during the term of this
lease, at its expense, make such other alterations, additions, installations,
substitutions, improvements and decorations (hereinafter collectively referred
to as "changes" and, as applied to changes provided for in this Article,
"Tenant's Changes") in and to the Demised Premises,
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excluding structural changes, as Tenant may reasonably consider necessary for
the conduct of its business in the Demised Premises, on the following
conditions:
(a) the outside appearance or the strength of the
Building or of any of its structural parts shall not be affected;
(b) no part of the Building outside of the Demised
Premises shall be physically affected;
(c) the proper functioning of any of the mechanical,
electrical, sanitary and other service systems of the Building shall not be
adversely affected or the usage of such systems by Tenant shall not be
increased;
(d) in performing the work involved in making such
changes, Tenant shall be bound by and observe all of the conditions and
covenants contained in the following Sections of this Article;
(e) before proceeding with any Tenant's Changes,
Tenant will advise Landlord thereof and shall submit to Landlord proof
reasonably satisfactory of the cost thereof and shall submit the names of the
contractors or subcontractors who will be performing Tenant's Changes for
Landlord's approval, which approval shall not be unreasonably withheld or
delayed. Additionally, before proceeding with any Tenant's Changes, Tenant shall
submit to Landlord plans and specifications and all changes and revisions
thereto, for the work to be done for Landlord's approval and Tenant shall, upon
demand of Landlord, pay to Landlord the reasonable costs incurred by Landlord
for the review of such plans and specifications and all changes and revisions
thereto by its architect, engineer and other consultants. Landlord may as a
condition of its approval require Tenant to make revisions in and to the plans
and specifications and to post a bond or other security reasonably satisfactory
to Landlord to insure the completion of such change. Notwithstanding the
foregoing, Landlord's approval of plans and specifications shall not be required
in connection with any non-structural change, the estimated cost of which, in
the aggregate, does not exceed $25,000.00 (exclusive of the costs of decorating
work and items constituting Tenant's Property, as defined in Article 14, and any
architect's and engineer's fees).
13.02 Tenant, at its expense, shall obtain all necessary
governmental permits and certificates for the commencement and prosecution of
Tenant's Changes and for final approval thereof upon completion and shall
furnish copies thereof to Landlord, and shall cause Tenant's Changes to be
performed in compliance therewith and with all applicable laws and requirements
of public authorities, and with all applicable requirements of insurance bodies,
and in good and workmanlike manner, using new materials and equipment at least
equal in quality and class to the original installations in the Building.
Tenant's Changes shall be performed in such manner as not to unreasonably
interfere with or delay and (unless Tenant shall indemnify Landlord therefor to
the latter's reasonable satisfaction) as not to impose any additional expense
upon, Landlord in the construction, maintenance or operation of the Building or
any portion thereof. Throughout the performance of Tenant's Changes, Tenant, at
its expense, shall carry, or cause to be carried, workmen's compensation
insurance in statutory limits and general liability insurance for any occurrence
in or about the Building as set forth in Section 11.02 hereof, in which Landlord
and its agents shall be named as parties insured, in such limits as Landlord may
reasonably prescribe, with insurers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with satisfactory evidence that such insurance is in
effect at or before the commencement of Tenant's Changes and, on request, at
reasonable intervals thereafter during the continuance of Tenant's Changes. If
any of Tenant's Changes shall involve the removal of any fixtures, equipment or
other property in the Demised Premises which are not Tenant's Property (as
defined in Article 14), such fixtures, equipment or other property shall be
promptly replaced, at Tenant's expense, with new fixtures, equipment or other
property (as the case may be) of like utility and at least equal value unless
Landlord shall otherwise expressly consent in writing and Tenant shall, upon
Landlord's request, store and preserve, at Tenant's sole cost and expense, any
such fixtures, equipment or property so removed and shall return same to
Landlord upon the expiration or sooner termination of this lease. All electrical
and plumbing work in connection with Tenant's changes shall be performed by
contractors or subcontractors licensed therefor by all governmental agencies
having or asserting jurisdiction. Upon the completion of Tenant's Changes,
Tenant shall furnish to Landlord a complete set of "as built" plans and
specifications.
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13.03 Tenant, at its expense, and with diligence and dispatch,
shall procure the cancellation or discharge of all notices of violation arising
from or otherwise connected with Tenant's Changes which shall be issued by the
Department of Buildings or any other public or quasi-public authority having or
asserting jurisdiction. Tenant shall defend, indemnify and save harmless
Landlord against any and all mechanic's and other liens filed in connection with
Tenant's Changes, including the liens of any security interest in, conditional
sales of, or chattel mortgages upon, any materials, fixtures or articles so
installed in and constituting part of the Demised Premises and against all
costs, expense and liabilities incurred in connection with any such lien,
security interest, conditional sale or chattel mortgage or any action or
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within fifteen (15) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Section 10.02.
13.04 Tenant agrees that the exercise of its rights pursuant
to the provisions of this Article 13 or any other provision of this lease shall
not be done in a manner which would create any work stoppage, picketing, labor
disruption or dispute or violate Landlord's union contracts affecting the Land
and/or Building nor interference with the business of Landlord or any Tenant or
occupant of the Building. In the event of the occurrence of any condition
described above arising from the exercise by Tenant of its right pursuant to the
provisions of this Article 13 or any other provision of this lease, Tenant
shall, immediately upon notice from Landlord, cease the manner of exercise of
such right giving rise to such condition. In the event Tenant fails to cease
such manner of exercise of its rights as aforesaid, Landlord, in addition to any
rights available to it under this lease and pursuant to law, shall have the
right to injunction without notice. With respect to Tenant's Changes, Tenant
shall make all arrangements for, and pay all expenses incurred in connection
with, use of the freight elevators servicing the Demised Premises.
ARTICLE 14
Tenant's Property
14.01 All fixtures, equipment, improvements and appurtenances
attached to or built into the Demised Premises at the commencement of or during
the term of this lease, whether or not by or at the expense of
Tenant, shall be and remain a part of the Demised Premises, shall be deemed the
property of Landlord and shall not be removed by Tenant, except as hereinafter
in this Article expressly provided.
14.02 All paneling, movable partitions, lighting fixtures,
special cabinet work, other business and trade fixtures, machinery and
equipment, communications equipment and office equipment, whether or not
attached to or built into the Demised Premises, which are installed in the
Demised Premises by or for the account of Tenant, without expense to Landlord,
and can be removed without permanent structural damage to the Building, and all
furniture, furnishings and other articles of movable personal property owned by
Tenant and located in the Demised Premises, all of which are sometimes referred
to as "Tenant's Property", shall be and shall remain the property of Tenant and
may be removed by it at any time during the term of this lease; provided that if
any of Tenant's Property is removed, Tenant or any party or person entitled to
remove same shall repair or pay the cost of repairing any damage to the Demised
Premises or to the Building resulting from such removal. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
or which has replaced such items originally provided by Landlord at Landlord's
expense shall not be deemed to have been installed by or for the account of
Tenant, without expense to Landlord, and shall not be considered Tenant's
Property.
14.03 At or before the Expiration Date, or the date of any
earlier termination of this lease, or as promptly as practicable after such an
earlier termination date, Tenant at its expense, shall remove from the Demised
Premises all of Tenant's Property except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord, and shall fully repair any damage to the Demised Premises
or the Building resulting from such removal. Tenant's obligation herein shall
survive the termination of the lease. Tenant shall not be required to remove
pipes, wires and the like from the walls, ceilings or floors, provided that
Tenant properly cuts, disconnects and caps such pipes and wires and seals them
off, if necessary, in a safe and lawful manner.
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14.04 Any other items of Tenant's Property (except money,
securities and other like valuables) which shall remain in the Demised Premises
after the Expiration Date or after a period of fifteen (15) days following an
earlier termination date, may, at the option of the Landlord, be deemed to have
been abandoned, and in such case either may be retained by Landlord as its
property or may be disposed of, without accountability, at Tenant's expense in
such manner as Landlord may see fit.
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ARTICLE 15
Repairs And Maintenance
15.01 Tenant shall take good care of the Demised Premises,
provided, however, that such obligation shall not be deemed to require Tenant to
make any repairs other than those set forth in this Section 15.01. Tenant, at
its expense, shall promptly make all repairs, ordinary or extraordinary,
interior or exterior, structural or otherwise, in and about the Demised Premises
and the Building as shall be required by reason of (i) the performance or
existence of Tenant's Work not performed by Landlord or Tenant's Changes, (ii)
the installation, use or operation of Tenant's Property in the Demised Premises,
(iii) the moving of Tenant's Property in or out of the Building, or (iv) the
misuse or neglect of Tenant or any of its employees, agents or contractors; but
Tenant shall not be responsible for any of such repairs as are required by
reason of Landlord's neglect or other fault in the manner of performing any of
Tenant's Work or Tenant's Changes which may be undertaken by Landlord for
Tenant's account or are otherwise required by reason of neglect or other fault
of Landlord or its employees, agents or contractors. Except if required by the
neglect or other fault of Landlord or its employees, agents or contractors,
Tenant, at its expense, shall replace all scratched, damaged or broken doors or
other glass (other than exterior windows) in or about the Demised Premises and
shall be responsible for all repairs, maintenance and replacement of wall and
floor coverings in the Demised Premises and, for the repair and maintenance of
all lighting fixtures therein.
15.02 (a) Landlord, at its expense, shall keep and maintain
the Building and its fixtures, appurtenances, systems, exterior windows and
facilities serving the Demised Premises, in good working order, condition and
repair and shall make all repairs, structural and otherwise, interior and
exterior, as and when needed in or about the Demised Premises, except for those
repairs for which Tenant is responsible pursuant to any other provisions of this
lease.
(b) During the first (1st) year of the term of this
lease, Landlord at its expense, shall promptly make all repairs, in and about
the Demised Premises as shall be required by reason of any defects in the
performance or existence of Landlord's Work, or Tenant's Work performed by
Landlord, unless such defect or any damage is caused by reason of the negligence
or acts of Tenant or its agents, employees, contractors, guests or invitees.
15.03 Except as expressly otherwise provided in this lease,
Landlord shall have no liability to Tenant by reason of any inconvenience,
annoyance, interruption or injury to business arising from Landlord's making any
repairs or changes which Landlord is required or permitted by this lease, or
required by law, to make in or to any portion of the Building or the Demised
Premises, or in or to the fixtures, equipment or appurtenances of the Building
or the Demised Premises, provided that Landlord shall use due diligence with
respect thereto and shall perform such work, except in case of emergency, at
times reasonably convenient to Tenant and otherwise in such manner as will not
materially interfere with Tenant's use of the Demised Premises provided that
Landlord shall use reasonable efforts to effect such repairs or changes promptly
and in such manner as to minimize such inconvenience, annoyance, interruption or
injury to Tenant's business.
ARTICLE 16
Electricity
16.01 Subject to the terms of Section 16.03, Landlord shall
furnish electrical service to the Demised Premises during business hours (i.e.,
8:00 A.M. to 6:00 P.M. on Mondays through Fridays, except such days as are
observed by the State or Federal government as legal holidays and those days
designated as holidays by the applicable Building service union employees
contract) and subject to the terms of Sections 16.04 and 16.06, during other
than business hours, for lighting the same and for the operation of office
equipment installed or used in the Demised Premises as part of Tenant's initial
installations approved by Landlord (even if installed within a reasonable period
of time after the Commencement Date). Except as provided to the contrary in
Sections 16.04, 16.06, 16.07, 16.08 and 16.09 of this Article, such electrical
service shall be furnished without specific measurement, on any meter or
otherwise, and without additional specific charge to Tenant, the charge for the
furnishing of such electrical service being included
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in the fixed rent reserved under this lease, subject to adjustment as provided
in Section 16.04 of this Article. Notwithstanding the foregoing, however, Tenant
agrees that Landlord shall not in anywise be liable or responsible to Tenant for
any loss, damage or expense that Tenant may sustain or incur if either the
quantity or character of electrical service is changed, is no longer available,
or is unsuitable for Tenant's requirements, provided that such loss, damage or
expense is not caused by Landlord's willful acts. At Landlord's option, Tenant
shall purchase from Landlord or its agent all lamps, starters, ballasts, or
bulbs used in the Demised Premises, provided that the charges for such items are
comparable to charges for similar items in similar buildings in the vicinity in
which the Building is located.
16.02 Tenant covenants and agrees that, at all times, its use
of electric current shall never exceed the capacity of the feeders to the
Building or the risers or wiring installation thereof. In connection therewith,
Tenant expressly agrees that all installations, alterations and additions of and
to the electrical fixtures, appliances, or equipment within the Demised
Premises, other than Tenant's initial installation as approved by Landlord and
the replacement of office and lighting equipment using small amounts of
electricity (such as typewriters, calculators, desk or floor lamps and
dictaphone machines) with similar office equipment using comparable amounts of
electric energy, shall be subject to Landlord's prior written approval, and, if
such approval shall be given (or expressly not required as provided above),
rigid conduit only shall be permitted. If, in connection with any request for
such approval, Landlord shall, in its sole judgment, determine that the risers
of the Building servicing the Demised Premises shall be insufficient to supply
Tenant's electrical requirements with respect thereto, Landlord shall, at the
sole cost and expense of Tenant, install any additional feeder(s) that Landlord
shall deem necessary with respect thereto, provided, however, that, if Landlord
shall determine, in its sole judgment, that the same will cause permanent damage
or injury to the Building or to the Demised Premises, cause or create a
dangerous or hazardous condition, entail excessive or unreasonable alterations,
repairs, or expense, or interfere with, or disturb, the other tenants or
occupants of the Building, then Landlord shall not be obligated to make such
installation, and Tenant shall not make the installation, alteration, or
addition with respect to which Tenant requested Landlord's consent. In addition
to the installation of such riser or risers, Landlord will also, at the sole
cost and expense of Tenant, install all other equipment necessary and proper in
connection therewith, subject to the aforesaid terms and conditions. All of the
aforesaid costs and expenses are chargeable and collectible as additional rent,
and shall be paid by Tenant to Landlord within five (5) days after rendition of
any xxxx or statement to Tenant therefor.
16.03 Provided that (a) it is physically possible for Tenant
to receive electric current in the Demised Premises directly from the public
utility company serving the area in which the Building is located and (b) the
discontinuance of electrical service by Landlord will not cause a material
interruption in electrical service to Tenant during business hours (unless, with
respect to Subdivision (b) hereof, discontinuance of electrical service as
aforesaid is required by law or other regulation or requirement of any
governmental or quasi-governmental authority having jurisdiction thereof
("Requirements") and, in such event, Landlord shall use reasonable diligence to
effectuate such discontinuance in such a manner as to minimize inconvenience,
annoyance, interruption or injury to Tenant's business), Landlord may
discontinue the aforesaid service upon thirty (30) days' notice to Tenant
without being liable to Tenant therefor and without in any way affecting this
lease or the liability of Tenant hereunder, and the same shall not be deemed to
be a lessening or diminution of services within the meaning of any law, rule, or
regulation now or hereafter enacted, promulgated, or issued. In the event that
Landlord gives such notice of discontinuance, Landlord shall permit Tenant to
receive such service directly from such public utility company and shall permit
Landlord's wires and conduits, to the extent available, suitable and safely
capable, to be used for such purpose. Any additional wires, conduits, or other
equipment necessary and proper in connection therewith shall be installed by
Landlord in accordance with the terms of, and subject to the conditions
contained in, Section 16.02 of this Article, except that Landlord shall pay for
same, and Tenant agrees that Landlord's cost therefor may be included in
Operating Expenses as a capital improvement that is included in Operating
Expenses as provided in Section 5.07(a) of this lease. In the event that
Landlord exercises its rights under this Section 16.03, then: (i) Tenant shall
contract for such electrical service directly with the said public utility for
all of Tenant's electric current requirements and (ii) as of the date upon which
Landlord discontinues furnishing electric current to Tenant, (a) the fixed rent
reserved under this lease shall be reduced by $22,731.00 (as such amount may
have been previously increased in accordance with the provisions of Sections
16.04 and 16.05 of this Article) and (b) any Increased Usage Charge (as such
term is defined in Section 16.06 of this Article) shall be discontinued. The
amount set forth in Subsubdivision (a) of Subdivision (ii) above is hereinafter
called the Initial Electricity factor, and the said amount, as the same may,
from time to time hereafter, be increased pursuant to the terms of Sections
16.04 and 16.05 of this Article, is hereinafter called the Electricity Factor.
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16.04 After the Commencement Date, Landlord's Consultant (as
such term is defined in Section 16.06 of this Article) shall have the right to
make a survey hereinafter called the Initial Survey) of the Demised Premises,
which shall include all of Tenant's initial installations approved by Landlord
(even if installed within a reasonable period of time after the Commencement
Date) of fixtures, appliances or equipment in the Demised Premises, indicating
the lighting load, office equipment and electrical usage of Tenant (whether or
not during business hours) as of the date of the Initial Survey and shall
specifically exclude any electrical usage of Tenant for the Supplemental Air
Conditioning System (as such term is defined in Article 39 hereof). Based upon
the Initial Survey, Landlord's Consultant shall compute the value to Tenant of
the estimated electrical service to be furnished to Tenant for the succeeding
twelve (12) month period (hereinafter called the Initial Electrical Value),
which computation shall be made utilizing the higher of (i) the service
classification under which Landlord is billed by the utility company for such
electrical service or (ii) the service classification under which Tenant would
be billed by the utility company if Tenant purchased such electrical service
directly from such utility company. Landlord's Consultant shall notify Landlord
and Tenant of this computation of the Initial Electrical Value (which shall be
binding upon both parties). Regardless of the result of the Initial Survey,
there shall be no adjustment in the fixed rent herein reserved and the
Electricity factor; the Initial Electrical Value shall be used as a base against
which any Subsequent Survey (as such term is hereinafter defined) shall be
compared.
16.05 If the public utility rate schedule for the supply of
electric current to the Building shall be increased, if any surcharge
(including, without limitation, a surcharge of the nature of a fuel or other
adjustment) with respect thereto shall be imposed or increased and/or if the
service classification for the Building shall be changed so as to result in an
increase in Landlord's cost of purchasing electricity for the Building during
the term of this lease, the fixed rent herein reserved and Electricity Factor
shall each be adjusted to reflect the resulting increase by adding thereto an
amount equal to the product of (i) the then current Electricity Factor,
multiplied by (ii) the percentage of increase in Landlord's cost of purchasing
electricity for the Building. Any such percentage increase in Landlord's cost of
purchasing electricity for the Building shall be computed by the application of
the average consumption (energy and demand) of electricity for the entire
Building for the twelve (12) full months immediately prior to the rate increase
and/or service classification change to the new rate and/or service
classification. When the amount of the increase in the fixed rent and the
Electricity Factor is determined, the parties shall execute an agreement
supplementary hereto to reflect such increase, which shall be effective from the
effective date of such increase in the public utility rate schedule and/or such
change in the service classification for the Building; but such increase in the
fixed rent and in the Electricity Factor shall be effective from such date
whether or not such a supplementary agreement is executed. In addition, if any
tax is imposed upon Landlord by any Municipal, State, or Federal Agency with
respect to the purchase, sale, or resale of electrical energy supplied to Tenant
hereunder, Tenant covenants and agrees that, where permitted by law, Tenant's
pro rata share of such taxes shall be passed on to, included in the xxxx of and
paid by Tenant to Landlord.
16.06 Tenant shall not, without prior written notice to
Landlord in each instance, connect any fixtures, appliances, or equipment (in
addition to those installed as part of Tenant's initial installation approved by
Landlord (even if installed within a reasonable period of time after the
Commencement Date) and shown on the Initial Survey) to the Building electric
distribution system, or make any alteration or addition to the electric system
of the Demised Premises, that shall result in Increased Usage (as such term is
hereinafter defined) except for the replacement of small office equipment which
will not require Landlord's consent or approval. In the event that Tenant (i)
installs equipment, increases the lighting load beyond the amount thereof on the
date of the Initial Survey, or (ii) operates during longer than business hours
in excess of that shown on the Initial Survey, or (iii) installs a Supplemental
Air Conditioning System (the foregoing are herein collectively called the
"Increased Usage"), Tenant shall pay to Landlord, as additional rent hereunder
payable on a monthly basis together with the fixed rent herein reserved, an
amount to be computed as hereafter provided and subject to adjustment as set
forth in Section 16.07 of this Article. If Landlord is of the opinion that
Increased Usage exists, Landlord shall engage an independent electrical engineer
or electrical consulting firm (hereinafter called Landlord's Consultant") who
shall make a survey (hereinafter called the "Subsequent Survey") of the Demised
Premises, indicating the lighting load, office equipment and electrical usage of
Tenant as of the date of the Subsequent Survey, and shall compute the monthly
amount (hereinafter called the "Increased Usage Charge") to be paid by Tenant
for the furnishing of Increased Usage as a service by Landlord in excess of the
usage shown on the Initial Survey. Landlord's Consultant shall base his
computations on value to Tenant of the estimated Increased Usage to be furnished
to Tenant for the succeeding twelve (12) month period, and such computation
shall be made
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utilizing the higher of (i) the service classification under which Landlord is
billed by the utility company for such electrical service or (ii) the service
classification under which Tenant would be billed by the utility company if
Tenant purchased such electrical service directly from such utility company.
Landlord's Consultant shall notify Landlord and Tenant of his computation of the
Increased Usage Charge (which shall be binding upon both parties). The fees of
Landlord's Consultant shall be borne by Landlord and Tenant equally. Tenant
shall have the right as hereinafter provided, to contest any amounts determined
by Landlord's Consultant as shall be due to Landlord as a result of Increased
Service based upon a Subsequent Survey. In the event that Tenant fails to send a
written notice (the "Objection Notice") to Landlord within thirty (30) days
after Tenant's receipt of a written notice containing the amount of the
Increased Usage Charge (the "Increase Notice"), such notice shall become
conclusive and binding upon Tenant. If Tenant disputes any Increase Notice by
sending an Objection Notice within the time and in the manner hereinbefore
provided, then Tenant shall, at its sole cost and expense, have the right to
engage an electrical engineer or electrical consulting firm (the "Tenant's
Consultant") who shall promptly make a survey (the "Disputing Survey"),
indicating Tenant's electrical usage in the Demised Premises. In the event that
Landlord and Tenant are unable to agree on the increase, with respect to the
Increase Notice within thirty (30) days after the date Tenant furnishes Landlord
with a copy of the Disputing Survey, then Landlord's Consultant and Tenant's
Consultant shall select a mutually acceptable electrical engineer or electrical
consulting firm (the "Third Consultant") within ten (10) days after the
expiration of such thirty (30) day period.
Landlord's Consultant and Tenant's Consultant shall submit the dispute to the
Third Consultant and the determination of any such increased electrical energy
charge, by the Third Consultant shall be conclusive and binding upon Landlord
and Tenant. During the pendency of any such dispute, Tenant shall pay to
Landlord the amount set forth in the Increase Notice until the dispute is
finally determined in accordance with the provisions of this Section and, in the
event that such final determination is less than the amount set forth in the
Increase Notice, Landlord shall, at Tenant's election, refund to Tenant the
amount of such excess payment or credit any such excess against any amounts then
due or becoming due to Landlord under this lease. The cost of the Third
Consultant shall be borne equally by Landlord and Tenant.
16.07 After the same shall be determined pursuant to the terms
of Section 16.06 of this Article, the Increased Usage Charge shall continue to
be paid on a monthly basis until Landlord's Consultant determines in a
Subsequent Survey that there has been a further increase or a decrease in the
Increased Usage. The amount of the Increased Usage Charge may be appropriately
increased or decreased at any time and from time to time throughout the term of
this lease to reflect a change in the rates charged by the utility company
servicing the Building (including, without limitation, a change in any taxes
assessed, levied, or imposed with respect to such electrical service) in
accordance with the provisions of Section 16.05 of this Article.
16.08 For purposes of Sections 16.08, 16.09 and 16.10 of this
Article:
(i) "Usage" shall mean actual usage of electricity as
measured by the metering system described in Section 16.09 for each calendar
month or such other period as Landlord shall determine during the term of this
lease and shall include the quantity and peak demand (kilowatt hours and
kilowatts) and all applicable taxes, surcharges, demand charges, energy charges,
fuel adjustment charges, time of day charges and other adjustments made from
time to time by the public utility company supplying electric current to the
Building or any governmental authority having jurisdiction;
(ii) "Landlord's Rate" shall mean the service
classification (including all applicable taxes, surcharges, demand charges,
energy charges, fuel adjustment charges, time of day charges and other sums
payable in respect thereof) pursuant to which Landlord purchases electric
current for the Building from the public utility company supplying electric
current to the Building;
(iii) "Basic Cost" shall mean the product of (a)
Usage multiplied by (b) Landlord's Rate.
(iv) "Tenant's Cost" shall mean an amount equal to
the sum of (a) the Basic Cost plus (b) ten (10%) percent of the Basic Cost for
Landlord's overhead and expenses in connection with submetering.
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16.09 Landlord shall have the option (hereinafter called the
"Submetering Option"), which shall be exercisable in its sole discretion and
upon thirty (30) days' notice to Tenant given at any time during the term of
this lease, to discontinue charging for electric current on a rent inclusion
basis and, instead, to charge for electric current as hereinafter provided as
additional rent. If Landlord exercises the Submetering Option, then (i) Landlord
shall, at its sole cost and expense, install a meter or meters for the purpose
of measuring the electric current consumed in the Demised Premises provided,
however, that at no time shall Landlord thereby cause a material interruption in
electric service to Tenant during business hours, and (ii) as of the date
(hereinafter called the "Conversion Date") upon which Landlord discontinues
charging Tenant for electric current on a rent inclusion basis, (a) the fixed
rent reserved under this lease shall be reduced by the then current Electricity
Factor and (b) any Increased Usage Charge shall be discontinued. With respect to
the Demised Premises and/or any portion(s) thereof that are not contiguous with
the balance of the same, if the same shall constitute less than a full floor of
the Building, Landlord may, at its option, either (x) install a meter to measure
the amount of Usage with respect solely to the Demised Premises and/or to such
portion(s) or (y) measure the amount of Usage with respect thereto through
common meter(s). After the Conversion Date, Landlord shall, from time to time,
furnish Tenant with a statement indicating the appropriate period during which
the Usage was measured and the amount of Tenant's Cost payable by Tenant to
Landlord for furnishing electrical current. Within five (5) days after receipt
of each such statement, Tenant shall pay the amount of Tenant's Cost set forth
thereon to Landlord as additional rent. In addition, if any tax is imposed upon
Landlord by any municipal, state or Federal agency or subdivision with respect
to the purchase, sale or resale of electrical energy supplied to Tenant
hereunder, Tenant covenants and agrees that, where permitted by law, Tenant's
Proportionate Share of such taxes shall be passed on to, included in the xxxx to
and paid by, Tenant to Landlord, as additional rent.
16.10 (i) With respect to any meter system which shall measure
more than one (1) tenant's electrical consumption (hereinafter referred to as a
"Multi-Tenant Meter"), Tenant shall pay its pro rata share (which, together with
any recomputations thereof based upon a "Recomputation Notice" as provided in
this Subdivision (i) or a "Survey" as provided in Subdivision (ii), is
hereinafter referred to as "Tenant's Pro Rata Share") of the Usage measured by
such Multi-Tenant Meter. Tenant's Pro-Rats Share shall be expressed as a
percentage and shall be computed on the basis of a fraction, the numerator of
which shall be the Multiplication Factor and the denominator of which shall be
the total square foot area of the space occupied by tenants whose electrical
consumption is measured by such Multi-Tenant Meter (hereinafter referred to as
the "Shared Meter Space"). Landlord, using the formula set forth above, shall
compute Tenant's Pro Rata Share as of the Conversion Date. Landlord shall
recompute Tenant's Pro Rata Share after a change in occupancy in the Shared
Meter Space occurs, and shall send Tenant notice thereof (such notice and the
notice of a new Tenant's Pro Rata Share based upon a new Survey as provided in
Subdivision (ii) of this Section 16.10 are hereinafter referred to as a
"Recomputation Notice"), such recomputation to be retroactive to the date of
such change in occupancy. Tenant's Pro-Rata Share shall be payable by Tenant as
additional rent within ten (10) days after the rendition by Landlord of bills
therefor.
(ii) In the event that at any time Tenant or any other
tenant of the Shared Meter Space (thereinafter referred to as the "Disputing
Tenant") shall dispute the accuracy of its pro rata share as so computed by
Landlord, the Disputing Tenant shall have the right, at the Disputing Tenant's
sole cost and expense, to make a survey (hereinafter referred to as the
"Survey") of electrical usage in the space leased to all tenants of the Shared
Meter Space using an independent electrical engineer (hereinafter referred to as
the "Surveyor") acceptable to all tenants of the Shared Meter Space. The
Surveyor shall compute the pro rata share of each of the tenants of the Shared
Meter Space, provided, however, that the aggregate pro rata shares of all
tenants of the Shared Meter Space as so computed shall in no event be less than
100%. The Survey shall be conclusive and binding upon all tenants of the Shared
Meter Space. Until completion of the first Survey made pursuant to this
Subdivision (ii) and receipt thereof by Tenant, Tenant shall continue to pay
Tenant's Pro Rata Share as determined by Landlord, and Landlord shall not be
required to retroactively adjust any amount paid by Tenant prior to the date of
the completion of the first Survey. After completion of a Survey and receipt
thereof by Tenant, all tenants of the Shared Meter Space shall, effective as of
the date of the Survey, and continuing thereafter until completion of a new
Survey and receipt thereof by Tenant (or the receipt by Tenant of a
Recomputation Notice as provided in Subdivision (i) above), pay their pro rata
share based on the Survey retroactively adjusted to the date of the Survey.
Tenant shall cooperate with any Disputing Tenant and the Surveyor in the making
of the Survey. In the event the tenants of the Shared Meter Space are unable to
agree upon a Surveyor, upon request
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of any Disputing Tenant, Landlord shall designate a Surveyor to make the Survey.
In no event shall Landlord have any liability or responsibility with respect to
the accuracy of any survey or the fees of the Surveyor.
ARTICLE 17
Heat, Ventilation And Air Conditioning
17.01 Landlord, at its expense, shall maintain and
operate the heating, ventilating and Air Conditioning systems (hereafter
referred to as the "systems") and, subject to energy conservation requirements
of governmental authorities, shall furnish heat, ventilating and Air
Conditioning (hereinafter collectively referred to as the "air-conditioning
service") in the Demised Premises through the systems, which shall be in
compliance with the performance specifications of the systems installed by
Landlord in the Building. Air Conditioning shall be provided from May 15 through
October 15 during "regular hours" (that is between the hours of 8:00 A.M. and
6:00 P.M.) of "business days" (which term is used herein to mean all days except
Saturdays, Sundays and days now or hereafter observed by the Federal or New
Jersey State government as legal holidays and those now or hereafter designated
by the applicable Building service union employees service contract or by the
applicable Operating Engineers contract (collectively "holidays") throughout the
year. Heating and ventilation shall be provided during other periods of the year
as may be required for comfortable occupancy of the Demised Premises during
regular hours of business days. If Tenant shall require heating, ventilating or
Air Conditioning service at any other time (hereinafter referred to as "after
hours), Landlord shall furnish such after hours service upon reasonable advance
notice from Tenant, and Tenant shall pay on demand Landlord's cost plus fifteen
(15%) percent. In the event the after hours service is shared by other tenants,
the cost thereof shall be prorated among all such tenants. Notwithstanding
anything in the foregoing to the contrary, after hours Air Conditioning service
may only be requested from May 15 through October 15. Anything contained in this
Section 17.01 to the contrary notwithstanding, Landlord agrees that upon not
less than forty-eight (48) hours prior notice, it shall provide Tenant with Air
Conditioning service on not more than five (5) Sundays during any calendar year
from 9:00 a.m. to 1:00 p.m. ("Tenant's Limited Special Hours") and that during
Tenant's Limited Special Hours, Tenant shall only be required to pay Landlord,
upon demand, Landlord's labor and other out-of-pocket costs for providing Air
Conditioning service to Tenant during Tenant's Limited Special Hours.
17.02 Use of the Demised Premises, or any part thereof, in a
manner exceeding the design conditions (including occupancy and connected
electrical load) specified in Exhibit C for the systems, rearrangement of
partitioning or opening of windows in the Demised Premises while the systems are
in operation which interferes with normal operation of the heat, ventilation and
Air Conditioning in the Demised Premise, may require changes in the systems.
Such changes, so occasioned, shall be made by Tenant, at its expense, as
Tenant's Changes pursuant to Article 13.
ARTICLE 18
Landlords Other Services
18.01 Landlord, at its expense, shall provide public elevator
service, passenger and freight, by elevators serving the floor on which the
Demised Premises are situated during regular hours of business days, and shall
have at least one passenger elevator subject to call at all other times.
18.02 Landlord, at its expense, shall cause the Demised
Premises to be cleaned in accordance with the cleaning specifications annexed
hereto as Exhibit F. Tenant shall pay to Landlord on demand the costs incurred
by Landlord for (a) extra cleaning work in the Demised Premises required because
of (i) misuse or neglect on the part of Tenant or its employees or visitors,
(ii) use of portions of the Demised Premises for preparation, serving or
consumption of food or beverages, data processing or reproducing operations;
private lavatories or toilets or other special purposes requiring greater or
more difficult cleaning work than office areas, (iii) unusual quantity of
interior glass surfaces, (iv) non-Building standard materials or finishes
installed by Tenant or at its request, and (b) removal from the Demised Premises
and the Building of so much of any refuse and rubbish of Tenant as shall exceed
that ordinarily accumulated daily in the routine of business office occupancy.
Landlord, its cleaning contractor and their employees shall have after
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hours access to the Demised Premises and the free use of light, power and water
in the Demised Premises as reasonably required for the purpose of cleaning the
Demised Premises in accordance with Landlord obligations hereunder (and the
usage thereof shall be included in the Initial Survey).
18.03 Landlord, at its expense, shall furnish adequate hot and
cold water to the floor on which the Demised Premises are located for drinking,
lavatory and cleaning purposes. If Tenant uses water for any other purpose
Landlord, at Tenant's expense, shall install meters to measure Tenant's
consumption of cold water and/or hot water for such other purposes, other than
drinking, lavatory and cleaning purposes, and/or steam, as the case may be.
Tenant shall pay for the quantities of cold water and hot water, other than
drinking, lavatory and cleaning purposes, shown on such meters, at Landlord's
cast thereof, on the rendition of Landlord's bills therefor.
18.04 Landlord, at its expense, and on Tenant's request, shall
maintain the original listings on the Building directory of the names of Tenant,
and the names of any of their officers and employees, provided that the names so
listed shall not take up more than 7.8% of the difference between (i) total
number of lines on the Building directory and (ii) ten (10). In the event Tenant
shall require additional or substitute listings on the Building directory,
Landlord shall, to the extent space for such additional or substitute listing is
available, maintain such listings and Tenant shall pay to Landlord an amount
equal to Landlord's reasonable charge for such listings.
18.05 Tenant shall have the right to use sixty-six (66)
parking spaces as assigned by Landlord in parking areas designated by Landlord
in and around the Building. Landlord reserves the right to assign different
spaces to Tenant or to designate different parking areas for Tenant's use
without any liability to Tenant and Tenant agrees that any change in assignment
of spaces or reassignment of parking areas shall not give rise to any claims or
offset against Landlord hereunder.
18.06 Landlord reserves the right, without any liability to
Tenant, except as otherwise expressly provided in this lease, to stop service of
any of the heating, ventilating, Air Conditioning, electric, sanitary, elevator
or other Building systems serving the Demised Premises, or the rendition of any
of the other services required of Landlord under this lease, whenever and for so
long as may be necessary, by reason of accidents, emergencies, strikes or the
making of repairs or changes which Landlord is required by this lease or by law
to make or in xxxx xxxxx deems necessary, by reason of difficulty in securing
proper supplies of fuel, steam, water, electricity, labor or supplies, or by
reason of any "other cause beyond Landlord's reasonable control (hereinafter
collectively referred to as Landlords delay"). Landlord shall use reasonable
diligence to restore the heating, ventilating, Air Conditioning, electric,
sanitary, elevator, or other building systems serving the Demised Premises or
other service required to be provided by Landlord as soon as reasonably
practicable after the abatement of any Landlord's delay in such a manner as to
minimize inconvenience, annoyance, interruption or injury to Tenant's business.
ARTICLE 19
Access, Changes In Building Facilities, Name
19.01 All except the inside surfaces of all walls, windows and
doors bounding the Demised Premises (including exterior Building walls, core
corridor walls and doors and any core corridor entrance) and any space in or
adjacent to the Demised Premises used for shafts, stacks, pipes, conduits, fan
rooms, ducts, electric or other utilities, sinks or other Building facilities,
and the use thereof, as well as access thereto through the Demised Premises for
the purpose of operation, maintenance, decoration and repair, are reserved to
Landlord.
19.02 Tenant shall permit Landlord to install, use, replace
and maintain pipes, ducts and conduits within the demising walls, bearing
columns and ceilings of the Demised Premises.
19.03 Landlord or Landlord's agent shall have the right, upon
request (except in emergency under Clause (ii) hereof) to enter and/or pass
through the Demised Premises or any part thereof, at reasonable times during
reasonable hours, (i) to examine the Demised Premises and to show them to the
fee owners, lessors of superior leases, holders of superior mortgages, or
prospective purchasers, mortgagees or lessees of the Building as an entirety,
and (ii)
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for the purpose of making such repairs or changes in or to the Demised Premises
or in or its facilities, as may be provided for by this lease or as may be
mutually agreed upon by the parties or as Landlord may be required to make by
law or in order to repair and maintain said structure or its fixtures or
facilities. Landlord shall be allowed to take all materials into and upon the
Demised Premises that may be required for such repairs, changes, repainting or
maintenance, without liability to Tenant, but Landlord shall not unreasonably
interfere with Tenant's use of the Demised Premises. Landlord shall also have
the right to enter on and/or pass through the Demised Premises, or any part
thereof, at such times as such entry shall be required by circumstances of
emergency affecting the Demised Premises or said structure.
19.04 During the period of twelve (12) months prior to the
Expiration Date Landlord may exhibit the Demised Premises to prospective
tenants.
19.05 Landlord reserves the right, at any time, without
incurring any liability to Tenant therefor, to make such changes in or to the
Building and the fixtures and equipment thereof, as well as in or to the garage
and street entrances, public spaces, parking spaces, plazas, common areas,
halls, passages, elevators, escalators and stairways thereof, as it may deem
necessary or desirable, provided that Tenant's access to the Building or Demised
Premises shall not be materially impaired. Landlord agrees that when making such
changes, it shall use reasonable efforts to minimize inconvenience, annoyance,
interruption or injury to Tenant's business.
19.06 Landlord may adopt any name for the Building. Landlord
reserves the right to change the name or address of the Building at any time.
19.07 For the purposes of Article 19, the term "Landlord"
shall include lessors of leases and the holders of mortgages to which this lease
is subject and subordinate as provided in Article 7.
ARTICLE 20
Notice Of Accidents
20.01 Tenant shall give notice to Landlord, promptly after
Tenant learns thereof, of (i) any accident in or about the Demised Premises for
which Landlord might be liable, (ii) all fires in the Demised Premises, (iii)
all damages to or defects in the Demised Premises, including the fixtures,
equipment and appurtenances thereof, for the repair of which Landlord might be
responsible, and (iv) all damage to or defects in any parts or appurtenances of
the Building's sanitary, electrical, heating, ventilating, Air Conditioning,
elevator and other systems located in or passing through the Demised Premises or
any part thereof.
ARTICLE 21
Non-Liability And Indemnification
21.01 Neither Landlord nor any agent or employee of Landlord
shall be liable to Tenant for any injury or damage to Tenant or to any other
person or for any damage to, or loss (by theft or otherwise) of, any property of
Tenant or of any other person, irrespective of the cause of such injury, damage
or loss, unless caused by or due to the negligence of Landlord, its agents or
employees occurring within the scope of their respective employments without
negligence on the part of Tenant, it being understood that no property, other
than such as might normally be brought upon or kept in the Demised Premises as
an incident to the reasonable use of the Demised Premises for the purpose herein
permitted, will be brought upon or be kept in the Demised Premises.
21.02 Tenant shall indemnify and save harmless Landlord and
its agents against and from (a) any and all claims (i) arising from (x) the
conduct or management of the Demised Premises or of any business therein, or (y)
any work or thing whatsoever done, or any condition created (other than by
Landlord for Landlord's or Tenant's account) in or about the Demised Premises
during the term of this lease or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Demised
Premises, or (ii) arising from any
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negligent or otherwise wrongful act or omission of Tenant or any of its
subtenants or licensees or its or their employees, agents or contractors, and
(b) all costs, expenses and liabilities incurred in or in connection with each
such claim or action or proceeding brought thereon. In case any action or
proceeding be brought against Landlord by reason of any such claim, Tenant, upon
notice from Landlord, shall resist and defend such action or proceeding.
21.03 Except as otherwise expressly provided in this lease,
this lease and the obligations of Tenant hereunder shall be in no wise affected,
impaired or excused because Landlord is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this lease by reason of strike, other
labor trouble, governmental preemption or priorities or other controls in
connection with a national or other public emergency or shortages of fuel,
supplies or labor resulting therefrom, acts of Cod or other like cause beyond
Landlord's reasonable control (collectively "unavoidable delays"). Landlord
agrees to use reasonable diligence to fulfill any of such obligations as soon as
reasonably practicable after the abatement of the relevant unavoidable delay.
ARTICLE 22
Destruction Or Damage
22.01 If the Building or the Demised Premises shall be
partially or totally damaged or destroyed by fire or other cause, then, whether
or not the damage or destruction shall have resulted from the fault or neglect
of Tenant, or its employees, agents or visitors (and if this lease shall not
have been terminated as in this Article hereinafter provided), Landlord shall
repair the damage and restore and rebuild the Building and/or the Demised
Premises, at its expense, with reasonable dispatch after notice to it of the
damage or destruction; provided, however, that Landlord shall not be required to
repair or replace any of Tenant's Property nor to restore any Tenant's Work.
22.02 If the Building or the Demised Premises shall be
partially damaged or partially destroyed by fire or other cause, the rents
payable hereunder shall be abated to the extent that the Demised Premises shall
have been rendered untenantable and for, the period from the date of such damage
or destruction to the date the damage shall be repaired or restored. If the
Demised Premises or a major part thereof shall be totally (which shall be deemed
to include substantially totally) damaged or destroyed or rendered completely
(which shall be deemed to include substantially completely) untenantable on
account of fire or other cause, the rents shall xxxxx as of the date of the
damage or destruction and until Landlord shall repair, restore and rebuild the
Building and the Demised Premises, provided, however, that should Tenant
reoccupy a portion of the Demised Premises during the period the restoration
work is taking place and prior to the date that the same are made completely
tenantable, rents allocable to such portion shall be payable by Tenant from the
date of such occupancy.
22.03 If the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other cause, or if the Building shall be so
damaged or destroyed by fire or other cause (whether or not the Demised Premises
are damaged or destroyed) as to require a reasonably estimated expenditure of
more than 40% of the full insurable value of the Building immediately prior to
the casualty, then in either such case Landlord may terminate this lease by
giving Tenant notice to such effect within one hundred eighty (180) days after
the date of the casualty. In case of any damage or destruction mentioned in this
Article Tenant may terminate this lease, by notice to Landlord, if (i) within
thirty (30) days after Landlord's final insurance adjustment, Landlord either
(x) notifies Tenant that it does not intend to repair and restore same, or (y)
notifies Tenant that Landlord has reasonably and in good faith determined that
the required repairs or restoration are not capable of being completed in less
than twelve (12) months using due diligence, or (ii) Landlord has not completed
the making of the required repairs and restored and rebuilt the Building and the
Demised Premises within twelve (12) months from the date of such damage or
destruction, or within such period after such date (not exceeding six months) as
shall equal the aggregate period Landlord may have been delayed in doing so by
adjustment of insurance, labor trouble, governmental controls, act of Cod, or
any other cause beyond Landlord's reasonable control.
22.04 No damages, compensation or claim shall be payable by
Landlord for inconvenience, loss of business or annoyance arising from any
repair or restoration of any portion of the Demised Premises or of the
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Building pursuant to this Article. Landlord shall use its best efforts to effect
such repair or restoration promptly and in such manner as to not unreasonably
interfere with Tenant's use and occupancy.
22.05 Notwithstanding any of the foregoing provisions of this
Article, if Landlord or the lessor of any superior lease or the holder of any
superior mortgage shall be unable to collect all of the insurance proceeds
(including rent insurance proceeds) applicable to damage or destruction of the
Demised Premises or the Building by fire or other cause, by reason of some
action or inaction on the part of Tenant or any of its employees, agents or
contractors, which constitutes a breach of any of Tenant's obligations under
this lease, then, without prejudice to any other remedies which may be available
against Tenant, there shall be no abatement of Tenant's rents, but the total
amount of such rents not abated (which would otherwise have been abated) shall
not exceed the amount of the uncollected insurance proceeds.
22.06 Landlord will not carry insurance of any kind on
Tenant's Property or Tenant's Work, and, except as provided by law or by reason
of its fault or its breach of any of its obligations hereunder, shall not be
obligated to repair any damage thereto or replace the same.
22.07 The provisions of this Article shall be considered an
express agreement governing any case of damage or destruction of the Demised
Premises by fire or other casualty, and any provision, law or statute of the
State of New Jersey, providing for such a contingency in the absence of an
express agreement, now or hereafter in force, shall have no application in such
case.
ARTICLE 23
Eminent Domain
23.01 If the whole of the Building shall be lawfully taken by
condemnation or in any other manner for any public or quasi-public use or
purpose, this lease and the term and estate hereby granted shall forthwith
terminate as of the date of vesting of title in such taking (which date is
hereinafter also referred to as the "date of the taking"), and the rents shall
be prorated and adjusted as of such date.
23.02 If only a part of the Building shall be so taken, this
lease shall be unaffected by such taking, except that Tenant may elect to
terminate this lease in the event of a partial taking, if the remaining area of
the Demised Premises shall not be reasonably sufficient for Tenant to continue
feasible operation of its business. Tenant shall give notice of such election to
Landlord not later than thirty (30) days after (i) notice of such taking is
given by Landlord to Tenant, or (ii) the date of such taking, whichever occurs
sooner. Upon the giving of such notice by Tenant this lease shall terminate on
the date of such taking and the rents shall be prorated as of such termination
date. Upon such partial taking and this lease continuing in force as to any part
of the Demised Premises, the rents apportioned to the part taken shall be
prorated and adjusted as of the date of taking and from such date the fixed rent
for the Demised Premises and additional rent shall be payable pursuant to
Article 5 according to the rentable area remaining.
23.03 Landlord shall be entitled to receive the entire award
in any proceeding with respect to any taking provided for in this Article
without deduction therefrom for any estate vested in Tenant by this lease and
Tenant shall receive no part of such award, except as hereinafter expressly
provided in this Article. Tenant hereby expressly assigns to Landlord all of its
right, title and interest in or to every such award. Notwithstanding anything
herein to the contrary, Tenant may, at its sole cost and expense, make a claim
with the condemning authority for (i) Tenant's moving expenses, (ii) the value
of Tenant's fixtures or Tenant's Changes which do not become part of the
Building or property of the Landlord and (iii) the value of Tenant's Work which
does not become part of the Building or the property of Landlord, the original
cost of which is in excess of $272,772.00, provided, however, that in any of
such events, Landlord's award is not thereby reduced or otherwise adversely
affected.
23.04 If the temporary use or occupancy of all or any part of
the Demised Premises shall be lawfully taken by condemnation or in any other
manner for any public or quasi-public use or purpose during the term of this
lease, Tenant shall be entitled, except as hereinafter set forth, to receive
that portion of the award for such taking
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which represents compensation for the use and occupancy of the Demised Premises
and, if so awarded, for the taking of Tenant's Property and for moving expenses,
and Landlord shall be entitled to receive that portion which represents
reimbursement for the cost of restoration of the Demised Premises. This lease
shall be and remain unaffected by such taking and Tenant shall continue
responsible for all of its obligations hereunder insofar as such obligations are
not affected by such taking and shall continue to pay in full the fixed rent and
additional rent when due. If the period of temporary use or occupancy shall
extend beyond the Expiration Date, that part of the award which represents
compensation for the use or occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive so much thereof as represents the period prior to the Expiration Date
and Landlord shall receive so much thereof as represents the period subsequent
to the Expiration Date. All moneys received by Tenant as, or as part of, an
award for temporary use and occupancy for a period beyond the date to which the
rents hereunder have been paid by Tenant shall be received, held and applied by
Tenant as a trust fund for payment of the rents falling due hereunder. in the
event of a temporary taking during the tenth (lOth) year of the term of this
lease, Tenant shall have the right ("Tenant's Condemnation Termination Right")
to terminate this lease provided the temporary taking shall affect all or a
substantial part of the Demised Premises by sending written notice thereof (the
"Condemnation Termination Notice") to Landlord by certified mail, return receipt
requested on or before the tenth (10th) day after Tenant receives notice of such
temporary taking. If Tenant shall send the Condemnation Termination Notice to
Landlord within the time and in the manner hereinbefore provided, then the term
of this lease shall end and expire on the later date to occur of (a) the
effective date of such temporary taking, or (b) ten (10) days after the
Condemnation Termination Notice as if such day were the Expiration Date and
Tenant shall thereupon assign all of its right, title and interest in and to any
portion of the award to which Tenant might otherwise be entitled. If Tenant
shall fail to send the Condemnation Termination Notice within the time and in
the manner hereinbefore provided, then Tenant's Condemnation Termination Right
shall expire and Tenant shall have no further right to terminate this lease.
23.05 In the event of any taking of less than the whole of the
Building which does not result in a termination of this lease, or in the event
of a taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, and to the extent any award or awards shall be sufficient for the
purpose, shall proceed with reasonable diligence to repair, alter and restore
the remaining parts of the Building and the Demised Premises to substantially a
Building standard condition to the extent that the same may be feasible and so
as to constitute a complete and tenantable Building and Demised Premises.
23.06 Should any part of the Demised Premises be taken to
effect compliance with any law or requirement of public authority other than in
the manner hereinabove provided in this Article, then (i) if such compliance is
the obligation of Tenant under this lease, Tenant shall not be entitled to any
diminution or abatement of rent or other compensation from Landlord therefor,
but (ii) if such compliance is the obligation of Landlord under this lease, the
fixed rent hereunder shall be reduced and additional rents under Article 5 shall
be adjusted in the same manner as is provided in Section 23.02 according to the
reduction in rentable area of the Demised Premises resulting from such taking.
23.07 Any dispute which may arise between the parties with
respect to the meaning or application of any of the provisions of this Article
shall be determined by arbitration in the manner provided in Article 34.
ARTICLE 24
Surrender
24.01 On the last day of the term of this lease, or upon any
earlier termination of this lease, or upon any re-entry by Landlord upon the
Demised Premises, Tenant shall quit and surrender the Demised Premises to
Landlord in good order, condition and repair, except for ordinary wear and tear
(i.e. superficial marks on the partitions, holes caused by nails or bolts that
can be repaired by patching and repainting, and similar ordinary deterioration
for executive and general office use) and Tenant shall remove all of Tenants
Property therefrom except free standing partitions (which may be removed or left
in the Demised Premises at Tenant's option) and as otherwise expressly provided
in this lease and shall restore the Demised Premises wherever such removal
results in damage thereto.
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ARTICLE 25
Conditions Of Limitation
25.01 To the extent permitted by applicable law this lease and
the term and estate hereby granted are subject to the limitation that whenever
Tenant shall make an assignment of the property of Tenant for the benefit of
creditors, or shall file a voluntary petition under any bankruptcy or insolvency
law, or an involuntary petition alleging an act of bankruptcy or insolvency
shall be filed against Tenant under any bankruptcy or insolvency law, or
whenever a petition shall be filed or against Tenant under the reorganization
provisions of the United States Bankruptcy Act or under the provisions of any
law of like import, or whenever a petition shall be filed by Tenant under the
arrangement provisions of the United States Bankruptcy Act or under the
provisions of any law of like import, or whenever a permanent receiver of Tenant
or of or for the property of Tenant shall be appointed, then, Landlord, (a) if
such event occurs with the acquiescence of Tenant, at any time after receipt of
notice of the occurrence of any such event, or (b) if such event occurs without
the acquiescence of Tenant, at any time after the event continues for one
hundred twenty (120) days, Landlord may give Tenant a notice of intention to end
the term of this lease at the expiration of five (5) days from the date of
service of such notice of intention, and upon the expiration of said five (5)
day period this lease and the term and estate hereby granted, whether or not the
term shall theretofore have commenced, shall terminate with the same effect as
if that day were the Expiration Date, but Tenant shall remain liable for damages
as provided in Article 27.
25.02 This lease and the term and estate hereby granted are
subject to the further limitation that:
(a) whenever Tenant shall default in the payment of any
installment of fixed rent, or in the payment of any additional rent or any other
charge payable by Tenant to Landlord, on any day upon which the same ought to be
paid, and such default shall continue for three (3) business days after Landlord
shall have given Tenant a notice specifying such default; or
(b) whenever Tenant shall do or permit anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a happening or default which
cannot with due diligence be cured within a period of thirty (30) days and the
continuance of which for the period required for cure will not subject Landlord
to the risk of criminal liability (as more particularly described in Section
10.02) or termination of any superior lease or foreclosure of any superior
mortgage, if Tenant shall not, (i) within said thirty (30) day period advise
Landlord of Tenant's intention to duly institute all steps necessary to remedy
such situation, (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same and (iii) complete such remedy within such time after the date of the
giving of said notice of Landlord as shall reasonably be necessary; or
(c) whenever any event shall occur or any contingency
shall arise whereby this lease or the estate hereby granted or the unexpired
balance of the term hereof would, by operation of law or otherwise, devolve upon
or pass to any person, firm or corporation other than Tenant, except as
expressly permitted by Article 9; or
(d) whenever Tenant shall abandon the Demised Premises
(unless as a result of a casualty), or
(e) when Tenant shall be in default in the observance
or performance of its obligations under any other lease in the Building, then in
any of said cases set forth in the foregoing Subsections (a), (5), (c) (d) and
(e), Landlord may give to Tenant a notice of intention to end the term of this
lease at the expiration of five (5) days from the date of the service of such
notice of intention, and upon the expiration of said five (5) days this lease
and the term and estate hereby granted, whether or not the term shall
theretofore have commenced, shall terminate with the same effect as if that day
were the Expiration Date, but Tenant shall remain liable for damages as provided
in Article 27.
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ARTICLE 26
Re-Entry By Landlord
26.01 If Tenant shall default in the payment of any
installment of fixed rent, or of any additional rent, on any date upon which the
same ought to be paid, and if such default shall continue for three (3) business
days after Landlord shall have given to Tenant a notice specifying such default,
or if this lease shall expire as in Article 25 provided, Landlord or Landlord's
agents and employees may immediately or at any time thereafter re-enter the
Demised Premises, or any part thereof, in the name of the whole, either by
summary dispossess proceedings or by any suitable action or proceeding at law,
or by force or otherwise, without being liable to indictment, prosecution or
damages therefor, and may repossess the same, and may remove any persons
therefrom, to the end that Landlord may have, hold and enjoy the Demised
Premises again as and of its first estate and interest therein. The word
re-enter, as herein used, is not restricted to its technical legal meaning. In
the event of any termination of this lease under the provisions of Article 25 or
if Landlord shall re-enter the Demised Premises under the provisions of this
Article or in the event of the termination of this lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall thereupon
pay to Landlord the fixed rent and additional rent payable by Tenant to Landlord
up to the time of such termination of this lease, or of such recovery of
possession of the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 27.
26.02 In the event of a breach or threatened breach by Tenant
of any of its obligations under this lease, Landlord shall also have the right
of injunction. The special remedies to which Landlord may resort hereunder are
cumulative and are not intended to be exclusive of any other remedies or means
of redress to which Landlord may lawfully be entitled at any time and Landlord
may invoke any remedy allowed at law or in equity as if specific remedies were
not provided for herein.
26.03 If this lease shall terminate under the provisions of
Article 25, or if Landlord shall re-enter the Demised Premises under the
provisions of this Article, or in the event of the termination of this lease, or
of re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Landlord shall be entitled to retain all moneys, if any, paid by Tenant to
Landlord, whether as advance rent, security or otherwise, but such moneys shall
be credited by Landlord against any fixed rent or additional rent due from
Tenant at the time of such termination or re-entry or, at Landlord's option,
against any damages payable by Tenant under Article 27 or pursuant to law.
ARTICLE 27
Damages
27.01 If this lease is terminated under the provisions of
Article 25, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 26, or in the event of the termination of this lease, or
of re-entry, by or under any summary dispossess or other proceeding or action or
any provision of law by reason of default hereunder on the part of Tenant,
Tenant shall pay to Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of
this lease or at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of:
(1) the aggregate of the fixed rent and the
additional rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was payable for
the year immediately preceding such termination) for the period commencing with
such earlier termination of this lease or the date of any such re-entry, as the
case may be, and ending with the Expiration Date, had this lease not so
terminated or had Landlord not so re-entered the Demised Premises; over
(2) the aggregate rental value of the Demised
Premises for the same period; or
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(b) sums equal to the fixed rent and the additional
rent (as above presumed) payable hereunder which would have been payable by
Tenant had this lease not so terminated, or had Landlord not so re-entered the
Demised Premises, payable upon the due dates therefor specified herein following
such termination or such re-entry and until the Expiration Date, provided,
however, that if Landlord shall relet the Demised Premises during said period,
Landlord shall credit Tenant with the net rents received by Landlord from such
reletting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such reletting the expenses incurred
or paid by Landlord in terminating this lease or in re-entering the Demised
Premises and in securing possession thereof, as well as the expenses of
reletting, including altering and preparing the Demised Premises for new
tenants, brokers' commissions, and all other expenses properly chargeable
against the Demised Premises and the rental therefrom; it being understood that
any such reletting may be for a period shorter or longer than the remaining term
of this lease; but in no event shall Tenant be entitled to receive any excess of
such net rents over the sums payable by Tenant to Landlord hereunder, nor shall
Tenant be entitled in any suit for the collection of damages pursuant to this
Subsection to a credit in respect of any net rents from a reletting, except to
the extent that such net rents are actually received by Landlord. If the Demised
Premises or any part thereof should be relet in combination with other space,
then proper apportionment on a square foot basis (for equivalent space) shall be
made of the rent received from such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by
Landlord for the unexpired portion of the term of this lease, or any part
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall, prima facie,
be the fair and reasonable rental value for the Demised Premises, or part
thereof, so relet during the term of the reletting.
In the event that (i) Landlord shall terminate this lease or
re-enter the Demised Premises as aforesaid and (ii) Landlord elects to collect
damages as provided in Subsection (b) of this Section 27.01, then Landlord shall
use reasonable efforts to relet the whole or any part or parts of the Demised
Premises from time to time, either in the name of Landlord or otherwise, to such
tenant or tenants, for such term or terms ending before, on or after the
Expiration Date, at such rental or rentals and upon such other conditions, which
may include concessions and free rent periods, as Landlord, in its sole
discretion, may determine; provided, however, that Landlord shall have no
obligation whatsoever to relet the Demised Premises or any part thereof prior to
the letting of any other space in the Building or space in other Buildings owned
by Landlord in Bergen County, New Jersey, and shall in no event be liable for
failure to relet the Demised Premises or any part thereof, or, in the event of
any such reletting, for failure to collect any rent due upon any such reletting,
and no such failure shall operate to relieve Tenant of any liability under this
Lease or otherwise affect any such liability, and Landlord, at Landlord's
option, may make such repairs, replacements, alterations, additions,
improvements, decorations and other physical changes in and to the Demised
Premises and pay such brokerage commissions and legal fees as Landlord, in its
sole discretion, considers advisable or necessary in connection with any such
reletting or proposed reletting, without relieving Tenant of any liability under
this Lease or otherwise affecting any liability.
27.02 Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this lease would have expired if
it had not been so terminated under the provisions of Article 25, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
liquidated damages by reason of the termination of this lease or re-entry on the
Demised Premises for the default of Tenant under this lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 27.01.
ARTICLE 28
Waiver
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28.01 Tenant, for Tenant, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege which they or any of them might have
under or by reason of any present or future Law, to redeem the Demised Premises
or to have a continuance of this lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
lease or after the termination of this lease as herein provided.
28.02 In the event that Tenant is in arrears in payment of
fixed rent or additional rent hereunder after notice and the expiration of any
applicable cure period, then (i) Tenant waives Tenant's right, if any, to
thereafter designate the items against which any payments made by Tenant are to
be credited, and (ii) Tenant agrees that Landlord may apply any payments made by
Tenant to any items it sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items against which any such payments
shall be credited.
28.03 Landlord and Tenant hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other on any
matter whatsoever arising out of or in any way connected with this lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto.
28.04 The provisions of Articles 17 and 18 shall be considered
expressed agreements governing the services to be furnished by Landlord, and
Tenant agrees that any laws and/or requirements of public authorities, now or
hereafter in force, shall have no application in connection with any enlargement
of Landlord's obligations with respect to such services unless Tenant agrees, in
writing, to pay to Landlord, as additional rent, Landlord's reasonable charges
for any additional services provided.
ARTICLE 29
No Other Waivers Or Modifications
29.01 The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this lease, in whole
or in part, unless such executory agreement is in writing, refers expressly to
this lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge or termination or effectuation of the
abandonment is sought.
29.02 The following specific provisions of this Section shall
not be deemed to limit the generality of any of the foregoing provisions of this
Article:
(a) no agreement to accept a surrender of all or any
part of the Demised Premises shall be valid unless in writing and signed by
Landlord. The delivery of keys to an employee of Landlord or of its agent shall
not operate as a termination of this lease or a surrender of the Demised
Premises. If Tenant shall at any time request Landlord to sublet the Demised
Premises for Tenant's account, Landlord or its agent is authorized to receive
said keys for such purposes without releasing Tenant from any of its obligations
under this lease, and Tenant hereby releases Landlord from any liability for
loss or damage to any of Tenant's property in connection with such subletting;
(b) the receipt by Landlord of rent with knowledge of
breach of any obligation of this lease shall not be deemed a waiver of such
breach; and
(c) no payment by Tenant or receipt by Landlord of a
lesser amount than the correct fixed rent or additional rent due hereunder shall
be deemed to be other than a payment on account, nor shall any
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endorsement or statement on any check or any letter accompanying any check or
payment be deemed an accord and satisfaction, and Landlord may accept such check
or payment without prejudice to Landlord's right to recover the balance or
pursue any other remedy in this lease or at law provided.
ARTICLE 30
Curinq Tenant's Defaults, Additional Rent
30.01 (a) if Tenant shall default in the performance of any of
Tenant's obligations under this lease, Landlord, without thereby waiving such
default, may (but shall not be obligated to) perform the same for the account
and at the expense of Tenant, without notice, in a case of emergency, and in any
other case, only if such default continues after the expiration of (i) three (3)
business days from the date Landlord gives Tenant notice of intention so to do,
or (ii) the applicable grace period provided in Section 25.02 or elsewhere in
this lease for cure of such default, whichever occurs later;
(b) if Tenant is late in making any payment due to
Landlord from Tenant under this lease for five (5) or more days, then interest
shall become due and owing to Landlord on such payment from the date when it was
due computed at the following rates:
(i) for an individual or partnership tenant,
computed at the maximum legal rate of interest;
(ii) for a corporate tenant, computed at the
greater of (A) one and 25/100 (1.25%) percent per month or (B) two (2%) percent
per annum over the then prime rate of Chase Manhattan Bank, N.A. but in no event
in excess of the maximum legal rate of interest chargeable to corporations in
the State of New Jersey.
30.02 Bills for any expenses incurred by Landlord in
connection with any such performance by it for the account of Tenant, and bills
for all cost; expenses and disbursements of every kind and nature whatsoever,
including reasonable counsel fees, involved in collecting or endeavoring to
collect the fixed rent or additional rent or any part thereof or enforcing or
endeavoring to enforce any rights against Tenant, under or in connection with
this lease, or pursuant to law, including any such cost, expense and
disbursement involved in instituting and prosecuting summary proceedings, as
well as bills for any property, material, labor or services provided, furnished,
or rendered, by Landlord or at its instance to Tenant, may be sent by Landlord
to Tenant monthly, or immediately, at Landlord's option, and, shall be due and
payable in accordance with the terms of such bills.
30.03 If Landlord shall default in the performance of any of
Landlord's repair obligations under this lease with respect to the Demised
Premises (other than the shafts, stacks, pipes, conduits, ducts, electric,
heating, ventilating, Air Conditioning, plumbing, elevator or other Building
systems or other utilities, or the Building's exterior, common areas or
structural elements), Tenant may (but shall not be obligated to), upon giving
Landlord thirty (30) days prior written notice of such default stating Tenant's
intention to perform such repair, provided that Landlord has failed to commence
such repair prior to the expiration of such thirty (30) day period, perform the
same for the account and at the expense of Landlord, in the event that Landlord
shall fail to commence such repair within such thirty (30) day period and
thereafter proceed with same to completion, subject to unavoidable delays,
Tenant may make such repair using contractors first approved by Landlord, after
completion of which Tenant may request reimbursement from Landlord, provided
that Tenant's request be accompanied by paid receipted invoices for all labor
and materials furnished in connection with such repair. In the event that
Landlord fails to reimburse Tenant for the cost of such repair within thirty
(30) days after Tenant's request is made as aforesaid, Tenant's sole remedy
shall be to bring a separate action against Landlord for such reimbursement
without any right of offset, deduction, abatement or counterclaim under this
lease whatsoever.
ARTICLE 31
Broker
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31.01 Tenant covenants, warrants and represents that there was
no broker or finder except Xxxxxx & Company, Inc., Xxxxxxx and Wakefield, Inc.,
and Newmark & Co. instrumental in consummating this lease and that no
conversations or negotiations were had with any broker or finder except Xxxxxx &
Company, Inc., Xxxxxxx and Wakefield, Inc., and Newmark & Co. concerning the
renting of the Demised Premises. Tenant agrees to hold Landlord harmless against
any claims for a brokerage, finder or other commission or fee arising out of any
conversations or negotiations had by Tenant with any broker or finder except
Xxxxxx & Company, Inc., Xxxxxxx and Wakefield, Inc., and Newmark & Co.
ARTICLE 32
Notices
32.01 Any notice, statement, demand or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this lease or pursuant to any applicable law or requirement
of public authority, shall be in writing (whether or not so stated elsewhere in
this lease) and shall be deemed to have been properly given, rendered or made,
if sent by registered or certified mail, return receipt requested, addressed to
the other party at the address hereinabove set forth (except that after the
Commencement Date, Tenant's address, unless Tenant shall give notice to the
contrary, shall be the Building), with copies of any notice, statement, demand
or other communication required or permitted to be given, other than ordinary
statements and demands for rent and additional rent to (a) in the case of
notices given to Landlord, to Xxxxxx and Xxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attn: Xxxxxx X. Ivanhoe, Esq. and (b) in the case of notices given
to Tenant, to Weitzner, Levine, Hamburg and Xxxxxx, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx, Attn: Xxxxxx Xxxxxx, Esq., and shall be deemed to have been given,
rendered or made on the day so mailed, unless mailed outside of the State of New
Jersey, in which case it shall be deemed to have been given, rendered or made on
the expiration of the normal period of time for delivery of mail from the post
office of origin to the post office of destination. Either party may, by notice
as aforesaid, designate a different address or addresses for notices,
statements, demand or other communications intended for it.
ARTICLE 33
Estoppel Certificate, Memorandum
33.01 Each party agrees, at any time and from time to time, as
requested by the other party, upon not less than ten (10) days' prior notice, to
execute and deliver to the other a statement certifying (a) that this lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications) and whether any options granted to Tenant pursuant to the
provisions of this lease have been exercised, (b) certifying the dates to which
the fixed rent and additional rent have been paid and the amounts thereof, and
stating whether or not, to the best knowledge of the signer, the other party is
in default in performance of any of its obligations under this lease, and, if
so, specifying each such default of which the signer may have knowledge, it
being intended that any such statement delivered pursuant hereto may be relied
upon by others with whom the party requesting which certificate may be dealing.
Additionally, Tenant's Statement shall contain such other information as shall
be required by the holder or proposed holder of any superior mortgage or the
lessor or proposed lessor under any superior lease.
33.02 Tenant agrees that it shall not record this lease or a
copy hereof. At the request of either party, Landlord and Tenant shall promptly
execute, acknowledge and deliver a memorandum with respect to this lease
sufficient for recording. Such memorandum shall not in any circumstances be
deemed to change or otherwise affect any of the obligations or provisions of
this lease.
ARTICLE 34
Arbitration
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34.01 Either party may request arbitration of any matter in
dispute wherein arbitration is expressly provided in this lease as the
appropriate remedy. The party requesting arbitration shall do so by giving
notice to that effect to the other party, and both parties shall promptly
thereafter jointly apply to the American Arbitration Association (or any
organization successor thereto) in the Borough of Fort Xxx, County of Bergen for
the appointment of a single arbitrator.
34.02 The arbitration shall be conducted in accordance with
the then prevailing rules of the American Arbitration Association (or any
organization successor thereto) in the Town of Fort Xxx, County of Bergen. In
rendering such decision and award, the arbitrator shall not add to, subtract
from or otherwise modify the provisions of this lease.
34.03 If for any reason whatsoever a written decision and
award of the arbitrator shall not be rendered within sixty (60) days after the
appointment of such arbitrator, then at any time thereafter before such decision
and award shall have been rendered either party may apply to the Supreme Court
of the State of New Jersey or to any other court having jurisdiction and
exercising the functions similar to those now exercised by such court, by
action, proceeding or otherwise (but not by a new arbitration proceeding) as may
be proper to determine the question in dispute consistently with the provisions
of this lease.
34.04 All the expenses of the arbitration shall be borne by
the parties equally.
ARTICLE 35
No Other Representation; Construction, Governing Law, Consents
35.01 Tenant expressly acknowledges and agrees that Landlord
has not made and is not making, and Tenant, in executing and delivering this
lease, is not relying upon, any warranties, representations, promises or
statements, except to the extent that the same are expressly set forth in this
lease or in any other written agreement which may be made between the parties
concurrently with the execution and delivery of this lease and shall expressly
refer to this lease. This lease and said other written agreement(s) made
concurrently herewith are hereinafter referred to as the "lease documents". It
is understood and agreed that all understandings and agreements heretofore had
between the parties are merged in the lease documents, which alone fully and
completely express their agreements and that the same are entered into after
full investigation, neither party relying upon any statement or representation
not embodied in the lease documents, made by the other.
35.02 If any of the provisions of this lease, or the
application thereof to any person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this lease, or the application of
such provision or provisions to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected
thereby, and every provision of this lease shall be valid and enforceable to the
fullest extent permitted by law.
35.03 This lease shall be governed in all respects by the laws
of the State of New Jersey.
35.04 Wherever in this lease it is specifically provided that
Landlord's consent or approval shall not be unreasonably withheld, such consent
or approval shall not be unreasonably delayed. If Landlord shall refuse such
consent or approval, Tenant in no event shall 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, counterclaim or
defense) based upon any claim or assertion by Tenant that Landlord unreasonably
withheld or unreasonably delayed its consent or approval. Tenant's sole remedy
shall be an action or proceeding to enforce any such provision, for specific
performance, injunction or declaratory judgment.
Article 36
Parties Bound
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36.01 The obligations of this lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 9 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 25.
However, the obligations of Landlord under this lease shall not be binding upon
Landlord herein named with respect to any period subsequent to the transfer of
its interest in the Building as owner or lessee thereof and in event of such
transfer said obligations shall thereafter be binding upon each transferee of
the interest of Landlord herein named as such owner or lessee of the Building,
but only with respect to the period ending with a subsequent transfer within the
meaning of this Article.
36.02 If Landlord shall be an individual, joint venture,
tenancy in common, copartnership, unincorporated association, or other
unincorporated aggregate of individuals and/or entities or a corporation, Tenant
shall look only to such Landlord's estate and property in the Building (or the
proceeds thereof) and, where expressly so provided in this lease, to offset
against the rents payable under this lease, for the satisfaction of Tenant's
remedies for the collection of a judgment (or other judicial process) requiring
the payment of money by Landlord in the event of any default by Landlord
hereunder, and no other property or assets of such Landlord or any partner,
member, officer or director thereof, disclosed or undisclosed shall be subject
to levy, execution or other enforcement procedure for the satisfaction of
Tenant's remedies under or with respect to this lease,. the relationship of
Landlord and Tenant hereunder or Tenant's use or occupancy of the Demised
Premises.
ARTICLE 37
Certain Definitions And Construction
37.01 For the purposes of this lease and all agreements
supplemental to this lease, unless the context otherwise requires the
definitions set forth in Exhibit E annexed hereto shall be utilized.
37.02 The various terms which are italicized and defined in
other Articles of this lease or are defined in Exhibits annexed hereto, shall
have the meanings specified in such other Articles and such Exhibits for all
purposes of this lease and all agreements supplemental thereto, unless the
context shall otherwise require.
ARTICLE 38
Adjacent Excavation And Construction-Shorinq
38.01 If an excavation or other substructure work shall be
made upon land adjacent to the Demised Premises, or shall be authorized to be
made, Tenant shall afford to the person causing or authorized to cause such
excavation, license to enter upon the Demised Premises for the purpose of doing
such work as shall be necessary to preserve the wall of or the Building from
injury or damage and to support the same by proper foundations without any claim
for damages or indemnity against Landlord, or diminution or abatement of rent.
ARTICLE 39
Supplemental Air Conditioning Systems
39.01 Landlord agrees that Tenant may install, at Tenant's own
cost and expense, an additional Air Conditioning system, including a separate
water riser and cooling tower (the "Supplemental Air Conditioning System"), to
enable Tenant to receive up to an additional twenty (20) tons of Air
Conditioning for the Demised Premises subject to and in accordance with the
provisions of this Article 39. The costs of installation, maintenance and
operation of the Supplemental Air Conditioning System shall be borne by Tenant.
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39.02 Tenant may, at its sole cost and expense, connect its
Supplemental Air Conditioning System to Landlord's condenser water riser or the
separate water riser attached to Tenant's separate cooling tower, as the case
may be, at a location designated by Landlord, which connection shall be subject
to Landlord's prior written approval. If Tenant connects to Landlord's condenser
water riser, Landlord shall furnish condenser water through its risers for use
by Tenant in connection with its Supplemental Air Conditioning System on such
days as same is being produced for the operation at the Building's
air-conditioning system and available for distribution to tenants, during
"regular hours" (that is between the hours of 8:00 a.m. and 6:00 p.m.) of
"business days" (which terms are used herein to mean all days except Saturdays,
Sundays and holidays observed by the Federal or New York State Government as
legal holidays) for Tenant's Supplemental Air Conditioning System and in such
event, Tenant covenants and agrees to pay Landlord for its use of condenser
water at the rate of twenty cents (20(cent)) (the "Base Rate") per rated ton of
cooling capacity of the Air Conditioning system installed by Tenant for every
hour of usage thereof as measured by clocks or other devices satisfactory to
Landlord and installed by Tenant at Tenant's sole cost and expense. The rate
shall be subject to adjustment for increases in the cost to Landlord in
connection with the creating and furnishing of condenser water over the costs
which exist as of the date hereof. In the event that either (a) a separate water
riser and cooling tower is installed and Landlord shall supply condenser water
to Tenant's Supplemental Air Conditioning System during the business hours
and/or after hours of operation thereof, or (b) Tenant requires condenser water
through Landlord's water risers for the after hours operation of Tenant's Air
Conditioning system, Landlord shall furnish such condenser water to Tenant and
Tenant shall pay Landlord for Tenant's use of condenser water at the rate then
charged by Landlord for furnishing condenser water to tenants of the Building,
for supplemental Air Conditioning use (including any surcharge then charged by
Landlord for the provision of such service after hours not to exceed fifteen
(15%) percent of Landlord's Cost) per rated ton of cooling capacity of the Air
Conditioning equipment installed by Tenant for every hour of usage thereof, as
measured by clocks or other devices satisfactory to Landlord and installed at
Tenant's sole cost and expense as a part of the installation of Tenant's
Supplemental Air Conditioning System but in no event less than the Base Rate as
from time to time adjusted as aforesaid. All payment due under this Section
shall be payable by Tenant within ten (10) days after receipt of a demand from
Landlord therefor and shall be deemed to constitute additional rent payable
under this lease. Tenant may, at its sole cost and expense connect to Landlord's
Building waste lines in connection with the operation of the Supplemental Air
Conditioning System and the manner of such connection shall be subject to
Landlord's prior written approval. All facilities, machinery and equipment
relating to the Supplemental Air Conditioning System shall be connected by
Tenant and operated by Tenant solely at Tenant's cost and expense. All such
facilities, except the cooling tower and condenser water riser, if installed by
Tenant, shall be installed by Tenant solely within the Demised Premises.
Tenant's Air Conditioning facilities, equipment and machinery shall be
water-cooled in design and operation. Tenant's blowers, chilling equipment, fans
and other facilities, equipment and machinery used in connection with Tenant's
Supplemental Air Conditioning System shall operate on electricity purchased by
Tenant in accordance with the provisions of Article 16 of this lease. Prior to
installing any facilities, equipment, machinery and ducts in connection with the
Supplemental Air Conditioning System or commencing any work in connection
therewith, Tenant shall submit to Landlord plans and specifications for the work
to be done for Landlord's approval. In performing any work or making any
installation in connection with the Supplemental Air Conditioning System after
the Commencement Date, Tenant shall comply with and be bound by the provisions
of Article 13 of this lease. All facilities; equipment, machinery and ducts
installed by Tenant in connection with the Supplemental Air Conditioning System
and the connection to Landlord's condenser water and waste lines shall (a) be
subject to Landlord's prior written approval which shall not be unreasonably
withheld or delayed, (b) comply with Landlord's reasonable requirements as to
installation, maintenance and operation, and (c) comply with all other terms,
covenants and conditions of this lease applicable thereto. Tenant agrees at all
times to cooperate fully with Landlord and to abide by all the regulations and
requirements which Landlord may reasonably prescribe for the proper functioning
and protection of said facilities.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this lease as of the day and year first above written.
--------------------------------
-00-
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK )
On this ____ day of July, 1986, before me personally came
________________________, to me known who, being by me duly sworn, did depose
and say that he resides in ____________________________ ; that he is the
____________________ of PHILIPP BROTHERS CHEMICALS, INC., the corporation
described in and which executed the foregoing instrument; as TENANT; and that he
signed his name thereto by order of the board of directors of said corporation,
by like order.
----------------------------
Notary Public
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EXHIBIT A
DESCRIPTION
ALL that certain lot, piece or parcel of land, situate, lying
and being in the Town of Fort Xxx, County of Bergen and State of New Jersey,
bounded and described as follows:
BEGINNING at a point where the Northeasterly right of way line
of Xxxxx Street (50 feet wide) intersects the Northwesterly right-of-way line of
Xxxxxxx Avenue (50 feet wide) and running Thence:
1. Along the Northeasterly right-of-way line of Xxxxx Street,
North 51 degrees 22 minutes 11 seconds West, 539.80 feet to
a point; Thence
2. Along the Southeasterly right-of-way line of Xxxxxxxx
Avenue (60 feet wide), North 38 degrees 43 minutes 09
seconds East, 54.43 feet to a point of curvature; Thence
3. Along the Southerly line of Kelby Street (50 feet wide),
Northeasterly and Southeasterly on a curve to the right
having a radius of 106.82 feet, an arc length of 122.46 feet
to a point of curvature; Thence
4. Still along the same, Southeasterly on a curve to the
right having a radius of 548.78 feet, an arc length of
232.02 feet to a point of tangency; Thence
5. Still along the same, South 51 degrees 22 minutes 11 seconds
East, 206.01 feet to a point of curvature; Thence
6. Southeasterly and Southerly on a curve to the right having
a radius of 42.00 feet, an arc length of 66.63 feet to a
point of tangency; Thence
7. Along a widened section of Xxxxxxx Avenue South 39 degrees
31 minutes 19 seconds West, 7.37 feet to a point; Thence
8. South 51 degrees 22 minutes 11 seconds East, 3.00 feet to
a point; Thence
9. Along the widened section of Xxxxxxx Avenue, South 37
degrees 13 minutes 46 seconds West, 50.00 feet to a point;
Thence
10. South 51 degrees 22 minutes 11 seconds East, 1.00 feet to
a point; Thence
11. Along the right of way line of Xxxxxxx Avenue (50 feet
wide), South 39 degrees 31 minutes 19 seconds West, 100.00
feet to the point or place of Beginning.
Reverse to "positive"
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[GRAPHIC OMITTED]
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EXHIBIT C
WORK LETTER
PART A: Tenant's Plan; Specifications and Drawings:
1. On or before the dates listed below, Tenant shall, at its
sole cost and expense, prepare and submit to Landlord, for Landlord's approval,
the following descriptive information, detailed architectural drawings and
specifications and detailed information in connection with mechanical and
engineering drawings to be prepared byo Landlord (herein referred to as
"Tenant's Plans") for any work to be done by Landlord under Parts B or D hereof
in connection with Tenant's layout of the Demised Premises, which Tenant's Plans
shall be prepared by an architect or space planner designated by Landlord at
Tenant's sole cost and expense:
Phase 1: On or before July 25, 1986:
Preliminary architectural drawings including:
(a) Location, loads and dimensions of telephone equipment
rooms.
(b) Partition locations and type.
(c) Door Locations, size and type, hardware schedule.
(d) Reflected ceiling plans.
(e) Any structural architectural installations.
(f) Cabinet work and any other information affecting other
trades.
(g) Non-building standard ceiling heights and/or materials,
and any other information not specified in Phases 2 and 3 below.
Phase 2: On or before July 30, 1986:
1. Detailed information required by Landlord in connection
with final mechanical and engineering drawings to be prepared by Landlord
including:
(a) Total electrical load, including lighting for entire
space and location of electrical and telephone outlets, and showing amount and
location of areas requiring loads in excess of Building Standard.
(b) Air Conditioning loads.
(c) specific plumbing requirements, including plans,
specifications and sections.
2. Final Architectural working drawings f or the items set
forth in Phase 1.
Phase 3: On or before August 8, 1986:
(a) Decorative plans, including paint schedule, floor
coverings and wall coverings.
(b) Non-structural architectural detailing.
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1. Utilizing the information shown on Tenant's Plans, Landlord
shall cause mechanical and structural plans to be prepared at Tenant's sole
cost and expense.
2. All plans and specifications for all work to be performed
in and to the Demised Premises (including, without limitation, Tenant's Plans)
are subject to Landlord's prior written approval, which shall not be
unreasonably withheld. Within ten (10) days after notification from Landlord of
any objections to Tenant's Plans, Tenant shall submit to Landlord new plans (the
"Revised Tenant's Plans") curing Landlord's objections. If Tenant's Plans, the
Revised Tenant's Plans or Revisions (as hereinafter defined) require any
materials, services, or installations that will result in a delay in
construction, Landlord may reject those items of Tenant's Plans, the Revised
Tenant's Plans or Revisions which will occasion such delay. Tenant shall pay to
Landlord, as additional rent, within five (5) days after submission to Tenant of
a statement therefor, the costs incurred by Landlord for review of Tenant's
Plans, Revised Tenant's Plans and Revisions.
3. Tenant's Plans and the Revised Tenant's Plans shall comply
with and conform to the plans of the Building filed with the Department of
Buildings of the Town of Fort Xxx, and with all rules, regulations and/or other
requirements of any governmental department having jurisdiction over the
construction of the Building and/or the Demised Premises. Landlord shall, at
Tenant's expense, file all necessary architectural plans, together with any
mechanical plans and specifications, in such form (building notice, alteration,
or other form) as may be necessary, with the appropriate governmental agencies.
Any changes required by any governmental department affecting the construction
of the Building and/or the completion of the Demised Premises shall be complied
with by Landlord in completing the construction of the Building and/or the
completion of the Demised Premises and shall not be deemed to be a violation of
Tenant's Plans or the Revised Tenant's Plans or any provisions of this Work
Letter. Landlord agrees, that prior to making any changes required by any
governmental department to notify Tenant thereof and to provide Tenant with any
alternative changes that are acceptable to such governmental department. If such
governmental department has given such alternative changes to Landlord, Tenant
may designate, within five (5) days after Landlord's notice to Tenant thereof,
which alternative that it desires Landlord to utilize for such change. If the
governmental department fails to give Landlord alternatives for changes or
Tenant fails to notify Landlord which alternative that it desires Landlord to
utilize within said five (5) day period, then such changes shall be made by
Landlord as required or the alternative selected by Landlord, as the case may
be, shall not be deemed a violation of Tenant's Plans, Revised Tenant's Plans or
any provisions of this Work Letter and shall be deemed automatically accepted
and approved by Tenant and shall, subject to Tenant's prior approval which shall
not be unreasonably withheld, provided that Tenant's approval shall be deemed
granted if Tenant fails to disapprove such changes within five (5) days after
Landlord's notice to Tenant requesting such approval, Tenant's approval shall be
deemed given. Additionally, any change in the base Building or any compliance
with any rules, regulations and/or other requirements of any governmental agency
having jurisdiction necessitated by Tenant's Plans or the Revised Plans (whether
such change or compliance is required prior to or during the course or after
completion of the work to be performed in the Demised Premises and whether or
not Landlord shall have previously approved such Tenant's Plans or the Revised
Tenant's Plans) shall be accomplished at Tenant's sole cost and expense. The
granting by Landlord of its approval to Tenant's Plans or the Revised Tenant's
Plans shall in no manner constitute or be deemed to constitute a judgment or
acknowledgment by Landlord as to their legality or compliance with governmental,
quasi-governmental or other requirements.
4. Tenant shall have the right to make changes from time to
time in Tenant's Plans or the Revised Tenant's Plans (other than changes
necessitated by Landlord's objections) by submitting to Landlord revised plans
and specifications (herein referred to as the "Revisions"). All Revisions shall
be subject to Landlord's prior written approval, which shall not be unreasonably
withheld. Upon receipt and approval of any Revisions, Landlord shall submit the
Revisions so approved to the contractors or subcontractors performing the trade
or trades involved in the Revisions, and, if applicable and as requested by
Tenant, obtain and deliver to Tenant "Estimates (as such term is defined in Part
D) in connection therewith. The cost of any Revisions shall be borne solely by
Tenant and shall be subject to the "Contractors Fee" (as such term is defined in
Part D). Landlord shall have the right to disapprove any Revisions that would,
in Landlord's reasonable opinion, delay the Commencement Date, unless, in
conjunction with submitting the same, Tenant agrees in a writing satisfactory to
Landlord to commence to pay the
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rental reserved under the Lease on the date upon which the Commencement Date
would have occurred but for Landlord's performance of the Revisions.
5. Any architect, space planner and engineer that Tenant
elects or is required to utilize shall be subject to the prior written approval
of Landlord, which approval shall not be unreasonably withheld or delayed.
6. All amounts payable by Tenant for work to be done by
Landlord pursuant to this Work Letter shall be paid by Tenant within five (5)
days after the submission to Tenant of statements, bills or invoices therefore.
Such statements, bills or invoices shall be conclusive and binding on Tenant
unless Tenant shall notify Landlord within thirty (30) days after its receipt of
such statement, xxxx or invoice that it disputes the correctness thereof,
specifying the particular respects in which the statement, xxxx or invoice is
claimed to be incorrect. Pending the resolution of such dispute by agreement
between the parties or otherwise, Tenant shall pay all amounts due in accordance
with the statement, xxxx or invoice, but such payment shall be without prejudice
to Tenant's right to dispute same. If the dispute shall be resolved in Tenant's
favor, Landlord shall, within five (5) days after Tenant's demand pay Tenant the
amount of the overpayment, if any, resulting from Tenant's compliance with such
statement, xxxx or invoice.
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PART B:
Landlord shall provide and install the following facilities
and materials and complete the following work as part of "Landlord's Work" (as
hereinafter defined) in accordance with Tenant's Plans or the Revised Tenant's
Plant For purposes of this lease, "Landlord's Work" shall be:
1. Partitions:
lA) Interior Office Partitions
Furnish and install drywall partitioning with 2-1/2" metal
studs and Building Standard gypsum board where designated by Lessee but limited
to the lineal footage equal to 50 lineal feet per 1,000 square feet of the
Lessee's rentable area as outlined in the Lease. Interior office partitions as
hereinafter defined shall extend from floor to underside of ceiling tiles. Any
jogs, curves, or angles in any partition is not included.
1B) Demising Wall Partitions
Furnish and install drywall partitioning between Lessees, and
between Lessee and corridors; with 2-1/2" metal studs and gypsum board. Amount
of lineal footage shall be equal to 75 lineal feet of demising wall partitions
per 5,000 rentable square feet. These partitions shall extend from floor to
underside of slab above.
Partitions shall include insulation.
2. Doors:
2A) Interior Doors
Furnish and install one (1) Building Standard door and frame
complete with latch set for each 40 lineal feet of partition as outlined in Item
1(A).
Doors within tenant space to be 3'O" x 7'0" solid wood, stain
grade, KD frame. No special undercutting shall be provided. Latchset to be
Xxxxxx 863 x410 or equal as selected by Landlord.
2B) Entrance Doors
Furnish and install one (1) Building Standard single door and
frame including closer and lockset, masterkeyed to Building System for each
10,000 rentable square feet of Tenant's area as outlined in lease.
Entrance door to be 3'0" x 9'0" solid core white oak.
Lockset to be Xxxxxx (lever type) or equal as selected by
Landlord. Closer to be Xxxxxx or equal as selected by Landlord.
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3. Painting:
a. Interior wall surfaces required to be furnished by
Landlord hereunder shall receive one (1) coat of primer and one (1) coat of
Building Standard color paint.
x. Xxxx doors required to be furnished by Landlord
hereunder will receive one (1) coat of primer and one (1) coat of Building
Standard color paint.
c. Metal doors required to be furnished by Landlord
hereunder not having baked enamel finish shall receive two (2) coats of Building
Standard enamel paint over one (1) coat of primer.
d. Paint manufacturer to be utilized is Xxxxxxxx Xxxxx
or equal.
4. Flooring:
a. An allowance of $10.00 per square yard will be given
to Tenant towards the purchase and installation of carpet and base in areas
where VAT is not installed by Landlord, which shall be allowed to Tenant even if
Tenant furnishes and installs carpet as provided in Section 4(d) hereof.
b. Deleted prior to execution.
c. Supply rooms, telephone and equipment rooms, and
mailrooms will receive vinyl asbestos tile and base to be selected from
Landlord's supplier. An allowance of seventy-five (75) cents per square foot
will be given towards this purchase.
d. Tenant shall have the right, upon reasonable advance
notice to Landlord, to furnish and install all carpet in the Demised Premises as
Rejected Tenant's Work was such term is hereinafter defined).
5. Lighting:
a. Furnish and install one (1) Building Standard light
fixture per 80 rentable square feet. Landlord shall supply and install initial
lamps and ballasts, and Tenant will be responsible for the furnishings and
installations of any and all additional lamps and ballasts.
b. Building Standard light fixture is Keystone
#2A440-EXA-GW-SH-277 with energy saving ballast and energy saving lamps.
6. Heating, Ventilating and Air Conditioning:
a. Furnish and install Building Standard air
conditioning outlets at one (1) diffuser per 200 rentable square feet of
enclosed office area. There will be no credits towards additional diffusers if
the enclosed office areas are less than 200 square feet.
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b. Furnish and install Building Standard diffusers at
three (3) diffusers per 1,000 rentable square feet open space.
c. Building Standard diffusers are 24" x 24" lay-in
grills and/or registers connected to a 6" duct.
d. If Tenant's equipment (i.e. computers, etc.) requires
air conditioning above and beyond Building Standard, said additional air
conditioning, including cost of operation as stipulated in the lease) shall be
paid for by Tenant as an extra cost. Any special exhaust requirements will also
be an extra cost to be paid by Tenant.
e. Landlord will provide one (1) smoke exhaust fan per
tenant.
7. Electrical:
a. Furnish and install one (1) Building Standard duplex
receptacle per 125 rentable square feet. The aforesaid outlets are to be located
only in the ceiling high partitions at Building Standard mounting heights. The
Building proper will contain wires, risers, conduits, feeders and panel
equipment necessary to furnish the premises with electrical energy in an amount
equal to (i) 2.2 xxxxx per rentable square foot of space for lighting and (ii)
1.8 xxxxx per rentable square foot of space for other electrical consumption.
8. Switches:
a. Furnish and install Building Standard switches to
service ceiling fixtures as required by the underwriters code at one switch per
room.
9. Life Safety System:
a. Full floor tenants (occupying floors 7 through 18)
will be provided with 132 sprinkler heads per floor, which may be pre-installed.
Tenants leasing a partial floor will be provided only with the sprinklers
pre-installed in Tenant's space. Revisions to pre-installed sprinkler systems
required by any tenant, and any work required to be performed as a result of
such revisions, including without limitation, removal, revision and/or
reinstallation of any ceiling tiles and/or ceiling grids, shall be at Tenant's
expense.
10. Telephone Service:
a. The Landlord shall arrange with New Jersey Xxxx
Telephone Company for telephone service within the equipment room in the
building core.
b. All telephone work and wiring in partitions, floors,
and ceilings to be arranged for by Tenant with New Jersey Xxxx Telephone Company
or other qualified installer selected by Tenant.
Non-completion of the telephone work will not delay Tenant's acceptance of the
demised premises or the payment of rent. All electrical load centers, special
wiring, and plywood supplied by Landlord for telephone equipment shall be an
extra cost to be paid by Tenant.
11. Window Covering:
a. Furnish and install Building Standard horizontal
blinds with color as established by Landlord for all exterior windows. No
substitutions are permitted.
12. Ceiling:
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a. Lay-in tile ceilings shall be 24" x 48" exposed
T spline.
b. Ceiling heights to be 9'O" on office floors.
As used in this Work Letter, the term "Building Standard"
shall mean such materials as Landlord may elect to use as part of its standard
construction substantially throughout the Building.
PART C: Substitutions and Credits
1. Tenant may request that Landlord substitute alternate
materials, equipment and fixtures for those specified in Part B provided that
such substitute items are new and are of a quality at least comparable to those
replaced. In addition, Tenant may request that Landlord omit the installation of
any item or items not theretofore installed, in which event Landlord shall
thereupon be released from any obligation to install the same at any time
thereafter.
2. If, upon Tenant's request, Landlord shall utilize
materials, or install equipment or fixtures, other than those described in Part
B, Tenant shall pay to Landlord, on demand as additional rent under the Lease,
an amount equal to the sum of (a) Landlord's Cost (as hereinafter defined) for
the substitute item, plus (b) an amount equal to Landlord's cost for its
overhead for administration and handling of the substitution, not to exceed
fifteen (15%) percent of Landlord's Cost. Notwithstanding such payment by
Tenant, the substitute item shall be and remain the property of Landlord and
shall not be removed by Tenant either before or after the Expiration Date.
3. In the event that, upon Tenant's request, Landlord
shall omit the installation of any item or items described in Part B, whether by
reason of substitution or otherwise, Landlord, subject to the further provisions
of this paragraph 3, shall credit the amount, if any, allowed to Landlord by
Landlord's materialmen for returning such item or items against any amounts due
to Landlord in connection with the substitution of other item or items therefor
or in connection with Landlord's installation of any additional item or items of
like kind pursuant to the terms of Part D and such credits shall be allowed only
after such amounts due to Landlord have been determined. In no event, however,
shall Landlord (a) pay any cash credit to Tenant, (b) allow a credit to Tenant
against fixed or additional rent (except as otherwise set forth in this
paragraph 3), (c) allow a credit to Tenant against amounts due to Landlord for
the installation of any substitute or additional item or items of a kind,
nature, or character different from that omitted, (d) allow a credit to Tenant
for such omitted item in an amount to exceed the amount allowed or credited to
Landlord by the materialmen furnishing the omitted item upon a return or non-
utilization thereof or (e) allow a credit to Tenant of any kind for partitioning
omitted or otherwise not installed.
4. For purposes of this Work Letter, "Landlord's Cost"
shall mean amounts charged by Landlord's contractor; subcontractors and
materialmen for furnishing and installing any item or performing any work,
including, without limitation, labor costs and costs for general conditions in
connection therewith (which general conditions shall include, without
limitation, rubbish removal, hoisting and other items generally included within
the term "general conditions" in the Metropolitan New York Area.
PART D: Landlord's Performance of Items of Tenant's Work:
1. If Tenant shall desire that Landlord perform any work
(the "Tenant's Work") in and to the Demised Premises in addition to the work set
forth in Part B same shall be clearly identified in Tenant's Plans or the
Revised Tenant's Plans submitted by Tenant for such work pursuant to Part A.
With reasonable dispatch, but not more thin sixty (60) days after receipt of
such request and plans, Landlord shall notify Tenant as to whether Landlord
agrees to perform all or any part of the Tenant's Work, which notice shall be
sent to Tenant together with Landlord's written estimates (the "Estimates") of
the cost of those parts of the Tenant's Work which Landlord is willing to
perform (the "Acceptable Tenant's Work"). Within ten (10) working days after
Tenant's receipt of the Estimates, Tenant shall notify Landlord in writing as to
which of the Estimates it accepts and desires that Landlord proceed with the
Acceptable Tenant's Work covered by the acceptable Estimates. If Tenant shall
fail to respond to all Estimates within such ten (10) working day period, then
(a) the Estimates not accepted by Tenant shall be
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deemed disapproved in all respects by Tenant, (b) Landlord shall not be
obligated to proceed on any of the Acceptable Tenant's Work including the items
covered by Estimates acceptable to Tenant (in which event Landlord shall send
Tenant a notice (the "Rejection Notice") indicating the items of Acceptable
Tenant's Work as to which Landlord refuses to proceed), and (c) Tenant shall
perform all of the Acceptable Tenant's Work which Landlord will not perform as
well as the balance of the Tenant's Work, or Tenant will cause the same to be
performed, through its own contractors or subcontractors in accordance with the
terms of Part E. Notwithstanding anything in this Work Letter to the contrary,
any Tenant's Work involving items relating to any of the Building systems or
which will be physically attached to the Demised Premises or portions thereof
(including, without limitation built-in cabinetry and similar items) and items
that will be electrified or have electrical wiring or equipment running through
or attached to same (all such items are hereafter referred to as "Required
Items"), must be requested by Tenant to be performed by Landlord and if Landlord
agrees to perform same, such work must be performed by Landlord and Tenant may
not elect to have same performed by another party or parties, and, with respect
to such Required Items, the provisions of Part D l.(c), shall not be applicable.
2. If Landlord shall agree, and Tenant shall authorize
Landlord, to perform any Acceptable Tenant's Work as provided in paragraph 1
above, Landlord shall perform such Acceptable Tenant's Work for the account of
Tenant, and Tenant shall pay Landlord therefor, as additional rent under the
Lease, an amount equal to the sum of (a) Landlord's Cost of performing such
Acceptable Tenant's Work , plus (b) a "Contractors Fee", which shall be an
amount equal to Landlord's Cost for its overhead and supervision for the
administration of the performance of such Acceptable Tenant's Work by Landlord
and/or its contractor not to exceed fifteen (15%) percent of Landlord's Cost.
Landlord or its contractor may submit monthly statements to Tenant for sums due
to it under this paragraph 2, for such Acceptable Tenant's Work performed by
Landlord or the contractor to date and/or for materials delivered to the job
site during the previous month, and the same shall be payable by Tenant to
Landlord or its designee within five (5) days thereafter.
PART E: Tenant's Performance of Items of Tenant's Work:
1. Landlord shall permit Tenant and its agents to enter
upon the Demised Premises prior to the Commencement Date so that Tenant may
perform, through its own contractors (to be first approved in writing by
Landlord) and in accordance with Tenant's Plans or the Revised Tenant's Plans
(as approved in writing by Landlord in accordance with Part A hereof), that
portion of Tenant's Work (the "Rejected Tenant's Work") which is other than
Acceptable Tenant's Work covered by Estimates approved by Tenant in accordance
with paragraph 1 of Part D and which items were not covered in the Rejection
Notice and are not Required Items. The approved contractors performing the
Rejected Tenant's Work may perform the Rejected Tenant's Work at the same time
that Landlord's contractors are working in the Demised Premises, provided,
however, that (a) the construction of the Building and of the Demised Premises,
and all installations required to be made by Landlord therein, shall have
reached a point at which, in Landlord's sole judgment, the performance of the
Rejected Tenant's Work will not delay or hamper Landlord in the completion of
the same and (b) Tenant and its contractors shall work in harmony and shall not
interfere with Landlord, Landlord's contractors, any other tenant, or such
tenants' contractors. Landlord may, at any time, deny access to the Demised
Premises to Tenant and/or to any of its contractors in the event that Landlord
shall, in its sole discretion, determine that the performance or manner of
performance of the Rejected Tenant's Work interferes with, delays, hampers, or
prevents Landlord from proceeding with the completion of the construction of the
Building and/or the completion of the Demised Premises or the Acceptable
Tenant's Work at the earliest possible time. Within twenty-four (24) hours after
Landlord's direction (which need not be given in writing and may be given by
Landlord or its agents or contractors to Tenant or its agents or contractors),
Tenant shall, and cause its contractors to, withdraw from the Building and the
Demised Premises and cease all work being performed by it or on its behalf by
any person, firm, or corporation (other than Landlord). Tenant shall pay to
Landlord, as additional rent, within five (5) days after submission to Tenant of
a statement therefor, an amount equal to all costs incurred by Landlord or its
contractor or otherwise, in connection with such early entry by Tenant
including, without limitation, costs for utilities, freight elevator service and
hoisting. All requests for any utility or freight elevator service or hoisting
shall be made by Tenant in writing.
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2. In the event that Tenant shall be permitted to enter
upon the Demised Premises prior to the Commencement Date pursuant to the terms
of paragraph 1 above, such entry shall be deemed to be upon all of the terms,
provisions and conditions of the Lease, except as to the covenant to pay fixed
rent and additional rent payable under Article 5 of this lease. In connection
therewith, Tenant and/or its contractors shall provide to Landlord, and shall
maintain at all times during the performance of any Rejected Tenant's Work,
worker's compensation, public liability and property damage insurance policies,
all of which shall contain limits, be with companies and be in form satisfactory
to Landlord. Certificates of the same shall be furnished to Landlord before
Tenant or its contractors commence to perform the Rejected Tenant's Work.
Landlord shall not be liable in any way for any injury, loss or damage that may
occur to any of Tenant's or Tenant's contractors' decorations, fixtures,
installations, supplies, materials, or equipment prior to the Commencement Date;
any such entry by Tenant and/or its contractors being at their sole risk.
3. To the extent that Tenant shall perform the Rejected
Tenant's Work pursuant to the terms of paragraph 1, whether on or prior to the
Commencement Date or thereafter, Tenant shall pay to Landlord, upon demand, as
additional rent under the lease and in addition to Landlord's contractor
charges, an amount equal to the sum of (a) the cost to Landlord for rubbish
removal, hoisting and similar items in connection with the Rejected Tenant's
Work, plus (b) an amount equal to Landlord's cost for overhead and supervision
of the Rejected Tenant's Work, not to exceed the product of (i) fifteen (15%)
percent and (ii) the amounts charged by the subcontractors and materialmen for
the furnishing and installation of items of Rejected Tenant's Work including,
without limitation, general conditions (as defined in Part C 4. hereof) in
connection therewith. In connection with the Rejected Tenant's Work, no
equipment or materials shall be delivered to, or removed from, the Building or
the Demised Premises by Tenant or its contractor during business days between
the hours of 8:00 A.M. and 3:30 P.M. without the prior written authorization, in
each instance, of Landlord or its agent.
PART F: Delays Caused By Tenant: Additional Expenses:
Tenant has been advised of the importance to Landlord of
completing the construction of the Building and completing the Demised Premises
as quickly as possible and of the great financial loss to Landlord that would
result from a delay in such completion. If Tenant, or persons within Tenant's
control, delays the progress of completion of work required to be performed by
Landlord hereunder or which Landlord has agreed to perform hereunder or pursuant
to any separate agreement by (i) failing to submit to Landlord, within the time
period set forth in Part A hereof, any phase of Tenant's Plans, or failing to
approve any Estimates or failing to make necessary revisions in Tenant's Plans
or the Revised Tenant's Plans within the time required or delaying any
selections of materials to be made by Tenant or (ii) submitting one or more
Revisions to Landlord or (iii) requesting materials, finishes or installations
other than Building standard, provided Landlord uses reasonable dispatch in
obtaining Estimates as provided in Paragraph 1 of Part D or (iv) otherwise
interfering with, or delaying, Landlord's completion of the construction of the
Building or the completion of the Demised Premises, then the date of substantial
completion of the Demised Premises shall be deemed to be the date (the
"Completion Date") upon which the Demised Premises would have been substantially
completed but for the acts or omissions of Tenant or persons within Tenant's
control, and Tenant shall reimburse Landlord for an amount equal to what the
fixed and additional rent for the period of such delay would have been had the
Lease commenced on the Completion Date within five days after submission of a
xxxx therefor, whether or not this lease has commenced. In addition, in the
event the occurrence of any of the events sets forth in (i) - (iv) above results
in any additional expenses to Landlord relating to the sequence in which any of
the work to be done by Landlord under this Work Letter is accomplished, such
additional expenses shall be borne solely by Tenant and shall be paid within
five (5) days after submission of a xxxx therefor, whether or not this lease has
commenced. The above provisions shall be in addition to, and not in limitation
of, any other rights that Landlord shall have under this lease or at law.
Landlord agrees to notify Tenant of any delays set forth in (i) - (iv) above
with reasonable promptness after Landlord's learning of such delay.
In the event that Landlord, in connection with the performance
of any Landlord's Work or Acceptable Tenant's Work, is required to utilize
overtime help either (a) by reason of industry or trade conditions or union
requirements or (b) in order to facilitate, in Landlord's reasonable discretion,
the timely and orderly
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completion of Landlord's Work or Acceptable Tenant s Work, Tenant shall pay to
Landlord, within five (5) days of demand therefor, the additional cost to
Landlord of such overtime help.
PART C: Landlord's Payment of a Portion of Acceptable Tenant's Work:
Landlord agrees that it will pay up to the sum of (i) fifty
(50%) percent of Landlord's Cost of furnishing items 5, 6, 7, 9, 11 and 12(a) of
Landlord's Work as set forth in Part B of this Work Letter, plus (ii)
$272,772.00 on account of Acceptable Tenant's Work to be performed in the
Demised Premises ("Landlord's Contribution"). In the event Tenant fails to spend
the entire amount of Landlord's Contribution on account of Acceptable Tenant's
Work, fifty (50%) percent of the remaining balance shall be paid to Tenant
within sixty (60) days after the completion of Landlord's Work and any
Acceptable Tenant's Work performed by Landlord in the Demised Premises,
whereupon Landlord shall have no further obligation or liability to Tenant with
respect to Landlord's Contribution.
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EXHIBIT D
RULES AND REGULATIONS
1. The rights of tenants in the entrances, corridors and
elevators of the Building are limited to ingress to and egress from the tenants'
premises for the tenants and their employees, licensees and invitees, and no
tenant shall use, or permit the use of, the entrances, corridors, or elevators
for any other purpose. No tenant shall invite to the tenant's premises, or
permit the visit of, persons in such numbers or under such conditions as to
interfere with the use and enjoyment of any of the entrances, corridors,
elevators and other facilities of the Building by other tenants. Fire exits and
stairways are for emergency use only, and they shall not be used for any other
purpose by the tenants, their employees, licensees or invitees. No tenant shall
encumber or obstruct, or permit the encumbrance or obstruction of any of the
sidewalks, entrances, corridors, elevators, fire exits or stairways of the
Building. The Landlord reserves the right to control and operate the public
portions of the Building and the public facilities, as well as facilities
furnished for the common use of the tenants, in such manner as it deems best for
the benefit of the tenants generally.
2. The Landlord may refuse admission to the Building
outside of ordinary business hours to any person not known to the watchman in
charge or not having a pass issued by the Landlord or the tenant whose premises
are to be entered or not otherwise properly identified, and may require all
persons admitted to or leaving the Building outside of ordinary business hours
to register. Any person whose presence in the Building at any time shall, in the
judgment of the Landlord, be prejudicial to the safety, character, reputation
and interests of the Building or of its tenants may be denied access to the
Building or may be ejected therefrom. In case of invasion, riot, public
excitement or other commotion, the Landlord may prevent all access to the
Building 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. The
Landlord may require any person leaving the Building with any package or other
object to exhibit a pass from the tenant from whose premises the package or
object is being removed, but the establishment and enforcement of such
requirement shall not impose any responsibility on the Landlord for the
protection of any tenant against the removal of property from the premises of
the tenant. The Landlord shall, in no way, be liable to any tenant for damages
or loss arising from the admission, exclusion or ejection of any person to or
from the tenant's premises or the Building under the provisions of this rule.
Canvassing, soliciting or peddling in the Building is prohibited and every
tenant shall cooperate to prevent the same.
3. No tenant shall obtain or accept for use in its
premises ice, drinking water, food, beverage, towel, barbering, boot blacking,
floor polishing, lighting maintenance, cleaning or other similar services from
any persons not authorized by the Landlord in writing to furnish such services,
provided that the charges for such services by persons authorized by the
Landlord are not excessive. Such services shall be furnished only at such hours,
in such places within the tenant's premises and under such reasonable
regulations as may be fixed by the Landlord.
4. The cost of repairing any damage to the public
portions of the Building or the public facilities or to any facilities used in
common with other tenants, caused by a tenant or the employees, licensees or
invitees of the tenant, shall be paid by such tenant.
5. No lettering, sign, advertisement, notice or object
shall be displayed in or on the windows or doors, or on the outside of any
tenant's premises, or at any point inside any tenant's premises where the same
might be visible outside of such premises, except that the name of the tenant
may be displayed on the entrance door of the tenant's premises, and in the
elevator lobbies of the floors which are occupied entirely by any tenant,
subject to the approval of the Landlord as to the size, color and style of such
display. The inscription of the name of the tenant on the door of the tenant's
premises shall be done by the Landlord at the expense of the tenant. Listing of
the name of the tenant on the directory boards in the Building shall be done by
the Landlord at its expense; any other listings shall be in the discretion of
the Landlord.
6. No awnings or other projections over or around the
windows shall be installed by any tenant, and only such window blinds as are
supplied or permitted by the Landlord shall be used in a tenant's premises.
Linoleum, tile or other floor covering shall be laid in a tenant's premise only
in a manner approved by the Landlord.
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7. The Landlord shall have the right to prescribe the
weight and position of safes and other objects of excessive weight, and no safe
or other object whose weight exceeds the lawful load for the area upon which it
would stand shall be brought into or kept upon a tenant's premises. If, in the
judgment of the Landlord, it is necessary to distribute the concentrated weight
of any heavy object, the work involved in such distribution shall be done at the
expense of Tenant and in such manner as the Landlord shall determine. The moving
of safes and other heavy objects shall take place only outside of ordinary
business hours upon previous notice to the Landlord, and the persons employed to
move the same in and out of the Building shall be reasonably acceptable to the
Landlord and, if so required by law, shall hold a Master Riggers license.
Freight, furniture, business equipment, merchandise and bulky matter of any
description shall be delivered to and removed from the premises only in the
freight elevators and through the service entrances and corridors, and only
during hours and in a manner approved by the Landlord. Arrangements will be made
by the Landlord with any tenant for moving large quantities of furniture and
equipment into or out of the building.
8. No machines or mechanical equipment of any kind,
other than typewriters and other ordinary portable business machines, may be
installed or operated in any tenant's premises without Landlord's prior written
consent, and in no case (even where the same are of a type so accepted or as so
consented to by the Landlord) shall any machines or mechanical equipment be so
placed or operated as to disturb other tenants but machines and mechanical
equipment which may be permitted to be installed and used in a tenant's premises
shall be so equipped, installed and maintained by such tenant as to prevent any
disturbing noise, vibration or electrical or other interference from being
transmitted from such premises to any other area of the Building.
9. No noise, including the playing of any musical
instruments, radio or television, which, in the judgment of the Landlord, might
disturb other tenants in the Building, shall be made or permitted by any tenant,
and no cooking shall be done in the tenant's premises, except as expressly
approved by the Landlord. Nothing shall be done or permitted in any tenant's
premises, and nothing shall be brought into or kept in any tenant's premises,
which would impair or interfere with any of the Building services or the proper
and economic heating, cleaning or other servicing of the Building or the
premises, or the use or enjoyment by any other tenant of any other premises, nor
shall there be installed by any tenant any ventilating, air conditioning,
electrical or other equipment of any kind which, in the judgment of the
Landlord, might cause any such impairment or interference. No dangerous,
inflammable, combustible or explosive object or material shall be brought into
the Building by any tenant or with the permission of any tenant. Any cuspidors
or similar containers or receptacles used in any tenant's premises shall be
cared for and cleaned by and at the expense of the tenant.
10. No acids, vapors or other materials shall be
discharged or permitted to be discharged into the waste lines, vents or flues of
the Building which may damage them. The water and wash closets and other
plumbing fixtures in or serving any tenant's premises shall not be used for any
purpose other than the purposes for which they were designed or constructed, and
no sweepings, rubbish, rags, acids or other foreign substances shall be
deposited therein.
11. No additional locks or bolts of any kind shall be
placed upon any of the doors. or windows in any tenant's premises and no lock on
any door therein shall be changed or altered in any respect. Additional keys for
a tenant's premises and toilet rooms shall be procured only from the Landlord,
which may make a reasonable charge therefor. Upon the termination of a tenant's
lease, all keys of the tenant's premises and toilet rooms shall be delivered to
the Landlord.
12. All entrance doors in each tenant's premises shall be
left locked and all windows shall be left closed by the tenant when the tenant's
premises are not in use. Entrance doors shall not be left open at any time.
13. Hand trucks not equipped with rubber tires and side
guards shall not be used within the Building.
14. All windows in each tenant's premises shall be kept
closed and all blinds therein, if any, above the ground floor shall be lowered
when and as reasonably required because of the position of the sun, during the
operation of the Building air conditioning system to cool or ventilate the
tenant's premises.
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15. The Landlord reserves the right to rescind, alter
or waive any rule or regulation at any time prescribed for the Building when, in
its judgment, it deems it necessary, desirable or proper for its best interest
and for the best interests of the tenants, and no alteration or waiver of any
rule or regulation in favor of one tenant shall operate as an alteration or
waiver in favor of any other tenant. The Landlord shall not be responsible to
any tenant for the non-observance or violation by any other tenant of any of
the rules and regulations at any time prescribed for the Building.
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EXHIBIT E
DEFINITIONS
(a) The term mortgage shall include an indenture of mortgage
and deed of trust to a trustee to secure an issue of bonds, and the term
mortgagee shall include such a trustee.
(b) The terms include, including and such as shall each be
construed as if followed by the phrase "without being limited to".
(c) The term obligations of this lease, and words of like
import, shall mean the covenants to pay rent and additional rent under this
lease and all of the other covenants and conditions contained in this lease. Any
provision in this lease that one party or the other or both shall do or not do
or shall cause or permit or not cause or permit a particular act, condition, or
circumstance shall be deemed to mean that such party so covenants or both
parties so covenant, as the case may be.
(d) The term Tenant's obligations hereunder, and words of like
import, and the term Landlord's obligations hereunder, and words of like import,
shall mean the obligations of this lease which are to be performed or observed
by Tenant, or by Landlord, as the case may be. Reference to performance of
either party's obligations under this lease, shall be construed as "performance
and observance".
(e) Reference to Tenant being or not being in default
hereunder, or words of like import, shall mean that Tenant is in default in the
performance of one or more of Tenant's obligations hereunder, or that Tenant is
not in default in the performance of any of Tenant's obligations hereunder, or
that a condition of the character described in Section 25.01 has occurred and
continues or has not occurred or does not continue, as the case may be.
(f) References to Landlord as having no liability to Tenant or
being without liability to Tenant, shall mean that Tenant is not entitled to
terminate this lease, or to claim actual or constructive eviction, partial or
total, or to receive any abatement or diminution of rent, or to be relieved in
any manner of any of its other obligations hereunder, or to be compensated for
loss or injury suffered or to enforce any other kind of liability whatsoever
against Landlord under or with respect to this lease or with respect to Tenant's
use or occupancy of the Demised Premises.
(g) The term laws and/or requirements of public authorities
and words of like import shall mean laws and ordinances of any or all of the
Federal, state, city, county and borough governments and rules, regulations,
orders and/or directives of any or all departments, subdivisions, bureaus,
agencies or offices thereof, or of any other governmental, public or
quasi-public authorities, having jurisdiction in the premises, and/or the
direction of any public officer pursuant to law.
(h) The term requirements of insurance bodies and words of
like import shall mean rules, regulations, orders and other requirements of the
New Jersey Board of Fire Underwriters and/or the New Jersey Fire Insurance
Rating Organization and/or any other similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(i) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain xxxx working order
and condition.
(j) Reference to termination of this lease includes expiration
or earlier termination of the term of this lease or cancellation of this lease
pursuant to any of the provisions of this lease or to law. Upon a termination of
this lease, the term and estate granted by this lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this lease, or (ii) except for such obligation as by
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its nature or under the circumstances can only be, or by the provisions of this
lease, may be, performed after such termination, and, in any event, unless
expressly otherwise provided in this lease, any liability for a payment which
shall have accrued to or with respect to any period ending at the time of
termination shall survive the termination of this lease.
(k) The term in full force and effect when herein used in
reference to this lease as a condition to the existence or exercise of a right
on the part of Tenant shall be construed in each instance as including the
further condition that at the time in question no default on the part of Tenant
exist, and no event has occurred which has continued to exist for such period of
time (after the notice, if any, required by this lease), as would entitle
Landlord to terminate this lease or to dispossess Tenant.
(l) The term Tenant shall mean Tenant herein named or any
assignee or other successor in interest (immediate or remote) of Tenant herein
named, while such Tenant or such assignee or other successor in interest, as the
case may be, is in possession of the Demised Premises as owner of the Tenant's
estate and interest granted by this lease and also, if Tenant is not an
individual or a corporation, all of the persons, firms and corporations then
comprising Tenant.
(m) Words and phrases used in the singular shall be deemed to
include the plural and vice versa, and nouns and pronouns used in any particular
gender shall be deemed to include any other gender.
(n) The rule of ejusdem generis shall not be applicable to
limit a general statement following or referable to an enumeration of specific
matters to matters similar to the matters specifically mentioned.
(o) All references in this lease to numbered Articles,
numbered Sections and lettered Exhibits are references to Articles and Sections
of this lease, and Exhibits annexed to (and thereby made part of) this lease, as
the case may be, unless expressly otherwise designated in the context.
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EXHIBIT F
CLEANING SPECIFICATIONS
1. General
All linoleum, rubber, asphalt tile and other similar types of
flooring (that may be waxed) to be swept nightly, using
approved dust-check type of mop.
All carpeting and rugs to be carpet swept nightly and vacuum
cleaned weekly.
Hand dust and wipe clean all furniture, fixtures and window
xxxxx nightly; wash xxxxx when necessary.
Empty and clean all waste receptacles nightly and remove waste
paper and waste materials.
Empty and clean all ash trays and screen all sand urns nightly
including all ash trays in all toilets.
Dust interior of all waste disposal cans and baskets nightly;
damp-dust as necessary.
Wash clean all water fountains and coolers nightly.
Hand dust all door and other ventilating louvres within reach,
as necessary.
Dust all telephones as necessary.
Sweep all private stairway structures nightly.
2. Lavatories in the Core
Sweep and wash all lavatory floors nightly using proper
disinfectants. Wash and polish all mirror; powder shelves,
bright work and enameled surfaces in all lavatories nightly.
Scour, wash and disinfect all basins, bowls and urinals
throughout all lavatories, nightly.
Wash all toilet seats, nightly.
Empty paper towel receptacles and transport wastepaper to
designated area in basements, nightly (towels, soap and
receptacles to be furnished by Tenant).
Fill toilet tissue holders nightly.
Empty sanitary disposal receptacles, nightly.
-62-
Thoroughly wash and polish all wall tile and stall surface as
often as necessary.
3. High Dusting
Dust all Venetian blinds, frames, charts, graphs and similar
wall hangings and vertical surfaces not reached in nightly
cleaning, quarterly.
Cleaning of light fixtures shall be for account of Tenant.
4. Glass
Exterior windows to be cleaned inside and outside
approximately once every three (3) months (or more often, if
required by Landlord), weather permitting.
5. Conditions
As herein used "nightly" means five nights a week, Monday
through Friday, during regular cleaning hours (between 6:00
P.M. and 6:00 A.M.) and excludes legal and union holidays.
Tenant will pay for electricity, power and hot and cold water
in the Demised Premises for cleaning during the regular
cleaning hours which are after hours.
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Airborne Express
January 6, 1995
Xx. Xxxxxx Xxxxxxxxx
Philipp Brothers Chemicals, Inc.
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Re: Premises First Modification and Extension of Lease by and between 400
Kelby Associates, as Landlord, and Philipp Brothers Chemicals, Inc, as
Tenant A portion of the fourteenth (14th) floor at Xxx Xxxxxx Xxxxx,
Xxxx Xxx, Xxx Xxxxxx
Dear Xx. Xxxxxxxxx:
Enclosed herewith, please find one (1) fully executed, original counterpart with
regard to the above referenced lease modification and extension. I trust this
document will complete your files.
If you have any questions, please do not hesitate to contact me.
Very truly yours,
/s/ Xxxxxxx X. Xxxxxx
---------------------
BRS:jp
enclosure
cc: Xxxxxxx Xxxxxxxxx w/encl
Xxx Xxxxxxx w/encl
Xxxxxxx Xxxxxx, Esq. w/o encl
Xxxx Xxxxxx Vaganay w/o encl
Xxxxx Xxxxx w/encl
FIRST MODIFICATION AND EXTENSION OF LEASE DATED AS OF DECEMBER
1994 BETWEEN 400 KELBY ASSOCIATES, AS LANDLORD, AND PHILIPP
BROTHERS CHEMICALS, INC., AS TENANT FOR LEASE OF PREMISES
LOCATED ON THE FOURTEENTH (14TH) FLOOR IN THE BUILDING AT 400
KELBY STREET, FORT XXX, NEW JERSEY
WHEREAS, the parties hereto executed a Lease dated July 25,
1986 between 400 Kelby Associates, a New Jersey Limited Partnership with offices
at 000-00 Xxxxxx Xxxxxxxxx, Xxxxxx Xxxxx, Xxx Xxxx 00000, as Landlord and
Philipp Brothers Chemicals, Inc., a New York corporation having an address at 00
Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as Tenant, (hereinafter the "Original
Lease");
WHEREAS, the parties executed a Supplementary Agreement on or
about December 1, 1986, whereby the Commencement Date was fixed at December 1,
1986 and the Expiration Date was fixed at November 30, 1996; and
WHEREAS, the parties hereto desire to modify and extend the
Original Lease as set forth herein:
NOW, THEREFORE, in consideration of the premises and the
mutual terms, covenants and conditions contained in the Original Lease, Landlord
and Tenant hereby agree as follows:
1. All capitalized terms herein shall have the same
meanings as contained in the Original Lease.
2. Except as amended herein, the terms of the Original
Lease shall remain in full force and effect
3. In the event of any inconsistencies between the terms
of this First Modification and Extension to Lease (the "First Modification and
Extension to Lease") and the Original Lease, the terms of this First
Modification and Extension to Lease shall govern.
4. Article 1 of the Original Lease is amended as
follows:
(a) Paragraph 1.03 shall be amended to reflect that the
Expiration Date will be 12:00 P.M. on December 31, 2004.
(b) Paragraph 1.04 (a) is hereby amended to include the
following as "fixed rent":
Term Annual Rent Monthly Rent
---- ----------- ------------
January 1, 1995 - December 31, 1999 $591,006.00 $49,250.50
January 1, 2000 - December 31, 2004 $653,516.25 $54,459.69
5. Articles 3 and 4 are deleted in their entirety and
the following language is substituted in place of Article 3:
3.01 Neither Landlord or Landlord's agents have made any
representations or promises with respect to the physical condition of the
Building, the Demised Premises, or the Land except as expressly set forth
herein. Tenant has inspected the Building and the Demised Premises and is
thoroughly acquainted with their condition and agrees to take the same "as is"
and acknowledges that the taking of possession of the Demised Premises by Tenant
shall be conclusive evidence that the said Demised Premises and the Building
were in good and satisfactory condition at the time such possession was so
taken.
Notwithstanding the foregoing, Landlord agrees to provide
Tenant with an allowance of $187,993.00 towards work to be performed by Landlord
in the Demised Premises, ("Landlord's Work"), as reflected in the space plan
drawing submitted by BFI Planning and Design dated October 3, 1994 (the "BFI
Plans"). Tenant may make changes or revisions to the BFI Plans, however, Tenant
will be responsible for any fees, expenses or any aspect of Landlord's Work at
the Demised Premises that results in a cost above $187,993.00. Landlord agrees
to use its best efforts to commence Landlord's Work within a reasonable period
of time after all required permits have been issued from the Borough of Fort
Xxx. Tenant agrees to sign off on the final architectural plan prior to
submission to the Borough of Fort Xxx for the aforementioned permits.
In addition, Landlord shall reimburse Tenant $1,500.00 for
space planning services within 30 days after Tenant submits a xxxx for same to
Landlord. Landlord will also provide construction drawings based on the BFI
Plans at its sole cost and expense. Tenant acknowledges that Landlord's Work
will be performed while Tenant is in possession of the Demised Premises.
Landlord will use its best efforts to minimize any inconvenience to Tenant and
will use its best efforts to complete a portion of the work after business
hours. Tenant will be responsible for installing any and all of its computers or
computer network systems and its telephone equipment and/or relocating said
equipment at its sole cost and expense, and at absolutely no liability to
Landlord.
6. Paragraph 5.01(b) shall be amended to reflect that
the "Base Tax Rate", defined in Paragraph 5.01(b) shall mean the Tax Rate for
the calendar year 1994. Notwithstanding any other provision in the Lease, the
Tenant shall not be responsible for any increase in taxes and/or operating
expenses during the 1995 calendar year.
7. Paragraph 5.07(a)(iii) shall be modified to exclude
overtime charges for HVAC use by other tenants.
8. Paragraph 5.07(a)(xii) shall be amended to include
advertising and other costs related to the procurement of new tenants for the
building.
9. Paragraph 5.07(c) shall be amended to reflect that
"the Base Operating Expenses", defined in Paragraph 5.07(c) shall mean the
Operating Expenses for the calendar year 1994.
10. Section 9.02(a), (c)(ii) and (c)(iii) shall be
amended to read as follows:
(a) a term sheet, or draft of the proposed assignment or
sublease, the effective or commencement date of which shall be not less than 30
nor more than 180 days after the giving of such notice,
(c)(ii) terminate this lease (if the proposed transaction is
an assignment or a sublease of all or substantially all of the Demised Premises,
and if said sublease terminates within two (2) years prior to the expiration
date of the lease).
(c)(iii) terminate this lease with respect to the Leaseback
Space (if the proposed transaction is a sublease of part of the Demised Premises
and terminates within two (2) years prior to the expiration date of the lease).
11. Section 9.07 shall be modified to include that if
Landlord consents to the proposed assignment or sublease, said consent shall be
given within thirty (30) days after notice from Tenant pursuant to Section 9.02
provided Tenant is in complete compliance with Article 9.
12. Section 9.08(b) shall be modified to reflect that
tenant shall have 120 days to execute and deliver the assignment or sublease to
Landlord.
13. Paragraph 16.03(b)(ii)(a) shall be amended a reflect
a rent reduction of $28,413.75 should Landlord exercise its option to
discontinue furnishing electrical service to the Tenant
14. Paragraph 18.05 amended to reflect a total number of
sixty-five (65) parking spaces.
15. Article 31 shall be amended to add the following
language:
Article 31 Broker
31.01 Both parties covenant, warrant and represent that
there was no broker or finder except C.B. Commercial Real Estate Group, Inc. and
Xxxxxx X. Xxxxxx Company of New Jersey in consummating this First Modification
and Extension of Lease and that no conversations or negotiations were had with
any broker or finder except C.B. Commercial Real Estate Group, Inc. and Xxxxxx
X. Xxxxxx Company of New Jersey concerning the Demised Premises. Both parties
agree to hold the other harmless against any claims for a brokerage, finder or
other commission or fee arising out of any claim by any broker or finder except
C.B. Commercial Real Estate Group, Inc. Tenant represents that Xxxxxx X. Xxxxxx
Company of New Jersey has represented Tenant as its Broker in connection with
this First Modification and Extension of Lease. Notwithstanding this, Landlord
agrees, that upon execution of the First Modification and Extension of Lease, it
shall be solely responsible for any brokerage fees in connection with realty
services by C.B. Commercial Real Estate Group, Inc. and Xxxxxx X. Xxxxxx Company
of New Jersey.
16. Renewal Option: The following Article 40 shall be
added to the Lease:
40.01 Provided that the Original Lease as modified and
extended by the Fee Modification and Extension of Lease (the "Modified Lease"),
shall be in full force and effect on the Expiration Date without default on the
part of Tenant hereunder, Tenant shall have the option (hereinafter referred to
as the "Renewal Option") to renew the Modified Lease for a renewal term
(hereinafter referred to as the "Renewal Term") of five (5) years, to commence
on the day after the Expiration Date (hereinafter referred to as the "Renewal
Term Commencement Date") and to expire five (5) years thereafter (herein
referred to as the "Renewal Term Expiration Date"). Tenant shall exercise the
Renewal Option by sending a written notice thereof (which notice is hereinafter
referred to as the "Renewal Notice") to Landlord by certified mail, return
receipt requested, not less than twelve (12) months prior to the Expiration
Date. If Tenant shall send the Renewal Notice within the time and in the manner
hereinbefore provided, the Modified Lease shall be deemed renewed for the
Renewal Term upon the terms, covenants and
conditions hereinafter contained. If Tenant shall fail to send the Renewal
Notice within the time and in a manner hereinbefore provided, the Renewal Option
shall cease and terminate, and Tenant shall have no further option to renew the
Modified Lease. If the Modified Lease has been assigned or if greater than
twenty-five (25%) percent of the Demised Premises has been sublet, this Renewal
Option shall be deemed null and void and neither Tenant nor any assignee or
subtenant shall have the right to exercise such option during the term of such
assignment or sublease. If the Tenant assigns or subleases to an Affiliate as
defined by Section 9.11 of the Original Lease, the renewal option shall remain
in effect provided Tenant remains responsible for all obligations arising under
the Modified Lease.
40.02 The Renewal Term, if any, shall be upon, and subject
to, all of the terms, covenants and conditions provided in the Modified Lease
for the original term hereof, except that:
(a) any terms, covenants, or conditions hereof that are
expressly or by their nature inapplicable to the Renewal Term (including,
without limitation, Articles 3, 4, 39 and 40 hereof) shall not apply during such
Renewal Term;
(b) the annual fixed rent payable by Tenant during each
year of the Renewal Term (hereinafter referred to as the "Renewal Rent"),
subject to adjustment as otherwise provided in the Modified Lease provided,
shall be an amount equal to the fair market rental value of the Demised
Premises, to be determined as provided in Section 40.03 hereof and to be
calculated as the Renewal Term Commencement Date on the basis of a new five (5)
year lease of the Demised Premises;
(c) effective upon the Renewal Term Commencement Date,
the Tenant shall also pay additional rent pursuant to Article 5; and (i) the
Base Tax Year shall be deemed to be the year set forth in Section 5.01(b), and
(ii) the Base Operating Expenses shall be deemed to be the amount set forth in
Section 5.07(c).
40.03 In the event that Tenant shall exercise the Renewal
Option as provided in Section 40.01 hereof, the Renewal Rent shall be determined
jointly by Landlord and Tenant, and such determination shall be confirmed in a
writing (hereinafter referred to as a "Rental Agreement") to be executed in
recordable form by Landlord and Tenant not later than the day (hereinafter
referred to as the Determination Date) which shall be ninety (90) days next
preceding the Expiration Date. In the event that Landlord and Tenant shall have
failed to join in executing a Rental Agreement on or before the Determination
Date because of their failure to agree upon the Renewal Rent then the Renewal
Rent shall be determined by arbitration as follows:
(a) Landlord and Tenant shall each appoint an arbitrator
by written notice given to the other party hereto not later than thirty (30)
days after the Determination Date. If either Landlord or Tenant shall have
failed to appoint an arbitrator within such period of time and thereafter shall
have failed to do so by written notice given within a period of five (5) days
after notice by the other party requesting the appointment of such arbitrator,
then such arbitrator shall be appointed by the American Arbitration Association
or its successor (the branch office of which is located in or closest to the
Borough of Fort Xxx, County of Bergen), upon request of either Landlord or
Tenant, as the case may be;
(b) the two (2) arbitrators appointed as above provided
shall appoint a third (3rd) arbitrator by written notice given to both Landlord
and Tenant, and, if they fail to do so by written notice given within thirty
(30) days after their appointment, such third (3rd) arbitrator shall be
appointed as above provided for the appointment of an arbitrator in the event
either party fails to do so;
(c) all of such arbitrators shall be real estate
appraisers having not less than ten (10) years experience in appraising the fair
market rental value of real estate similar to the Building located within or
adjacent to the Borough of Fort Xxx, County of Bergen and whose appraisals are
acceptable to savings banks or life insurance companies doing business in the
State of New Jersey;
(d) the three (3) arbitrators, selected as aforesaid,
forthwith shall convene and render their decision in accordance with the then
applicable rules of the American Arbitration Association or its successor, which
decision shall be strictly limited to a determination of the Renewal Rent as the
case may be, within twenty (20) days after the appointment of the third (3rd)
arbitrator. The decision of such arbitrators shall be in writing and the vote of
the majority of them shall be the decision of all and, insofar as the same is in
compliance with the provisions and conditions of this Section 40.03 and of
Section 40.04 hereof shall be binding upon Landlord and Tenant. Duplicate
original counterparts of such decision shall be sent forthwith by the
arbitrators by certified mail, return receipt requested, to both Landlord and
Tenant. The arbitrators, in arriving at their decision, shall be entitled to
consider all testimony and documentary evidence that may be presented at any
hearing, as well as facts and data which the arbitrators may discover by
investigation and inquiry outside such hearings. If, for any reason whatsoever,
a written decision of the arbitrators shall not be rendered within thirty (30)
days after the appointment of the third (3rd) arbitrator, then, at any time
thereafter before such decision shall have been rendered, either party may apply
to a court of competent jurisdiction sitting in the Borough of Fort Xxx, County
of Bergen, State of New Jersey (but not by a new arbitration proceeding) as may
be proper, to determine the question in dispute consistently with the provisions
of this lease. The cost and expense of such arbitration, action, proceeding, or
otherwise shall be borne equally by Landlord and Tenant
40.04 Notwithstanding anything to the contrary contained in
Section 40.03 hereof, the Renewal Rent shall in no event be less than an amount
(hereinafter referred to as the "Renewal Minimum Rent") equal to the fixed rent
reserved in Section 1.04(a) hereof.
40.05 In the event that Tenant shall exercise the Renewal
Option as provided in Section 40.01 hereof and the Renewal Rent shall not be
finally determined pursuant to the terms of Section 40.03 hereof on or before
the Renewal Term Commencement Date then:
(a) The annual fixed rent payable by Tenant during the
Renewal Term until the Renewal Rent shall be so finally determined shall,
subject to adjustment as therein provided, be equal to the Renewal Minimum Rent
calculated at the then market rate per square foot as Base Rent, plus additional
rent charges for Operating Expenses, Real Estate Taxes and other adjustments as
set forth in Article 5 herein. Thereafter, when the Renewal Rent finally becomes
determined pursuant to the provisions of this Article 42, the Renewal Rent shall
be re-computed with appropriate retroactive charges or credits to Landlord for
the period in which Tenant paid any sums below the newly determined Renewal
Rent; and,
(b) In the event that the Renewal Rent as finally
determined pursuant to the terms of Section 40.03 hereof, shall be greater than
the Renewal Minimum Rent (i) the annual fixed rent payable by Tenant for the
balance of the Renewal Term shall be and become the Renewal Rent as finally
determined, and (ii) Tenant shall forthwith pay to Landlord an amount equal to
the difference between (x) the sum of the actual rental payments paid to
Landlord during the Renewal Term before such final determination and (y) the sum
of the rental payments that Tenant would have paid to Landlord if the Renewal
Rent were finally determined prior to the Renewal Term
Commencement Date plus additional rent charges for Operating Expenses, Real
Estate Taxes and other adjustments as set forth in Article 5 herein.
Exhibit C is deleted in its entirety.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals on the date and year first written above.
400 KELBY ASSOCIATES
By: Lynwood Construction Co., Inc., General Partner
By: /s/
-------------------------------------
PHILIPP BROTHERS CHEMICAL, INC.
By: /s/
-------------------------------------
STATE OF NEW JERSEY )
) ss:
COUNTY OF BERGEN )
On this 30th day of December, 1994 before me personally came
X. Xxxxxxxxx to me known, who, being duly sworn, did depose and say that he
resides in Brooklyn, NY and that he is the Vice President of Philipp Brothers
Chemical, Inc., the corporation in and who executed the foregoing instrument as
TENANT, and that he duly acknowledged to me that he executed the same.
/s/ Xxxxxx X. Xxxxxxxxxxx
-------------------------
Notary Public
XXXXXX X. XXXXXXXXXXX
Notary Public, State of New Jersey
# 2033060
Comm. Expires 8-14-87
