EXHIBIT 10.9
LEASE AGREEMENT
Between
000 XXXXXXXXXX XXXXXX, X.X.X., Xxxxxxxx
and
SUNGARD RECOVERY SERVICES LP, Tenant
Prepared by:
Xxxxxxx X. Xxxxxx, Esq.
Schiffman, Berger, Xxxxxxx,
Xxxxxxx & Xxxxxx, P.C.
Three University Plaza - Suite 410
X.X. Xxx 000
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
(000) 000-0000
TABLE OF CONTENTS
1. Commencement Date of Term .......................................... 5
2. Rent................................................................ 5
3. Additional Rent..................................................... 6
4. Repairs and Maintenance Obligations of Tenant.......................10
5. Repairs and Maintenance Obligation of Landlord......................11
6. Utilities and Personal Property Taxes...............................12
7. Glass, Damage by Tenant.............................................13
8. Use of Premises.....................................................13
9. Alterations and Improvements........................................14
10. Laws and Ordinances.................................................19
11. Insurance...........................................................20
12. Landlord's Liability................................................23
13. Default of Landlord.................................................24
14. Default of Tenant...................................................24
15. Access to Premises..................................................28
16. Hold Harmless.......................................................29
17. Assignment or Sublease .............................................30
18. Condemnation........................................................31
19. Fire or Casualty Loss...............................................32
20. Estoppel Certificate................................................33
21. Signage.............................................................33
22. Brokerage Commission................................................34
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23. Unavoidable Delays..................................................34
24. Subordination.......................................................35
25. Security Deposit....................................................35
26. Intentionally Omitted...............................................35
27. Intentionally Omitted...............................................35
28. Environmental Covenants.............................................35
29. Auction Sales.......................................................37
30. Holding Over........................................................37
31. Quiet Possession....................................................38
32. Representations and Warranties of Landlord..........................38
33. Notices.............................................................40
34. Parties Bound.......................................................41
35. Abandoned Personal Property.........................................41
36. Article Headings....................................................41
37. Governing Law.......................................................41
38. Letter of Acceptance................................................41
39. Tenant's Right to Lease Unit B......................................42
40. Options to Renew....................................................42
41. Right of First Offer on Purchase of Landlord's Premises.............43
42. Conditional Guaranty of SunGard Data Systems, Inc...................43
43. Mobile Data Center..................................................43
44. Rooftop Rights......................................................44
45. Redundant Conduit Line..............................................45
46. Supplemental HVAC...................................................46
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47. Venting.............................................................47
48. Grounding of Equipment..............................................47
49. Backup Electrical Generators........................................47
50. Due Execution.......................................................48
51. Payment of Tenant's Legal Costs Under Special Circumstances.........48
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LEASE AGREEMENT
THIS AGREEMENT, made this 21st day of August, 2002, By and Between:
000 XXXXXXXXXX XXXXXX, L.L.C., x/x Xxxxx
Xxxxxxxxxxx, X.X.X., 00 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 (hereinafter
referred to as "Landlord"),
and
SUNGARD RECOVERY SERVICES LP,
0000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000
(hereinafter referred to as "Tenant").
W I T N E S S E T H:
Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, those certain premises which consist of approximately 104,171 square
feet of space (consisting of 86,297 square feet of ground floor area and 00,000
xxxxxx xxxx xx xxxxxx xxxxx/xxxxxxxxx xxxx) (the "Demised Premises") and the
exclusive right to 157 parking spaces at 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000 (the "Building"), all as more particularly depicted on Schedule "A"
annexed hereto.
TO HAVE AND TO HOLD the premises for a term of twelve (12) years and
eight (8) months (the "Initial Term") commencing on February 1, 2003 (the
"Commencement Date"), and ending on September 30, 2015 (the "Termination Date").
IN CONSIDERATION OF THE FOREGOING, and of the mutual promises,
agreements, conditions, covenants and terms herein set forth, the Landlord and
the Tenant further covenant and agree as follows:
1. Commencement Date of Term: The term hereof shall commence on the
Commencement Date as defined above.
2. Rent:
2.1 Fixed Rent: The Tenant hereby agrees to pay to the Landlord
an aggregate rental for the Initial Term, in cash or check, lawful
money of the United States of America, payable in monthly installments as set
forth on Schedule "C" annexed hereto, payable on the first day of each and every
month, in advance, throughout the term of this Lease (hereinafter, "Fixed
Rent"), commencing February 1, 2003 (the "Rent Commencement Date"). The rent
shall be paid at the office of the Landlord set forth above on this page, or at
such other place as may hereafter be designated by the Landlord. Fixed Rent
shall be paid to the Landlord without notice or demand and without deduction,
set-off or other charge, except as may otherwise be provided for herein. The
total aggregate Fixed Rent for the Demised Premises over the Initial Term,
subject as aforesaid, is Twenty-Seven Million Two Hundred Ten Thousand
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Eight Hundred Fifty-Four and 15/100 Dollars ($27,210,854.15). The parking spaces
are being provided to Tenant at no additional charge.
2.2 Except as otherwise specifically provided for herein, any
sums due the Tenant from the Landlord under any of the provisions of this Lease,
or arising from or out of the Landlord's failure to comply with, or perform any
of the terms of this Lease, shall in all cases be enforced by Tenant by means
other than deduction from rent. No payment by Tenant or receipt by Landlord of a
lesser amount than any payment of Fixed Rent or Additional Rent herein
stipulated shall be deemed to be other than on account of the earliest
stipulated such rent or rents then due and payable.
2.3 If checks issued by Tenant shall be dishonored a late charge
shall apply and if checks are dishonored on two (2) or more occasions within any
six (6) month period, Landlord may require, by giving written notice to Tenant
that all future rental payments are to be made by cash, cashier's check, or
money order, and that the delivery of Tenant's personal or corporate check will
no longer constitute a payment of rental as provided in this Lease. Any
acceptance of personal or corporate check thereafter by Landlord shall not be
construed as a subsequent waiver of said rights except as to the check so
accepted.
2.4 If any installment of rent or any sum due from Tenant, under
this or any other agreement between Landlord and Tenant, shall not be received
by Landlord or Landlord's designee from Tenant within ten (10) days after said
amount is due, then Tenant shall pay to Landlord a late charge equal to five
percent (5%) of the amount past due, plus any reasonable attorneys' fees
incurred by Landlord by reason of Tenant's failure to pay rent and/or other
charge when due hereunder. Acceptance of such late charge by the Landlord shall
in no event constitute a waiver of Tenant's default with respect to such overdue
amount, nor prevent Landlord from exercising any of the other rights and
remedies granted hereunder, unless accompanied by the applicable installment of
rent or other sum due. The aforesaid late charge may be repeated each month that
the same rent or charge remains unpaid.
3. Additional Rent:
3.1 Tenant shall be fully responsible to pay as Additional Rent
hereunder all taxes, costs, charges, maintenance, and operational expenses
associated with the Demised Premises together with all interest and penalties
that may accrue thereon in the event of the Tenant's failure to pay such
amounts, and all damages, costs and expenses which the Landlord may incur by
reason of any default of the Tenant or failure on the Tenant's part to comply
with the terms of this Lease, except those specifically allocated to Landlord
under Article 5 of this Lease. Therefore, and without limitation, commencing at
the Commencement Date, Tenant shall pay to Landlord sixty and forty
one-hundredths percent (60.40%) of the total costs of the following items,
herein called "Additional Rent":
A. All real estate taxes on the land, as more fully
described on Schedule "H" attached hereto and made a part hereof (the "Land"),
site improvements and the Building (hereinafter collectively, the "Landlord's
Premises"). Said real estate taxes shall include all real estate taxes and
assessments that are levied upon and/or assessed against the Landlord's
Premises, including any taxes which may be levied on rents, except that as to
assessments, Landlord shall elect to pay same over the longest period permitted
by law and only the current
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year's installment, including interest, shall be added into Tenant's
calculation. In addition, Tenant shall reimburse Landlord for Landlord's
reasonable costs incurred in appealing taxes and/or assessments on Landlord's
Premises, including reasonable legal fees, expert witness fees and other proper
costs but Tenant will not be liable to pay a reimbursement in excess of any
actual tax savings resulting from such an appeal. If any such appeal is
successful, any recovery net of such expenses shall be credited
(proportionately) to Tenant's obligation hereunder. Except during the final
three (3) years of the then Term, Tenant shall have the right to appeal tax
assessments on the Landlord's Premises at Tenant's sole cost and expense (such
costs, including, without limitation, reasonable counsel fees shall be
reimbursed to Tenant from any tax refunds with the net refunds to be credited
pro rata to all tenants of Landlord's Premises, including the Tenant); provided
that if such appeal is unsuccessful or if it results in an increase in real
estate taxes, Tenant shall bear all such costs, attorneys fees and tax
increases. Notwithstanding the foregoing, the foregoing taxes shall specifically
exclude income taxes assessed against the Landlord, franchise taxes, estate
taxes, sales taxes, corporate income taxes, capital stock taxes, employment
benefit taxes, social security taxes, worker's compensation taxes, capital levy,
succession, inheritance, or transfer taxes payable by the Landlord, corporate
franchises, capital stock, loans and bonus taxes imposed upon any owner of the
Land, any late fees, penalties or interest with respect to the payment of any
such taxes, and any income, profits or revenue tax. Landlord hereby agrees to
pay all such taxes so as to include and obtain any applicable discount for early
payment.
B. All premiums and deductible costs paid by Landlord for
the Landlord's Premises only associated with Insurance (as described in Articles
11.3 and 11.4 below).
C. All costs to maintain, repair and replace common areas,
parking lots, sidewalks, canopies, driveways, hallways and utility rooms, lines
and facilities and other common areas within the Land. There shall also be
included any parking charges, utilities surcharges, or any other costs levied,
assessed or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof, promulgated by any governmental
authority in connection with the use or occupancy of the Demised Premises or the
Parking Lot (as defined in Article 43 below) from and after the Commencement
Date. Any and all such replacement costs shall be amortized over the useful
economic life of such improvements.
D. On or about the Rent Commencement Date, Landlord shall
submit to Tenant a statement of the anticipated monthly Additional Rent for the
period between the Rent Commencement Date, and the following December 31, and
Tenant shall pay this Additional Rent on a monthly basis concurrently with the
payment of the Fixed Rent. Tenant shall continue to make said monthly payments
until notified by Landlord of a change thereof. By March 1 of each calendar year
(commencing in 2004), Landlord shall use its best efforts to give Tenant a
statement showing the total Additional Rent for the Landlord's Premises for the
prior calendar year, and for 2003 prorated from the Rent Commencement Date (an
"Operating Expense Statement").
E. In the event the total of the monthly payments which
Tenant has made for the prior calendar year be less than the Tenant's actual
share of such Additional Rent, then Tenant shall pay the difference in a lump
sum within thirty (30) days after receipt of such statement from Landlord and
shall concurrently pay the difference between the
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total previous monthly payments made in the then calendar year and the total of
monthly payments calculated as Additional Rent based on the prior year's
experience. Any overpayment by Tenant shall be credited towards the Fixed Rent
and/or Additional Rent next coming due. The actual Additional Rent for the prior
year shall be used for purposes of calculating the anticipated monthly
Additional Rent for the then current year with actual determination of such
Additional Rent after each calendar year as above provided. Even though the term
has expired and Tenant has vacated the Demised Premises, when the final
determination is made of Tenant's share of said Additional Rent for the year in
which this Lease terminates, Tenant shall pay any increase due over the
estimated Additional Rent previously paid within thirty (30) days after demand,
and, conversely, any overpayment made shall be immediately rebated by Landlord
to Tenant within thirty (30) days after such notice to Tenant, and this
provision shall survive termination for said purpose. Failure of Landlord to
submit Operating Expense Statements to Tenant as called for herein within six
(6) months after the end of any applicable lease year or one (1) year from the
expiration of the Initial Term, or any renewal term, as the case may be, shall
be deemed to be a waiver of Tenant's requirement to pay sums as herein provided.
In addition, Tenant shall not be responsible or liable for the payment of any
amount which should have been included in an Operating Expense Statement as
Additional Rent for a particular calendar year that was not so included.
F. Each Operating Expense Statement shall be conclusive and
binding upon Tenant unless, within one hundred twenty (120) days after receipt
of such Operating Expense Statement, Tenant shall notify Landlord that it
disputes the correctness of the Operating Expense Statement, specifying the
particular respects in which said Operating Expense Statement is claimed to be
incorrect. Tenant, or an independent certified public accountant who is hired by
Tenant on a noncontingency fee basis and who offers a full range of accounting
services, shall have the right, during regular business hours, to review
Landlord's invoices relating to the disputed items of operating expenses for the
immediately preceding lease year; or at Landlord's sole discretion and in lieu
of such review, Landlord will provide Tenant with an audited statement. Tenant
shall (and shall cause its employees, agents and consultants to) keep the
results of any such review or audited statement strictly confidential. If such
review or audited statement shows that the estimated payments by Tenant on
account of operating expenses exceeded the amounts to which Landlord is entitled
hereunder for the immediately preceding lease year, Landlord shall credit or
refund the amount of such excess as provided herein. In addition, if the
Operating Expense Statement overstated the actual operating expenses by five
percent (5%) or more, then Landlord shall pay to Tenant the reasonable and
necessary fees and costs associated with such audit. If Tenant shall dispute an
Operating Expense Statement, pending the determination of such dispute, Tenant
shall pay the estimated payments claimed by Landlord to be due from Tenant on
account of operating expenses in accordance with the applicable Operating
Expense Statement, without prejudice to Tenant's position. All costs and
expenses of such review or audited statement shall be paid by Tenant except as
otherwise specifically provided for in this Section 3.1 F. If Tenant does not
notify Landlord in writing of any objection to any Operating Expense Statement
within one hundred twenty (120) days after receipt thereof, then Tenant shall be
deemed to have waived such objection.
3.2 Anything in Section 3.1 to the contrary notwithstanding,
Additional Rent shall not include: (i) depreciation on the Building or the
parking facilities or equipment therein; (ii) salaries of employees and
executives above the grade of building manager; (iii) real estate broker's
and/or leasing commissions to agents of Landlord or to other
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persons or brokers; (iv) expenditures for capital improvements except as
specifically provided for above in Article 3.1(c) above; provided, however, that
in no event shall Tenant be responsible for contributing to the cost of any
structural, foundation and/or roof repair or replacement; (v) amounts received
by Landlord through proceeds of insurance to the extent the proceeds are
compensation for expenses which were previously included in Additional Rent
hereunder; (vi) cost of repairs incurred by reason of fire or other casualty to
the extent to which Landlord is compensated therefor through proceeds of
insurance or would be compensated by any insurance required to be maintained by
Landlord hereunder, or caused by the exercise of the right of eminent domain
(except for the amount of deductibles); (vii) advertising and promotional
expenditures; (viii) legal fees for disputes with tenants and legal and auditing
fees, other than legal and auditing fees reasonably incurred in connection with
the maintenance and operation of the Building or in connection with the
preparation of statements required pursuant to additional rent or lease
escalation provisions; (ix) costs incurred in performing work or furnishing
services for individual tenants (including this Tenant) at such tenant's expense
or at Landlord's expense; (x) legal fees for the negotiation or enforcement of
any leases, collection costs or bad debt expenses related to other tenants, or
in connection with any debt or equity financing or sale of the Building or
Landlord's Premises; (xi) any costs or expenses legally required to be incurred
by Landlord to bring the Parking Lot and access to the Building into compliance
with the Americans With Disabilities Act of 1990, as amended and regulated as of
the Commencement Date, and cost of compliance with all laws in effect as of the
Commencement Date; (xii) expenses of relocating or moving tenants and of leasing
to and processing new tenants, including lease concessions; (xiii) expenses
resulting from any violations by the Landlord or any tenant of the terms of any
lease in the Building; (xiv) costs of performing any clean-up relating to
environmental conditions or affecting the Building or Landlord's Premises prior
to the Commencement Date or as otherwise provided for herein; (xv) depreciation
or amortization of any improvements or equipment; (xvi) principal or interest
payments on loans secured by mortgages on the Building or on the Landlord's
Premises; (xvii) any costs for services rendered by any person or entity related
to or affiliated with Landlord which is in excess of commercially reasonable
rates for such services; (xviii) penalties, interest and bad debts; (xix) any
obligations under any mortgage, ground lease or other debt affecting the
Landlord's Premises; and (xx) the cost of installation or furnishing any utility
service to other space in the Building not leased to Tenant.
4. Repairs and Maintenance Obligations of Tenant:
4.1 The Tenant has examined the Demised Premises and has entered
into this Lease without any representation on the part of the Landlord as to the
present or future condition thereof, except as may be expressly set forth
herein, and shall accept the Demised Premises in "as is" condition upon
Substantial Completion of the Landlord Improvements.
4.2 The Tenant shall, at all times during the term of this Lease
or any renewals thereof, at its sole expense, put and maintain in thorough
repair and in good and safe condition, and shall make all necessary repairs,
replacements, renewals, alterations, ordinary and extraordinary, to the Demised
Premises and to the equipment, appurtenances, pipes, plumbing systems, HVAC
systems, electrical systems, interior finishes, interior partitions, ceilings,
window glass, fixtures, and all other appliances and appurtenances exclusively
serving the Demised Premises, other than that which constitutes a latent defect
in the Landlord Improvements.
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4.3 All repairs and replacements shall be in quality and class at
least equal to the original work. After an Event of Default (as hereinafter
defined) with respect to making such repairs or replacements, the Landlord may,
but shall not be required to, make such repairs and replacements for the
Tenant's account, and the expense thereof shall constitute and be collectible as
Additional Rent, payable within thirty (30) days of written demand.
4.4 The Tenant shall maintain all portions of the Demised
Premises in a clean and orderly condition, free of dirt, rubbish, and unlawful
obstructions.
4.5 The Landlord shall not be required to furnish any services or
facilities or to make any repair or alteration in or to the Demised Premises,
except as hereinbefore or hereinafter set forth. The Tenant hereby assumes the
full and sole responsibility for the condition, operation, repair, maintenance,
and management of the Demised Premises, subject to Landlord's obligations to
clean up or otherwise respond to any environmental conditions existing as of the
Commencement Date or otherwise not the responsibility of Tenant under Article
10.
4.6 In case any dispute shall arise at any time between the
Landlord and the Tenant as to the standard of care and maintenance of the
Demised Premises, such dispute shall be determined by arbitration before a
licensed architect or real estate broker, mutually agreed upon by Landlord and
Tenant; provided that if the requirement for making repairs or replacements is
imposed by any governmental authority or the holder of any mortgage to which
this Lease is subordinate, then such requirement for repairs or replacements
shall be complied with by the Tenant, provided that Tenant shall also have the
right to dispute or contest the validity, application, or reasonableness of any
governmental requirement and the Landlord shall afford to the Tenant reasonable
cooperation in this connection.
4.7 Anything in this Article 4 to the contrary notwithstanding,
the foregoing provisions shall not apply to any environmental matters, which are
specifically addressed in Article 10 below.
5. Repairs and Maintenance Obligations of Landlord:
5.1 The Landlord shall make all repairs, replacements,
alterations or renewals and perform all maintenance to all structural parts of
the Landlord Improvements at Landlord's expense, which shall include exterior
walls, structural steel, foundations, roof, pipes, plumbing systems, HVAC
systems, electrical systems, interior finishes (if any), interior partitions,
ceiling, window glass, fixtures, appliances, landscaped areas, parking and
loading areas, common areas, sidewalks and curbs, exterior stairs for ingress
and egress, site drainage facilities, dock seals and/or dock shelters and
loading doors which were installed by Landlord as part of the Landlord
Improvements. All other repairs, replacements, alterations or renewals and
maintenance other than to Landlord Improvements, including, without limitations,
snow and ice removal from parking, loading, and sidewalk areas shall be
performed by Landlord as a common expense of all tenants of Landlord's Premises
and Tenant shall pay its proportionate share of such costs. Any repairs to the
foregoing areas resulting from the negligence or wrongful act or omission of
Tenant or its agents, employees, contractors, subtenants and/or invitees shall
be at the sole cost of the Tenant and shall be Additional Rent unless such is
reimbursable by insurance
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coverage required hereunder. At Landlord's option, routine maintenance to be
paid as a common expense of all tenants of Landlord's Premises, and contributed
to by Tenant as Additional Rent, may include, without limitation, all items
noted in Schedule "E" annexed hereto and made a part hereof.
5.2 Landlord shall not be in default under this lease for any
failure to make such repairs or to perform any maintenance unless Landlord shall
fail to cure said default within thirty (30) days after notice of said default
by Tenant, or in the case of a default not susceptible of a cure within thirty
(30) days, if Landlord shall fail to commence a cure within thirty (30) days and
diligently complete such cure within a reasonable time. Notwithstanding the
foregoing, if Tenant's personnel cannot reasonably perform their functions in
the Demised Premises as a result of Landlord's default which materially and
adversely impairs the use of the Demised Premises (such being a "Shut-Down
Condition"), Tenant may serve written notice upon the Landlord of such Shut-Down
Condition. Landlord shall have one (1) business day to commence necessary
repairs and to diligently prosecute such repairs to a conclusion. If Landlord
defaults in its obligation, Tenant shall have the self-help rights afforded
under Section 13.1. Further, in the event a Shut-Down Condition persists for
more than thirty (30) days, Fixed Rent and Additional Rent shall xxxxx until the
Shut-Down Condition has been remedied so as to permit Tenant's personnel to
reasonably perform their functions in the Demised Premises.
5.3 Tenant shall promptly report in writing to Landlord any
defective condition known to Tenant which Landlord is required to repair.
5.4 The Landlord agrees that the Demised Premises shall be
delivered to the Tenant in clean and first class condition and with all of the
Landlord Improvements listed on Schedule "B" substantially completed by no later
than the "Substantial Completion Date" (as hereinafter defined). After the
Substantial Completion Date, Landlord shall within a reasonable time finish any
punch list items regarding Landlord's Improvements which remain outstanding, and
if Landlord fails to do so, then Tenant shall have the right to complete such
items and may resolve such dispute pursuant to the arbitration process described
in Section 4.6 above.
5.5 Notwithstanding the above, Landlord will be responsible for
all costs incurred to remedy defects in the original design and construction of
the Landlord Improvements, including any repair, restoration, capital
improvements or maintenance to Landlord Improvements (but not to Tenant
Improvements) due to defects in design or construction of the Landlord
Improvements, cleanup of or other response to environmental conditions existing
at the Commencement Date and which are not caused by Tenant, and such shall NOT
constitute Additional Rent hereunder.
6. Utilities and Personal Property Taxes:
6.1 Tenant shall pay for all water, gas, heat, light, power,
sewer charges, telephone service, fire alarm monitoring and all other services
and utilities supplied to the Demised Premises (including, without limitation,
exterior lighting provided for the exclusive use of the Demised Premises),
together with any taxes thereon.
6.2 In the event the Demised Premises are connected to public
utilities by means of lines passing through the Landlord's property outside the
Demised Premises, it shall
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be the Landlord's responsibility to maintain said lines as a common expense of
all tenants of Landlord's Premises provided however that Landlord's
responsibility shall not extend further than to repair any breaks or
obstructions in said lines with reasonable dispatch after being advised of same,
and to refrain from any negligent or willful action to cause any such break or
obstruction. Tenant's repair responsibility in respect to any such lines shall
be limited to their entry into the Demised Premises. In no event shall Landlord
be responsible for any interruption of service of any utility to the Landlord's
Premises occurring by reason of any act or condition unless caused by the gross
negligence or willful misconduct of Landlord.
6.3 Tenant shall pay, or cause to be paid, before delinquency,
any and all taxes levied or assessed and which become payable during the term
hereof upon all Tenant's leasehold improvements, equipment, furniture, fixtures,
and any other personal property belonging to Tenant and located on the Demised
Premises. In the event any or all of the Tenant's leasehold improvements,
equipment, furniture, fixtures and other personal property shall be assessed and
taxed with the real property, Tenant shall pay to Landlord such taxes applicable
to Tenant's property within thirty (30) days after delivery to Tenant by
Landlord of a statement in writing setting forth the amount of such taxes
applicable to Tenant's property.
6.4 Notwithstanding the foregoing in this Article 6, Tenant shall
have the right to utilize services of an alternative utility service provider
("ASP") (including a provider of telecommunication services) rather than the
primary utility providers servicing the Building as of the date of Tenant's
execution of this Amendment. Tenant acknowledges and agrees that all utility
services desired by Tenant pursuant to this paragraph shall be ordered and
utilized at the sole expense of Tenant. Tenant agrees that to the extent service
by ASP is interrupted, curtailed, or discontinued for whatever reason, Landlord
shall have no obligation or liability with respect thereto.
7. Glass, Damage by Tenant:
7.1 In case of the destruction of or any damage to the glass in
the Demised Premises, or the destruction of or damage of any kind whatsoever to
the Demised Premises, the Tenant shall repair the said damage or replace or
restore any destroyed parts of the Demised Premises, as speedily as possible, at
the Tenant's own cost and expense. Notwithstanding the foregoing, if any such
damage is covered by insurance maintained under Sections 11.3 and 11.4 below,
then Landlord hereby agrees to file and pursue in good faith a claim with the
insurance company with respect to such damage and reimburse Tenant with respect
to the proceeds arising from such claim. Notwithstanding the foregoing, Tenant
shall have no such repair requirement to the extent such damage or destruction
is reimbursable under the insurance required in Section 11.3 below and the
provisions of this Section 7.1 shall be subject to the waiver of subrogation
provision in Section 11.9 below.
8. Use of Premises:
8.1 The Demised Premises shall be used and occupied only for all
uses in connection with Tenant's disaster recovery operation and related
business, including disaster recovery services, data storage, continuity
services, employee educational programs, general office purposes, conference
rooms, employee training facilities, computer facilities, remote computer
testing facilities, employee kitchens and other legally permitted uses
consistent with
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the characteristics of similar first-class facilities (the "Permitted Use"), and
may not be used for any other business or enterprise or in any manner other than
as authorized by this Article 8 without Landlord's prior written consent.
Landlord's consent to any other lawful use which complies with the provisions of
this Article 8 of this Lease shall not be unreasonably withheld or delayed or
conditioned; provided, however, that Tenant's sole remedy with respect to any
assertion that Landlord's failure to timely consent to a change of use was
unreasonable shall be to seek equitable relief (including, without limitation,
specific performance and/or injunctive relief), and Tenant shall have no damage
claim against Landlord as a result of Landlord's actions in refusing to consent
on a timely basis thereto (except as provided in Section 51.1 below).
8.2 Tenant shall not use, or suffer or permit the use of the
Demised Premises or any part thereof: (A) which would violate any certificate of
occupancy for the Demised Premises, or any of the covenants, agreements, terms,
provisions and conditions of this Lease, or for any unlawful purposes or in any
unlawful manner, and (B) to be used in any manner, or anything to be done
therein, or suffer or permit anything to be brought into or kept in the Demised
Premises which shall in any way materially and adversely impair or interfere
with the proper and economic heating, cleaning, air conditioning or other
servicing of the Demised Premises, or materially and adversely impair or
interfere with the use of any of the other areas of the Landlord's Premises.
8.3 If any governmental license or permit, including, without
limitation, a certificate of occupancy shall be required for the proper and
lawful conduct of Tenant's business or other activity carried on in the Demised
Premises, Tenant, at Tenant's expense, shall duly procure and thereafter
maintain such license. Tenant shall provide a copy thereof to Landlord. Tenant,
at Tenant's expense, shall, at all times, comply with the terms and conditions
of each such license or permit.
8.4 Tenant shall not do, nor permit to be done, anything outside
of the Permitted Use which will cause a cancellation or non-renewal of any
insurance policy covering said Demised Premises, or otherwise render the Demised
Premises uninsurable.
8.5 Tenant shall not: (A) use or allow the Demised Premises to be
used for any unlawful purpose, and (B) cause, maintain or permit any nuisance
in, on or about the Demised Premises.
8.6 Tenant shall not commit or allow to be committed any waste in
or upon the Demised Premises.
8.7 Tenant shall: (a) not use the Demised Premises or permit
anything to be done in or about the Demised Premises, which will materially
conflict with any applicable law, statute, ordinance or governmental rule or
regulation now in force or which may hereafter be enacted or promulgated; and
(b) at its sole cost and expense, promptly comply in all material respects with
all applicable laws, statutes, ordinances and regulations now in force or which
may hereafter be in force and with the requirements of any board of fire
underwriters or other similar bodies now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Demised Premises. The final,
unappealable judgment of any court of competent jurisdiction that Tenant has (or
has not) violated any law, statute, ordinance or regulation, or amendment
thereto, or judicial decision, shall be conclusive of that fact as between the
Landlord and Tenant.
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8.8 Tenant's Standard Industry Classification Number is 7379
[Computer Related Services]. The Tenant shall not use or permit the Demised
Premises to be used as an Industrial Establishment as defined as of the date of
this Lease by the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq.,
without Landlord's prior written consent. No bio-hazardous items shall be
stored, used, generated or disposed of at the Demised Premises other than in
compliance with applicable laws.
9. Alterations and Improvements:
9.1 Landlord understands that Tenant will be making substantial
improvements to the interior of the Demised Premises including, but not limited
to, partitions, dropped ceilings, conduit, raised flooring, electrical systems,
fire sprinkler systems, heating, ventilating and air-conditioning systems, and
other improvements necessary or desirable to prepare the Demised Premises for
Tenant's initial occupancy thereof (the "Initial Tenant Improvements"). The
Initial Tenant Improvements shall consist of all improvements made to the
Demised Premises up to and including the date on which Tenant obtains its final
Certificate of Occupancy for the Demised Premises. The Initial Tenant
Improvements and all other improvements constructed or installed by Tenant
throughout the Lease Term shall be collectively referred to as the "Tenant
Improvements." As of the Termination Date or such earlier date as Tenant's right
of possession is terminated under this Lease, the Tenant shall at its sole cost
and expense remove all Tenant Improvements (except as otherwise provided herein)
and shall restore the Landlord's Premises to the condition it was in prior to
the installation of the Tenant Improvements, subject to ordinary wear and tear
due to passage of time and normal use, and damage by casualty. If Landlord, at
the time Landlord consents to additions, improvements, alterations or
installations, advises Tenant that such removal will not be required, then such
Tenant Improvements to the Demised Premises, except Tenant's movable fixtures
and furniture, shall become the property of Landlord and shall remain upon, and
be surrendered with, said Demised Premises, as a part thereof, at the end of
said term or renewal term, as the case may be. Notwithstanding the foregoing,
the parties agree that the Initial Tenant Improvements consisting of (A) the
second floor mezzanine of approximately 17,874 square feet, (B) the conduits and
the wiring therein from the public right of way to the Demised Premises, and (C)
the conduits and wiring therein running from the Building to the building
located at 000 Xxxxxxx Xxxxxxxxx, shall not be removed at the Termination Date
and shall become the sole property of the Landlord from and after the
Termination Date.
9.2 Tenant may not make structural alterations, additions or
improvements to the Demised Premises ("Structural Alterations") without the
consent of the Landlord, which consent shall not be unreasonably withheld,
conditioned or delayed. Landlord will review and consent or object in writing to
Tenant's submission of Tenant's plans for structural alterations within ten (10)
days of receipt thereof. Landlord's failure to respond within ten (10) days
shall operate as a refusal of consent. Landlord's consent shall not be required
for nonstructural alterations, additions or improvements to the Demised Premises
("Nonstructural Alterations"); however, Tenant may at its option submit to
Landlord Tenant's plans and specifications for Nonstructural Alterations in
order to determine whether Landlord upon termination of this Lease will require
Tenant to remove such Nonstructural Alterations. Tenant's Structural Alterations
and Nonstructural Alterations are sometimes hereinafter referred to as
"Alterations". In the event Landlord does not consent to the Tenant's plans for
Structural
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Alterations, Landlord shall specifically inform Tenant of the reason for denial
of such consent. Any work undertaken by Tenant shall be performed in compliance
with all applicable codes and standards including, but not limited to, the New
Jersey Uniform Construction Code.
9.3 Landlord and Tenant have approved the Landlord
Specifications. Any material changes made to the Landlord Specifications by
Landlord shall be subject to the approval of Tenant, which approval shall not be
unreasonably withheld or delayed. Landlord covenants that all warranties
contained in the construction contracts entered into by Landlord in connection
with the Landlord Improvements in the Demised Premises shall be assigned to
Tenant not later than the Commencement Date, or if not, will be enforced by
Landlord at Tenant's request.
9.4 Tenant, at Tenant's sole cost and expense, shall prepare all
necessary plans and specifications for the design and construction of the
Initial Tenant Improvements. The Initial Tenant Improvements shall be built and
completed with reasonable diligence substantially in accordance with Tenant's
plans and specifications (the "Tenant Plans"). The Tenant Plans shall be subject
to review and approval by Landlord, which approval Landlord shall not
unreasonably delay or withhold or condition, and which shall be deemed approved
if Landlord has not responded to Tenant within ten (10) days after submission
thereof by Tenant to Landlord. Any material changes by Tenant to the Tenant
Plans, once approved by Landlord, shall likewise be subject to review and
approval by Landlord, which approval Landlord shall not unreasonably delay or
withhold or condition, and which shall be deemed approved if Landlord has not
responded to Tenant within ten (10) days after submission thereof by Tenant to
Landlord. Tenant shall cause the construction and installation of the Initial
Tenant Improvements to be in compliance with the approved Tenant Plans.
9.5 Landlord shall proceed, with due diligence and in a continual
manner, to cause the Landlord Improvements (as defined in Schedule "B",
"Landlord Specifications, " attached hereto and made a part hereof) to be
constructed in a good and workmanlike manner, in compliance with all applicable
laws, ordinance and regulations, and to be "Substantially Completed" prior to
the Substantial Completion Date (as hereinafter defined). The "Substantial
Completion Date" of the Landlord Improvements shall be no later than October 6,
2002, subject to a Force Majeure Event (as hereinafter defined) and extensions
due to delays caused by the Tenant from and after the date hereof. Landlord
shall notify Tenant of the Substantial Completion Date, which shall be the date
when the Landlord has so completed the Landlord Improvements that Tenant is
permitted to enter the Landlord's Premises to commence construction of the
Initial Tenant Improvements, with appropriate means of ingress and egress to the
site, in a manner that shall not materially impair Tenant's ability to
diligently construct the Initial Tenant Improvements. From and after the
Substantial Completion Date, Landlord shall permit Tenant reasonable access to
the Building for the construction of the Initial Tenant Improvements. Such
access shall be at Tenant's own risk, shall not interfere or delay completion of
the Landlord Improvements by Landlord, and shall be only after Tenant has
obtained and delivered the insurance required under this Lease. Landlord and
Tenant agree to cooperate during the construction of the Landlord Improvements
and the Initial Tenant Improvements, to coordinate the scheduling of such work
and to keep each other informed as to their respective progress. Not less than
five (5) business days prior to the Substantial Completion Date, Landlord shall
furnish Tenant with a detailed punch list of items, which, in Landlord's
judgment, will not be completed by the Substantial Completion Date (i.e.,
paving, curbs, landscaping, etc.)
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("Landlord's Punch List"), and which will NOT materially or adversely interfere
with the Tenant's construction of the Initial Tenant Improvements by reason of
the non-completion of such Landlord Improvements. Tenant shall have the right to
supplement such punch list of items for a period of sixty (60) days after the
Substantial Completion Date ("Tenant's Punch List"). Following the Substantial
Completion Date, Landlord shall use all reasonable efforts to complete
Landlord's Punch List and Tenant's Punch List in a timely manner but in all
events not later than ninety (90) days after the Substantial Completion Date,
subject to any long lead items that may appear on Tenant's Punch List.
Subject to any delays caused by the Tenant after the
effective date of this Lease, if: (A) the Substantial Completion Date does not
occur by November 5, 2002, or if the aggregate Punch List items are not
Substantially Completed within ninety (90) days thereafter (i.e., on or before
February 3, 2003), irrespective of any Force Majeure Event, then Fixed Rent and
Additional Rent due, if any, from and after the Rent Commencement Date shall be
abated on a one (1) day for each full or partial day of delay basis; and (B)
subject to any Force Majeure Event, the Substantial Completion Date does not
occur by December 22, 2002, or if the aggregate Punch List items are not
Substantially Completed by within ninety (90) days thereafter (i.e., on or
before March 22, 2003), then Fixed Rent and Additional Rent from and after the
Rent Commencement Date shall be abated in an amount equal to two times Fixed
Rent plus the Additional Rent on a one (1) day for each full or partial day of
delay basis.
9.6 At all times prior to the Substantial Completion Date,
Tenant, at its option, upon reasonable prior notice, shall have the right to
enter upon the Demised Premises to inspect the Building and the Landlord
Improvements, for the purpose of determining that the construction of the
Landlord Improvements is proceeding in substantial accordance with the Landlord
Specifications, provided that such inspections shall not unreasonably interfere
with or cause any delay of the activities of Landlord.
9.7 At all times prior to the completion of construction and
installation of the Initial Tenant Improvements, Landlord, at its option, upon
reasonable prior notice, shall have the right to enter upon the Demised Premises
to inspect the Building and the Initial Tenant Improvements, for the purpose of
determining that the construction of the Initial Tenant Improvements is
proceeding in substantial accordance with the Tenant Plans and the terms of this
Lease, provided that such inspections shall not unreasonably interfere with or
cause any delay of the activities of Tenant or its agents or contractors in or
on the Demised Premises.
9.8 In addition to the other provisions set forth in this
Xxxxxxxxx 0, Xxxxxxxx and Tenant agree that: (i) each shall require all
contractors retained by it to indemnify and hold harmless Landlord and Tenant to
the maximum extent permitted by law, to comply with all safety rules and
regulations including, but not limited to OSHA regulations, and take all safety
measures reasonably required to protect Landlord and Tenant and their respective
agents, contractors and employees from injury or damage caused by or resulting
from the performance of the construction of the Landlord Improvements and/or the
Initial Tenant Improvements; (ii) all construction contracts in connection with
the Landlord Improvements and/or the Initial Tenant Improvements shall contain
provisions that obligate the contractors to: (a) carry public liability and
property damage insurance with a combined single limit of not less than
$5,000,000.00; and (b) carry workmen's compensation insurance in compliance with
New Jersey law.
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9.9 The review and approval (when applicable) by Tenant of the
Landlord Specifications is solely for the benefit of Tenant, and, in reviewing
and approving the same, Tenant assumes no liability for the design of the
Landlord Improvements or the adequacy thereof, nor shall such review or approval
by Tenant release Landlord from any obligation or liability in respect thereof.
9.10 The review and approval by Landlord of the plans and
specifications for the Tenant Improvements is solely for the benefit of
Landlord, and, in reviewing and approving the same, Landlord assumes no
liability for the design of the Tenant Improvements or the adequacy thereof, nor
shall such review or approval by Landlord release Tenant from any obligation or
liability in respect thereof.
9.11 Upon Tenant's request, from time to time and in any event
upon Substantial Completion of the Landlord Improvements, Landlord shall
promptly submit to Tenant the current copies of any and all plans,
specifications and/or working drawings relative to the Landlord Improvements
which have not been previously submitted to Tenant pursuant to other provisions
of this Lease. Upon Landlord's request, from time to time and in any event upon
final completion of the Initial Tenant Improvements, Tenant shall promptly
submit to Landlord then current copies of any and all plans, specifications
and/or working drawings relative to the Tenant Improvements which have not been
previously submitted to Landlord pursuant to other provisions of this Lease.
Landlord will not impose any fee for review or approval of the plans for the
Tenant Improvements. Landlord will not impose any fees for construction,
supervision, or plan review unless Landlord is acting as the general contractor.
9.12 Neither party shall, at any time prior to or during the
Term, directly or indirectly employ or permit the employment of, any contractor,
mechanic or laborer in the Demised Premises if such employment would interfere
or cause any conflict with other contractors, mechanics or laborers engaged in
the construction, maintenance or operation of the Demised Premises. In the event
of such interference or conflict, each party, upon demand of the other, shall
cause all contractors, mechanics or laborers causing such interference or
conflict to leave the Demised Premises immediately.
9.13 Tenant shall, in connection with the construction and
installation of the Initial Tenant Improvements, comply with all applicable
laws, ordinances, rules and regulations and shall, with Landlord's assistance as
may be required, obtain all permits and approvals required or necessary
thereunder in order for Tenant to perform the Initial Tenant Improvements.
Landlord shall, in connection with the construction and installation of the
Landlord Improvements, comply with all applicable laws, ordinances, rules and
regulations and shall obtain all permits and approvals required or necessary
thereunder in order for Landlord to perform the Landlord Improvements.
9.14 If, because of any acts or omission of Tenant or anyone
claiming through or under Tenant, any mechanic's or materialmen's notice of
intention or mechanic's or materialmen's or other lien or order for the payment
of money shall be filed against the Demised Premises, the Landlord's Premises,
or against Landlord (whether or not such lien or order is valid or enforceable
as such), Tenant shall, at Tenant's own cost and expense, cause the same to be
canceled and discharged of record or bonded off within forty-five (45) days
after the date of filing thereof, and shall also indemnify and save harmless
Landlord from and against any and all
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costs, expenses, claims, losses or damages, including reasonable counsel fees,
resulting therefrom or by reason thereof. If, because of any acts or omission of
Landlord or anyone claiming through or under Landlord, any mechanic's or
materialmen's notice of intention or mechanic's or materialmen's or other lien
or order for the payment of money shall be filed against the Demised Premises,
the Landlord's Premises, or against Tenant (whether or not such lien or order is
valid or enforceable as such), Landlord shall, at Landlord's own cost and
expense, cause the same to be canceled and discharged of record or bonded off
within forty-five (45) days after the date of filing thereof, and shall also
indemnify and save harmless Tenant from and against any and all costs, expenses,
claims, losses or damages, including reasonable counsel fees, resulting
therefrom or by reason thereof.
10. Laws and Ordinances:
10.1 The Tenant shall promptly execute and materially comply with
the statutes, ordinances, rules, orders, regulations and requirements of the
Federal, State and Municipal governments and of any and all their departments
and bureaus applicable to the Demised Premises for the correction, prevention
and abatement of nuisances, violations or other grievances in, upon or connected
with said Demised Premises during said term, arising from, incident to, or
connected with the use and occupation of the Demised Premises by the Tenant. The
Tenant shall also promptly materially comply with and execute all rules, orders
and regulations of the Board of Fire Underwriters for the prevention of fires,
at its own cost and expense, arising from, incident to or connected with the use
and occupation of said premises by the Tenant.
10.2 The Landlord shall promptly execute and materially comply
with the statutes, ordinances, rules, orders, regulations and requirements of
the Federal, State and Municipal governments and of any and all their
departments and bureaus applicable to the Landlord's Premises (exclusive of the
Demised Premises after the Commencement Date), for the correction, prevention
and abatement of nuisances, violations or other grievances in, upon or connected
with said Landlord's Premises (exclusive of the Demised Premises after the
Commencement Date), during said term. The Landlord shall also promptly comply
with and execute all rules, orders and regulations of the Board of Fire
Underwriters for the prevention of fires, at its own cost and expense, arising
from, incident to or connected with the use and occupation of Landlord's
Premises (exclusive of the Demised Premises).
10.3 Tenant shall, at Tenant's own expense, materially comply
with the Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq. and with the
Spill Compensation and Control Act (N.J.S.A. 58:10-23-11 et seq.) ("the Acts")
and all regulations promulgated pursuant to the Acts, but solely to the extent
that the requirements of the Acts become applicable to the Demised Premises as a
result of Tenant's acts or omissions thereat from and after the Commencement
Date. Tenant shall, at Tenant's own expense, provide all information within
Tenant's control requested by Landlord or the Bureau of Industrial Site
Evaluation for the preparation of submissions, declarations, reports and plans
pursuant to the Acts. If the New Jersey Department of Environmental Protection
(DEP) shall determine that a clean-up plan or Remedial Action Work plan must be
prepared and that a clean-up must be undertaken because of any spills or
discharges of hazardous substances or wastes caused by Tenant or other parties
under Tenant's authority or control at the Demised Premises which occur during
any period when Tenant is or was an occupant, then Tenant's obligations under
the preceding sentence shall apply
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solely to the extent necessary to address the spills or discharges caused by
Tenant or other parties under Tenant's control and shall not extend to any
spills or discharges caused by others and Tenant shall, at Tenant's own expense,
prepare and submit the required plans and carry out the approved plans. Tenant
shall indemnify, defend and save the Landlord harmless from all fines, suits,
procedures, claims and actions of any kind from third parties arising out of or
in any way connected with any spills or discharges of hazardous substances or
wastes to the extent caused by the Tenant or other parties under Tenant's
authority or control at the Landlord's Premises which occur during the term of
Tenant's occupancy. Tenant reserves the right to contest the applicability of
the Acts to Tenant or any DEP determinations or requirements.
10.4 Landlord shall, at Landlord's own expense, materially comply
with the Acts and all regulations promulgated pursuant to the Acts to the extent
that the requirements of the Acts become applicable to the Landlord's Premises
with respect to existing conditions prior to the Commencement Date or otherwise
resulting from Landlord's acts or omissions from and after the Commencement Date
thereat. Landlord shall, at Landlord's own expense, provide all information
within Landlord's control requested by Tenant or the Bureau of Industrial Site
Evaluation for the preparation of submissions, declarations, reports and plans
pursuant to the Acts. If the New Jersey Department of Environmental Protection
(DEP) shall determine that a clean-up plan or Remedial Action Work plan be
prepared and that a clean-up be undertaken because of any spills or discharges
of hazardous substances or wastes caused by the Landlord or other parties under
Landlord's authority or control at the Landlord's Premises which occur during
any period when Tenant was an occupant, then Landlord shall, at Landlord's own
expense, prepare and submit the required plans and carry out the approved plans.
Landlord shall indemnify, defend and save the Tenant harmless from all fines,
suits, procedures, claims and actions of any kind arising out of or in any way
connected with any spills or discharges of hazardous substances or wastes solely
to the extent such spill or discharge existed prior to the Commencement Date
and/or were caused by the Landlord or other parties under Landlord's authority
or control at the Landlord's Premises which occur during the term of Tenant's
occupancy. Landlord reserves the right to contest the applicability of the Acts
to Landlord or any DEP determinations or requirements.
10.5 The provisions of this Article 10 shall survive the
termination or earlier expiration of this Lease.
11. Insurance:
11.1 During the construction of the Landlord Improvements and the
Tenant Improvements (the "Construction Phase"), in addition to the insurance
coverage required to be maintained under Article 9.9 above, Landlord shall
maintain builder's risk insurance for the full replacement cost of the Landlord
Improvements at Landlord's sole cost and expense and not as Additional Rent, and
Tenant shall maintain builder's risk insurance for the full replacement cost of
the Tenant Improvements at Tenant's sole cost and expense.
11.2 At all times from and after the Commencement Date, and
during the full term, the Tenant shall maintain, at its sole cost and expense,
general public liability insurance against claims for personal injury, death or
property damage, under a policy of commercial general public liability
insurance, with such limits as may reasonably be requested by the Landlord from
time to time, but not less than Five Million ($5,000,000.00) Dollars
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Combined Single Limit ("CSL") in respect of bodily injury and property damage. A
combination of General Liability Coverage and Umbrella Liability Coverage is
acceptable to comply with this limit.
11.3 At all times subsequent to the Construction Phase of the
Demised Premises and during the full Lease Term, the Landlord as a common
expense of all tenants of Landlord's Premises, shall carry for the benefit of
Landlord and Tenant, property insurance, business interruption insurance for
loss of rents, and flood insurance in an amount equal to the full replacement
value of the Building, including the replacement value of the Tenant
Improvements, and not less than the requirements of any mortgagee holding a
mortgage on the Premises. Tenant shall pay its proportionate share of the cost
of said insurance covering the Landlord's Premises and Improvements excluding
the Tenant Improvements and shall pay one hundred (100%) percent of the cost of
the insurance covering the Tenant Improvements, payable in advance at the
commencement of the insurance policy year. Allocation of the cost for Tenant
Improvements shall be based upon their replacement value as shall be accurately
and reasonably stated by Tenant. Landlord, its Mortgagee and Tenant shall be
named as insureds thereunder, as their respective interests may appear, and the
Landlord and its mortgagee shall be named loss payee, as their respective
interests may appear. Tenant may elect to carry for the benefit of Landlord, its
Mortgagee and Tenant any of the insurance coverages described in this paragraph
applicable to the Demised Premises, or to the Tenant's rental, or to fixtures,
furnishings, equipment, improvements and other property owned by the Tenant and
located at or in or affixed to Landlord's Premises at its own cost and expense.
Tenant shall provide Landlord with at least thirty (30) days' advanced written
notice of its request to carry its own insurance to afford time for Landlord to
cancel duplicative coverages so as to assure no lapse or gaps in such coverages.
The Landlord and its mortgagee shall be named loss payee under any such policy,
as their respective interests may appear, and all coverages shall comply with
the requirements of Landlord's mortgagee.
11.4 The Landlord shall carry general public liability insurance,
in addition to Tenant's general public liability insurance requirement as
outlined in Article 11.1, naming Landlord as the insured and Tenant as
additional insured. Tenant shall pay its proportionate share of the cost of said
insurance, in advance, at the commencement of the insurance policy year. If
Tenant finds that the deductibles under such policies are not at commercially
reasonable levels, Tenant may notify the Landlord, and if the parties are unable
to agree on a reasonable deductible, then subject to requirements of Landlord's
Mortgagee, the issue will be resolved by arbitration before a qualified
insurance professional mutually selected by the parties.
11.5 All insurance required to be maintained by the Tenant shall
be effected by valid and enforceable policies issued by insurers with a Bests
Rating of A-IX or better, which are authorized to do business in New Jersey. The
Tenant may carry the insurance referred to in this Lease under any blanket
policy of insurance or policies issued by its present or future insurance
carriers. If the Tenant elects to provide insurance as herein set forth under
any blanket policy or blanket coverage, the Landlord will be provided with
evidence of such insurance in the form of a certificate of insurance or any
other evidence of insurability from any
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insurance carrier and said certificate or certificates will provide that the
Landlord will receive thirty (30) days notice prior to cancellation in the
coverage. If the Tenant elects to provide insurance as herein set forth under
one or more individual policies of insurance, then either certificates of
insurance or duplicate originals of such policies will be delivered to Landlord
and same will provide that the Landlord will receive thirty (30) days' notice
prior to cancellation in coverage. Proof of insurance coverage and payment for
same (including the Certificates or duplicate original policies) shall be
delivered to Landlord at the Commencement Date and as to renewal policies shall
be delivered to Landlord not less than fifteen (15) days prior to the effective
date of the renewal coverage. All such policies shall be primary and
non-contributing with any other insurance carried by Landlord.
All insurance required to be maintained by the Landlord shall be
effected by valid and enforceable policies issued by insurers with a Bests
Rating of A-IX or better, which are authorized to do business in New Jersey. The
Landlord may carry the insurance referred to in this Lease under any blanket
policy of insurance or policies issued by its present or future insurance
carriers. If the Landlord elects to provide insurance as herein set forth under
any blanket policy or blanket coverage, the Tenant will be provided with
evidence of such insurance in the form of a certificate of insurance or any
other evidence of insurability from any insurance carrier and said certificate
or certificates will provide that the Tenant will receive thirty (30) days
notice prior to cancellation in the coverage. All such policies shall be primary
and non-contributing with any other insurance carried by Tenant.
11.6 All policies of insurance required to be maintained
hereunder (whether by Landlord or Tenant) shall name the Tenant and the Landlord
as the insured as their respective interests may appear. All such policies shall
contain an agreement by the insurers that such policies shall not be canceled
without at least thirty (30) days prior written notice to the Landlord.
11.7 Upon the default of the Tenant in effecting any such
insurance, or procuring or delivering the policies therefor as directed by the
Landlord, or in paying the premiums therefor and any and all charges incidental
thereto when the same become payable, or in procuring and delivering to the
Landlord renewals of expired policies at least fifteen (15) days before such
expiration, the Landlord may, upon not less than ten (10) days prior written
notice to Tenant, procure any such insurance or insurances and/or pay the
premiums and other charges incidental thereto, and any and all amounts so paid
by the Landlord, together with interest thereon from the date of such payment at
lesser of twelve percent (12%) per annum or the highest rate permitted by law,
shall be Additional Rent hereunder and, at the Landlord's option, may be added
to the rent then due or thereafter to become due and the Landlord shall have the
rights and remedies, including summary proceedings, with respect to the same as
with respect to rent.
11.8 In the event Tenant's use and occupancy of the Demised
Premises causes any additional charge or increase in the insurance premiums on
the Land or Building, in excess of those rates which would normally be imposed
for insuring a non-combustible building of similar construction, Tenant shall,
from time to time, immediately upon receipt of notice from
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Landlord, do whatever is reasonably deemed necessary, and follow whatever
reasonable recommendations may be made by the Landlord, in order that such
excess charge or increase in insurance premiums may be removed, or the lowered
rate obtained; or, in the event conditions are such that nothing can be done in
Tenant's discretion by way of improvements or otherwise to remove such increased
insurance premiums, or if the expense involved is excessive, then Tenant shall
pay the full amount of such additional charges or increases in premium on demand
as Additional Rent.
11.9 Anything in this Article 11 or in this Lease to the contrary
notwithstanding, each of Landlord and Tenant hereby waives any and all rights of
recovery against the other, and against the officers, employees, agents,
representatives, customers and business visitors of such other party and of each
such other tenant or occupant of Landlord's Premises, for loss of or damage to
such waiving party or its property or the property of others under its control,
arising from any cause insured against under any policy of insurance required to
be carried by such waiving party pursuant to the provisions of this Lease (or
any other policy of insurance carried by such waiving party in lieu thereof) at
the time of such loss or damage. The foregoing waiver shall be effective whether
or not the waiving party actually obtains and maintains the insurance which such
waiving party is required to obtain and maintain pursuant to this Lease (or any
substitute therefor). Landlord and Tenant shall, upon obtaining the policies of
insurance which they are required to maintain hereunder, give notice to their
respective insurance carrier or carriers that the foregoing mutual waiver of
subrogation is contained in this Lease. In addition, Tenant and Landlord shall
obtain waivers of subrogation for the benefit of one another, from any company
issuing any policy of insurance obtained by either of them pursuant to the terms
of this Lease. Landlord shall not be liable for injury, loss, expense, claim or
damage to the person, property, or interests of Tenant covered by insurance,
irrespective of whether any such damage is occasioned by the negligence or
willful misconduct of Landlord, its servants, agents or employees. Similarly,
Tenant shall not be liable for injury, loss, expense, claim or damage to the
person, property, or interests of Landlord covered by insurance, irrespective of
whether any such damage is occasioned by the negligence or willful misconduct of
Tenant, its servants, agents or employees.
12. Landlord's Liability:
12.1 Except as otherwise provided in this Lease, Landlord shall
not be liable for any personal injury to any person, including the Tenant or to
its officers, agents, employees, contractors or invitees or for any damage to
any property of any person, including the Tenant, whether from action of the
elements, or acts of negligence of or occupants of adjacent properties, except
if caused by or resulting from the Landlord's willful malfeasance or negligent
acts.
12.2 The term "Landlord" as used in this Lease shall be limited
to mean and include only the owner or owners at the time in question of the
Landlord's Premises and in the event of any transfer or transfers of the title
to the Landlord's Premises, the then grantor shall be automatically freed and
relieved from and after the date of such conveyance or transfer of all liability
for the performance of any covenants or obligations on the part of Landlord
contained in
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this Lease to be performed, provided that any funds then in the hands of such
grantor, in which Tenant has an interest, shall be delivered to the grantee and
that such grantee assumes all obligations of grantor as the "Landlord"
hereunder, including, without limitation, any liability for the performance of
any covenants or obligations on the part of Landlord contained in this Lease for
the period prior to any such transfer of title.
12.3 Tenant agrees that it shall look solely to Landlord's
interest in the Landlord's Premises (including all of Landlord's rights to
insurance and condemnation proceeds and all Rent and income from Landlord's
Premises) and not to Landlord for the collection of any judgment (or other
judicial process) against the Landlord or any predecessor Landlord in the event
of any default or breach by Landlord with respect to any of the terms, covenants
and conditions of this Lease to be observed and/or performed by Landlord, and no
other assets of Landlord or any predecessor Landlord shall be subject to levy,
execution or other procedures for the satisfaction of Tenant's remedies. Tenant
irrevocably waives and releases Landlord from any claims in excess of such
interest in the Landlord's Premises.
13. Default of Landlord:
13.1 Landlord shall not be in default unless Landlord fails to
perform obligations required of Landlord within a reasonable time, but in no
event later than thirty (30) days after written notice by Tenant to Landlord
specifying wherein Landlord has failed to perform such obligation; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty (30) days are required for performance, then Landlord shall not be in
default if Landlord commences performance within such 30-day period and
thereafter diligently prosecutes the same to completion. Except as otherwise
specifically provided for herein, in no event shall Tenant have the right to
terminate this Lease as a result of Landlord's default, and Tenant's remedies
shall be limited to damages and/or an injunction. Notwithstanding the foregoing,
in emergency circumstances where the failure to repair or replace would result
in a Shut-Down Condition (defined at Section 5.2) and it is impracticable to
give Notice to the Landlord and permit Landlord to carry out the repair pursuant
to Section 5.2, then Tenant shall have the right to perform Landlord's
obligations and be reimbursed for the reasonable cost thereof, if applicable, as
a common expense or, otherwise at Landlord's sole expense, so long as Tenant
provides Landlord with notice thereof promptly after performing such
obligations.
14. Event of Default by Tenant:
14.1 The following shall constitute an "Event of Default" by the
Tenant hereunder:
(a) If Tenant shall be late in the payment of any
installment of Fixed Rent and if such breach shall continue for ten (10) days;
provided that once in each twelve (12) month period Landlord shall provide a
written notice of late payment to Tenant and a ten (10) day period to cure the
nonpayment before declaring an Event of Default or assessing a late charge under
Section 2.4.
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(b) If Tenant shall be late in the payment of any
Supplemental or Additional Rent, and if such breach shall continue for thirty
(30) days after Landlord shall have sent Tenant a written invoice for the amount
due.
(c) If, during the term of this Lease: (i) Tenant shall make
an assignment for the benefit of creditors, or (ii) a voluntary petition be
filed by Tenant under any law having for its purpose the adjudication of Tenant
a bankrupt, or the extension of time for payment, composition, adjustment,
modification, settlement or satisfaction of the liabilities of Tenant or the
reorganization or liquidation of Tenant, or (iii) a receiver be appointed for
the property of Tenant by reason of the insolvency or alleged insolvency of
Tenant, or if (iv) any department of the state or federal government or any
officer thereof or duly authorized Trustee or Receiver shall take possession of
the business or property of the Tenant, or if (v) an involuntary petition be
filed against Tenant under any law having for its purpose the adjudication of
Tenant as a bankrupt, or for the liquidation of Tenant; and (except with respect
to items (a) and (b), supra, which shall be noncurable events of default) if
same have not been removed, cured or discharged within ninety (90) days, or if
(vi) any Receiver or Trustee pursuant to any bankruptcy or insolvency law,
whether Federal or State, shall attempt to thereafter assign this Lease to any
part or attempt to sublet all or any part of the Demised Premises.
(d) If Tenant shall default in the performance or
observation of any other agreement or condition (other than payment of rent or
Additional Rent) on its part to be performed or observed, and if Tenant shall
fail to cure said default within thirty (30) days after notice of said default
by Landlord (or, in the case of a default not susceptible of a cure within
thirty (30) days, if Tenant shall fail to commence a cure within thirty (30)
days and diligently complete such cure within a reasonable time under the
circumstances.
14.2 During the period of an uncured Event of Default:
(a) Landlord may (i) permit Tenant to remain in possession
and xxx for all rents, damages, attorneys' fees and collection costs as due; or
(ii) terminate this Lease by written declaration, but allow Tenant to remain in
possession as Tenant at will and xxx Tenant for all rents, damages, attorneys'
fees and collection costs; or (iii) immediately, or at any time thereafter,
through legal process, re-enter and resume possession of the Demised Premises
and remove all persons and property therefrom either by summary dispossess
proceedings or by a suitable action or proceeding at law or in equity (or in the
case of a permanent abandonment of the Demised Premises by Tenant by peaceful
self-help), without being liable for any damages therefor (no re-entry by the
Landlord shall be deemed an acceptance of a surrender of this Lease unless
accompanied by a written declaration signed by Landlord to that effect); or (iv)
upon re-taking possession, keep the premises vacant (subject to reasonable
efforts at mitigation of Landlord's damages) and recover from Tenant all rents,
damages, reasonable attorneys fees and collection costs as hereinafter provided;
(v) without liability to Tenant or any other party and without constituting a
constructive or actual eviction, Landlord may suspend or discontinue furnishing
or rendering to Tenant any property, material, labor, or other service (other
than utilities), wherever Landlord is obligated to furnish or render the same,
so long as an Event of Default has occurred and is continuing under this Lease;
or (vi) upon re-taking possession
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Landlord may, as Tenant's agent and without effecting Tenant's liability
hereunder, relet the whole or any part of the Demised Premises for a period
equal to, or greater, or less than the remainder of the then term of this Lease,
at such rental and upon such terms and concessions as Landlord shall deem
reasonable, to any lessee or lessees which it may deem suitable and satisfactory
for any use and purpose which it may deem appropriate. In no event shall the
Landlord be liable in any respect for failure to relet the Demised Premises or
in the event of such reletting, for failure to collect the rent thereunder
provided that Landlord has complied with its mitigation obligations as
aforesaid. Any sums received by the Landlord on a reletting for any monthly
installment of rent in excess of the rent reserved in this Lease shall belong to
Landlord;
(b) Delinquent Fixed Rent and Additional Rent shall bear
interest at the lower rate of either twelve percent (12%) per annum or the
maximum rate permitted by law, from the date on which it is due until the date
on which it is paid. This provision shall not relieve Tenant from any payment of
Fixed Rent, late charges or Additional Rent at the time due and in the manner
specified herein.
(c) Tenant hereby expressly waives the service of notice of
intention to re-enter as provided for in any statute and also waives any and all
rights or equity of redemption in case the Tenant shall be dispossessed by a
Court. The terms "enter," and "re-enter," "entry," or "re-entry," as used in
this Lease, are not restricted to their technical legal meaning.
(d) the termination of this Lease shall not in any
circumstance operate to relieve the Tenant from liability for performance of all
of its obligations hereunder. Upon any such termination of this Lease, Tenant
covenants that it will quit and surrender the premises and deliver possession
thereof to Landlord.
14.3 No waiver by the Landlord of any Event of Default by Tenant
shall constitute or be construed as a waiver of any other or future Event of
Default. No waiver by the Tenant of any default or breach by the Landlord shall
constitute or be construed as a waiver of any other or future default or breach.
No waiver by either party shall be effective unless in writing.
14.4 The acceptance by Landlord of rent or other charges from
Tenant (in whole or in part) after any Event of Default, even though known to
Landlord, shall not constitute a waiver of the default/breach, unless the Event
of Default is cured in full. The acceptance by Landlord of rent or other charges
from Tenant (in whole or in part) shall not be deemed an accord and satisfaction
in respect of any claims of Landlord against Tenant, notwithstanding the payment
check or accompanying letter may bear a legend or endorsement to the contrary.
The acceptance of payment as above shall not affect any notice of default or any
action or proceedings or judgment or order taken in consequence of the default.
14.5 In the event of (a) the termination of this Lease under the
provisions of Article 14 hereof, (b) the re-entry into the Demised Premises by
Landlord under the provisions of this Article 24, or (c) the termination of this
Lease (or re-entry) by or under any
-25-
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
rent due from Tenant at the time of such termination or re-reentry, or at
Landlord's option, against any damages payable by Tenant under this Lease or
pursuant to law.
14.6 In the event of any termination of this Lease under the
provisions of Article 14 or in the event that Landlord shall re-enter the
premises lawfully 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, Tenant will pay to Landlord as damages, at the sole
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, is
equal to the excess, if any, between: (i) the aggregate of all rent which would
have been payable hereunder by Tenant had this Lease not so terminated 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 date set for the
expiration of the full term hereby granted, over (ii) the aggregate of all rent
of the Demised Premises for the same period based upon the then local market
rental value of the Demised Premises as determined by taking into account any
market concessions such as tenant improvements, free rent, construction
allowances, rent abatement, moving allowances and other rental concessions,
financial strength of the tenant, location in the building, and comparable
renewal leases (on the bases of factors such as, but not limited to, size and
location of space and the term of the lease), if any, recently executed for
space in other buildings in the Bergen County, New Jersey, which are comparable
to the Building in reputation, quality, age, size, location and quality of
services provided (the foregoing factors not being exclusive in identifying
comparable buildings). Landlord shall also be entitled to recover the reasonable
value of restoring the Demised Premises and reletting same (including brokers
commissions) as an element of damage, discounted to present value at the prime
rate of interest announced as of the Event of Default in The Wall Street
Journal; or
(b) sums equal to the aggregate of all rent which would have
been payable by Tenant had this Lease not so terminated, or had Landlord not so
re-entered the Demised Premises, payable on a monthly basis on the due dates
specified for payment of Fixed Rent under this Lease following such termination
of such re-entry and until the date hereinbefore set for the expiration of the
full term hereby granted; provided, however, that if Landlord shall re-let all
or part of the Demised Premises for all or any part of said period, Landlord
shall credit Tenant with the net rents received by Landlord from such
re-letting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord all reasonable attorneys' fees and costs
incurred in terminating this Lease and re-entering the Demised Premises and of
securing possession thereof, as well as the reasonable expenses of re-letting,
including altering and preparing the Landlord's Premises (including the Demised
Premises) for new tenants, brokers' commissions and all other similar or
dissimilar expenses properly chargeable against the Demised Premises and the
rental therefrom in connection with
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such re-letting, it being understood that any such re-letting may be for a
period equal to or shorter or longer than the remaining term of this Lease;
provided, further, that (i) in no event shall Tenant be entitled to receive any
excess of such net rents over the sums payable by Tenant to Landlord hereunder,
(ii) in no event shall Tenant be entitled in any suit for the collection of
damages pursuant to this subsection (b) to a credit in respect of any net rents
from a re-letting except to the extent that such net rents are actually received
by Landlord prior to the commencement of such suit, and (iii) if the premises or
any part thereof should be re-let in combination with other space, then proper
apportionment on a square foot area basis shall be made of the rent received
from such re-letting and of the expenses of re-letting. 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 terminated under the provisions
of Article 14, or under any provision of law, or had Landlord not re-entered the
premises.
Nothing herein contained shall be construed as limiting or
precluding the 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.
14.7 Anything herein to the contrary notwithstanding, upon an
Event of Default hereunder, or in the event of a breach or threatened breach on
the part of Tenant or Landlord with respect to any of the covenants, agreements,
terms, provisions or conditions on the part of or on behalf of such party to be
kept, observed or performed, both parties shall also have the right of specific
performance and/or injunction. The specified remedies to which either party may
resort hereunder are cumulative and are not intended to be exclusive of any
other remedies or means of redress to which either may lawfully be entitled at
any time, and either party may invoke any remedy allowed at law or in equity as
if specific remedies were not herein provided for, so long as such remedies have
not been waived by the terms of this Lease.
15. Access to Premises:
15.1 Landlord and its representatives may enter the Demised
Premises during normal business hours upon not less than forty-eight (48) hours
prior notice (except in case of emergency, when no prior notice shall be
required) for the purpose of inspecting the same and, if Landlord so elects, but
without any obligation so to do, for the purpose of making any necessary repairs
to the Demised Premises and performing any work therein. Landlord will exercise
its rights hereunder in a commercially reasonable manner so as to minimize
interference with Tenant's business operations, but nothing herein shall require
the Landlord to schedule all work during non-business hours and to thereby incur
overtime or similar extra charges. Landlord shall be prohibited from entering
any secured or protected areas within the Demised Premises without the prior
written consent of Tenant.
15.2 Landlord may enter and exhibit the Demised Premises during
usual business hours upon not less than forty-eight (48) hours prior notice for
Landlord's purposes,
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including but not limited to, inspecting the Demised Premises or showing the
Demised Premises to prospective mortgagees, purchasers, lessees or brokers.
During the final twelve (12) months of the term, Landlord may also display the
usual "To Let" or similar signs on the portions of the Land (but excluding the
Demised Premises).
15.3 Notwithstanding the foregoing in this Article 15, Tenant may
designate certain portions of the Demised Premises, including but not limited
Tenant's computer and data rooms, as "Protected Areas." Landlord recognizes that
the Protected Areas are to be secured areas and Landlord shall have no access
thereto without being accompanied by a designated representative of Tenant.
15.4 Tenant shall have access to the Demised Premises 24 hours a
day, 7 days a week, 365/366 days a year.
16. Hold Harmless:
16.1 Subject to the provisions of Section 11.9 above, Tenant
shall keep, save and hold Landlord harmless and free from all liability,
penalties, losses, damages, costs, expenses, causes of action, claims and/or
judgments to third parties arising by reason of any injury or damage to any
person or persons, or property, of any kind whatsoever, and to whomsoever
belonging, from any cause or causes whatsoever and whether arising from or by
reason of any existing or future condition, default, matter, or thing in or
about the Demised Premises, from and after the Commencement Date, including,
without limitation, damage from water and/or steam seepage or leakage in or into
the Landlord's Premises, except if caused by Landlord's negligent or intentional
acts or omissions.
16.2 Tenant hereby waives all claims against Landlord for damages
to goods, equipment, improvements, wares, and merchandise in, upon or about the
Demised Premises, the Building, the Land and any common areas and for injuries
to Tenant, its agents or third persons in or about the Demised Premises, the
Building, the Land and any common area from any cause arising at any time,
except if caused by Landlord's negligent or intentional acts or omissions.
16.3 Subject to the provisions of Section 11.9 above, Tenant
agrees that if Landlord is involuntarily made a party defendant to any
litigation concerning this Lease or the Demised Premises relating to any alleged
act or omission of Tenant, then Tenant shall indemnify, hold harmless and defend
Landlord from all liability, and reasonable costs and expenses by reason
thereof. Similarly, Landlord agrees that if Tenant is involuntarily made a party
defendant to any litigation concerning this Lease or the Landlord's Premises
relating to any alleged act or omission of Landlord, then Landlord shall
indemnify, hold harmless and defend Tenant from all liability, and reasonable
costs and expenses by reason thereof.
16.4 Anything in this Article 16 to the contrary notwithstanding,
the foregoing indemnifications in this Article 16 shall in NO EVENT apply to any
environmental matters. Any Tenant indemnification with respect to environmental
matters is set forth in
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Section 10.3 above, and any Landlord indemnification with respect to
environmental matters is set forth in Section 10.4 above.
17. Assignment or Sublease:
17.1 Tenant shall neither voluntarily, nor by operation of law,
assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any
interest therein, and shall not sublet the said Demised Premises or any part
thereof, or any right or privilege appurtenant thereto, or allow any other
person (the employees, agents, servants and invitees of Tenant excepted) to
occupy or use the said Demised Premises, or any portion thereof, without first
obtaining the written consent of Landlord. A consent to one assignment,
subletting, occupation or use by any other person shall not be deemed to be a
consent to any subsequent assignment, subletting, occupation or use by another
person. Consent to any such assignment or subletting shall in no way relieve
Tenant of any liability under this Lease or SunGard Data Systems Inc. under the
Conditional Guaranty of Payment (as hereinafter defined). Any such assignment or
subletting without such consent shall be void, and shall, at the option of the
Landlord, constitute a default under the terms of this Lease. Landlord shall not
be obligated to consider and respond to any request for consent under this
paragraph unless such request is in writing, contains a full explanation of the
proposal and provides sufficient information about the financial standing and
experience of the proposed assignee or subtenant for Landlord to make an
informed judgment. Tenant acknowledges that its sole remedy with respect to any
assertion that Landlord's failure to timely consent to any assignment or sublet
is unreasonable shall be the remedy of specific performance and Tenant shall
have no damage claim or further claim of any nature or cause of action against
Landlord as a result of Landlord's actions in refusing to timely consent, except
a claim for legal fees and costs as provided in Section 51.1 below. In the event
of any approved assignment or sublease, all rents or other payments received by
Tenant in excess of the payments due from Tenant to Landlord pursuant to this
Lease may be retained by Tenant. On demand, any assignee or subtenant shall make
payments directly to Landlord without, however, creating a direct
Landlord-Tenant relation between them or releasing Tenant under this Lease.
Landlord shall not unreasonably withhold or delay consent to an assignment or
sublease, providing that Landlord determines in its reasonable discretion that
such sublease or assignment does not lessen Landlord's security, that the use of
the Demised Premises will remain as the Permitted Use; that the proposed
assignee or sublessee is financially responsible and is sufficiently experienced
to operate the business from the Demised Premises successfully and in a manner
which shall not detract from the value of the Demised Premises, that the
proposed transaction does not present any environmental concerns.
17.2 Notwithstanding the foregoing in Section 17.1, no Landlord
consent shall be required: (a) for subleases or assignments to affiliates or
subsidiaries of the Tenant or becomes a publicly traded entity on a United
States stock exchange, provided that Tenant shall provide Landlord with thirty
(30) days advanced notice with sufficient information to confirm that: (i) there
shall be no change in the permitted use of the Demised Premises, (ii) Tenant
shall remain liable jointly and severally with the assignee/subleasee for
payment and performance of all Tenant obligations under this Lease, (iii) the
proposed assignment/sublease shall not impair Landlord's security, and (iv) the
proposed assignee or subtenant shall not
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introduce any new Hazardous Substances onto Landlord's Premises in violation of
applicable laws which is inconsistent with the existing operations of Tenant at
the Landlord's Premises; (b) for any assignment to any successor to Tenant by
purchase, merger, consolidation or reorganization; and (c) if Tenant becomes a
publicly traded entity on a United States stock exchange.
18. Condemnation:
18.1 This Lease and the term hereof shall terminate: (a) if the
entire Demised Premises shall be taken by condemnation, or (b) at the option of
Tenant (exercisable by notice given to Landlord within thirty (30) days after
the date of any such taking), if a material part of the Demised Premises shall
be taken in any condemnation proceeding(s); or (c) at the option of Landlord
(exercisable by notice given to the Tenant within thirty (30) days after the
date of taking) if more than fifteen percent (15%) of the Demised Premises or
the Building or the Land shall be taken by condemnation. A taking of a "material
part" of the Demised Premises shall mean the condemnation of so much of the
Demised Premises (including any exclusive parking) as shall materially and
adversely interfere with Tenant's operations in the Demised Premises; provided,
however, that in the event of any taking of any exclusive parking, the Landlord
shall use its best efforts to provide alternative parking of an equal or greater
size within the "Industrial Park" in which the Building and the building at 000
Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx currently occupied by Tenant, are
located in which case this Lease shall remain in full force and effect as to
such remaining portion.
18.2 Upon the termination of this Lease in accordance with this
Article, rents shall be adjusted as of such termination. The entire condemnation
award shall be the sole and exclusive property of Landlord and shall be payable
solely to Landlord except any allocations or awards for Tenant's trade fixtures
and moving expenses. Tenant shall not make any claim in any condemnation
proceeding for the value of the unexpired portion of the Lease or the term
hereof, and waives all right thereto.
18.3 In the event that any portion of the Demised Premises is
taken in condemnation and if this Lease is not terminated, then this Lease shall
remain in full force and effect as to such remaining portion, except that from
and after the effective date of any such taking, Tenant shall be entitled to a
proportionate reduction in the Fixed and Additional Rent required to be paid
hereunder in accordance with any reduction in square foot area of the Demised
Premises caused by such taking. In the event that any portion of Tenant's
exclusive parking is taken in condemnation and if this Lease is not terminated,
then this Lease shall remain in full force and effect as to such remaining
portion.
Landlord shall promptly restore the portion of the Demised
Premises remaining after such taking to a complete architectural unit. Any
restoration by Landlord shall be limited to the basic building structure as
demised by Landlord to Tenant as of the Commencement Date, and Tenant shall have
such reasonable time thereof to restore the interior of the Demised Premises to
an operational condition with an accompanying abatement of rent during such
time. Landlord shall have the right to install, maintain and alter or relocate
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within the Demised Premises any gas, water, electric or sewer lines which may be
necessary provided that Tenant's facilities are not materially or adversely
affected.
18.4 In the event this Lease is not terminated as aforesaid and
Landlord does not restore the Demised Premises within a period of ninety (90)
business days after the date of taking, then and in that event, Tenant may, as
its sole remedy, have the right to terminate this Lease by notice in writing
delivered to Landlord prior to completion of such restoration.
19. Fire or Casualty Loss:
19.1 If all or part of the Landlord's Premises is damaged or
destroyed by fire or other casualty, this Lease and all of its terms, covenants
and conditions shall, subject to the provisions hereinafter set forth, continue
in full force and effect, as follows:
A. In the event that the damage to the Demised Premises is
so extensive as to amount practically to the total destruction of the Demised
Premises and Landlord within a reasonable time after such damage shall not elect
to rebuild, then and in that event, this Lease shall cease and the rent shall be
apportioned to the time of the destruction. For the purposes of this paragraph,
damage to fifteen percent (15%) or more of the Demised Premises shall be deemed
total destruction.
B. In the event that the Demised Premises is damaged, but
not so destroyed (as set forth in Paragraph A immediately above) as to terminate
the Lease, or Landlord elects to rebuild as provided for in Paragraph A above,
then, provided that such loss is sufficiently insured and that all of the
proceeds of said insurance coverage are made available to the Landlord by any
mortgagee whose interest may be superior to the Landlord; and further provided
that the term of this Lease shall have at least two (2) years to run, and that
applicable laws shall permit, then, and in those events, the Landlord shall
repair and rebuild the Demised Premises with reasonable diligence.
Notwithstanding the foregoing: (i) in the event there is less than two (2) years
of the Lease Term remaining, or (ii) in the event Landlord's mortgagee should
require that the insurance proceeds payable as a result of a casualty be applied
to the payment of the mortgage debt and Landlord does not promptly commit to
restore with Landlord's funds, or (iii) in the event of any material uninsured
loss to the Building and Landlord does not promptly commit to restore with
Landlord's funds, or (iv) if the written estimate states that the Demised
Premises cannot be restored to substantially the condition that existed prior to
the casualty within one hundred eighty (180) days of the casualty, then either
Landlord or Tenant may, at their option, terminate this Lease by notifying the
other party in writing of such termination within ninety (90) days after the
date of such casualty. Within sixty (60) days of such casualty, Landlord shall
notify Tenant whether the Demised Premises cannot be restored to the condition
that existed prior to the casualty within one hundred eighty (180) days of the
casualty.
19.2 To the extent that the loss or destruction of the Demised
Premises substantially interferes with all or a portion of Tenant's operations
at the Demised Premises, thus requiring the Tenant temporarily to close its
business or reduce its workforce, the Fixed Rent shall be abated (or
proportionately abated with respect to a partial closure) from the date of such
-31-
closing to the date the damage shall have been substantially repaired so as to
enable the Tenant to continue its business in substantially the same fashion as
was previously operating prior to the date of such loss or destruction.
19.3 Tenant acknowledges and agrees that Landlord will not carry
insurance of any kind on Tenant's fixtures, furniture, and equipment, or on any
Tenant Improvements or other appurtenances removable by Tenant under the
provisions of this Lease, and that Landlord shall not be obligated to repair any
damage thereto or replace the same. However, if Landlord does place such
coverages on Tenant's owned property as provided in Section 11.3, all proceeds
applicable to Tenant's owned property shall be promptly transmitted to Tenant
upon receipt by the Landlord, and Landlord will use its best efforts, in
coordination with Tenant, to make the appropriate claims and recover insurance
proceeds due under the applicable coverage.
20. Estoppel Certificate:
20.1 Upon request from the either party and/or its successor in
interest, either party hereto, and/or its successors in interest, shall at any
time and from time to time upon not less than twenty (20) days prior written
notice, execute, acknowledge and deliver a statement in writing: (a) certifying
that this Lease is unmodified and in full force and effect (or, if modified,
stating the nature of such modification and certifying that this Lease as so
modified is in full force and effect), and the date to which the rental and
other charges are paid in advance, if any, and (b) acknowledging that there are
not, to such party's knowledge, any uncured defaults on the part of either party
hereunder, or specifying such defaults if any are claimed, and (c) setting forth
the date of commencement of rents and expiration of the term hereof. Any such
statement may be relied upon by the prospective purchaser or encumbrancer of all
or any portion of the real property of which the Landlord's Premises are a part,
or other interested party.
21. Signage
21.1 Under no circumstances shall Tenant place or erect, or allow
to be placed, or erected, a sign of any nature whatsoever upon any exterior
portion of the Building. Ground signs which are similar to existing ground signs
will be permitted subject to prior written approval from Landlord in connection
with any proposed sign, its location, and its manner of installation. Landlord
may remove any signs installed by Tenant which are in violation of the
provisions of this Article. In no event shall any permitted sign be installed on
the roof or above the parapet height of the Landlord's Premises or of the
Building. Any sign which Tenant may be permitted to install on the Landlord's
Premises shall nonetheless conform to any and all requirements of any
governmental body of any nature whatsoever having jurisdiction thereover,
notwithstanding Tenant's having obtained written consent from Landlord therefor.
Tenant shall have the right, as the need may occur, to apply for any sign
variances, at its sole cost and expense, provided the Landlord shall have first
approved the proposed sign. Landlord's consent to signs shall not be
unreasonably withheld, and Landlord agrees to reasonably cooperate with Tenant
to facilitate Tenant in obtaining any applicable municipal approvals therefor.
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21.2 Notwithstanding the foregoing in Article 21.2 above, the
Tenant shall have the right to erect and maintain one (1) or more pylon or
similar signs on the Landlord's Premises, provided same complies with all
regulations of applicable governmental agencies having jurisdiction thereof, and
provided the installation has received prior written approval of the Landlord,
which approval shall not be unreasonably withheld or delayed or conditioned. All
signs shall be the property of Tenant and shall be removed by the Tenant at the
termination of this Lease without damage to the Landlord's Premises and
Building.
22. Brokerage Commission: Landlord and Tenant each warrant and
represent one to another that neither has dealt with, employed or negotiated
with any real estate broker, salesman, agent or finder in connection with this
Lease Agreement except Xxxxxx X. Xxxxxxx, Inc. ("Broker"). Landlord agrees to
pay the commission due to the Broker pursuant to a separate agreement. Landlord
shall indemnify, hold harmless and defend Tenant, and Tenant shall indemnify,
hold harmless and defend Landlord, from and against any claim or claims for
broker or other commission arising from or out of any breach of the foregoing
representation and warranty by the respective indemnitors. The representations
and obligations contained in this paragraph shall survive the expiration or
termination of this Lease.
23. Unavoidable Delays:
23.1 Except as otherwise provided for in Articles 5.2 and 9.5
above, in the event that Landlord or Tenant shall be delayed or prevented from
performing any of its obligations pursuant to the provisions of this Lease
Agreement due to governmental action, or lack thereof, or due to shortages of or
unavailability of materials and/or supplies, labor disputes, strikes, slow
downs, job actions, picketing, secondary boycotts, fire or other casualty,
delays in transportation, acts of God, failure to comply or inability to comply
with any orders or requests of any governmental agencies or authorities, acts of
declared or undeclared war, public disorder, riot or civil commotion, or by any
other cause beyond the reasonable control of such party (each, a "Force Majeure
Event"), then such party shall in any or all such events be excused from its
obligation to perform and comply with such provisions of this Lease Agreement
for a period of time commensurate with any delay so caused without any liability
to the other party therefor whatsoever and all time periods provided for herein
for performance of any such obligations shall be extended accordingly.
Notwithstanding the foregoing, a Force Majeure Event shall not delay or excuse
Tenant's obligations to pay Fixed Rent or Additional Rent.
24. Subordination:
24.1 Tenant covenants that its rights under this Lease Agreement
are hereby and will be subordinate to the operation and effect of any mortgage
or mortgages now existing or hereafter placed upon the premises or building or
lot without any further written document from Tenant. However, Tenant shall,
upon request by Landlord, execute such documents as may be required to effect
such subordination to the satisfaction of any such mortgagee.
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24.2 Tenant agrees to comply with reasonable requirements for
modifications hereof made by any reputable bona fide mortgage lending
institution provided that such requirements shall not affect the basic business
terms hereof.
24.3 Tenant shall, upon request of Landlord, furnish to Landlord
at any time during the term, the most recent financial statement(s) of Tenant
for a period of up to two (2) years last past. If certified statements certified
by a certified public accountant have been prepared, then certified statements
will be provided by Tenant. Landlord agrees to keep the financial statement(s)
confidential and shall not distribute such financial information to any party
other than Landlord's agents, employees, attorneys, accountants and lender to
the extent that such parties require such information and such parties shall be
informed of the confidential nature of such information.
24.4 Tenant covenants and agrees to attorn to any successor to
Landlord's interest in this Lease.
24.5 Landlord agrees to obtain a non-disturbance agreement from
existing and future mortgagees in whatever standard form is utilized by such
mortgagees for the benefit of Tenant, and to deliver same to Tenant within a
reasonable time after execution of this Lease. Landlord hereby agrees to
cooperate with Tenant and to use best efforts to obtain from any existing and
future mortgagees on behalf of Tenant reasonable changes sought by Tenant to the
standardized form of non-disturbance agreement utilized by such mortgagees.
Anything in this Lease to the contrary notwithstanding, this Lease shall be
subordinate to any such existing and future mortgages only during the period
that a non-disturbance agreement remains in full force and effect, and otherwise
shall be superior to such instruments.
25. Security Deposit
25.1 No security deposit is required.
26. INTENTIONALLY OMITTED.
27. INTENTIONALLY OMITTED.
28. Environmental Covenants: Tenant represents, covenants, promises
and agrees as follows:
28.1 Tenant agrees to take all requisite action to insure
Tenant's material compliance with all applicable federal, state and local laws
relating to pollution of the environment, hazardous substances, air pollution,
clean air, soil, environmental protection, hazardous waste, toxic substances,
noise control, sewerage and wastewater treatment, solid waste, navigable waters,
water supply, quality and pollution, storm water, groundwater and rivers and
harbors laws applicable to Tenant's operations at the Demised Premises,
including, but not limited to, the Resource Conservation and Recovery Act, the
Clean Air Act, and Federal Water Pollution Control Act, the Toxic Substances
Control Act, and the Comprehensive
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Environmental Response, Compensation and Liability Act ("CERCLA"), the New
Jersey Industrial Site Recovery Act (N.J.S.A. 13:1K-6 et seq. and N.J.A.C.
7:26B-1.1 et seq.) ("ISRA") and/or the New Jersey Underground Storage of
Hazardous Substances Act (N.J.S.A. 58:10A-21 et seq.; N.J.A.C. 7:14B-1.1 et
seq.), if the same becomes applicable and/or the rules and regulations
promulgated under said statutes (collectively referred to as "Environmental
Laws").
28.2 Tenant shall not use or permit the use of the Landlord's
Premises to refine, produce, store, handle, generate, manufacture, heat, dispose
of, transfer, process or transport (collectively, "Use") "Hazardous Substances"
(as such term is defined in N.J.S.A. 58:10-23.11b, or any rule or regulation
promulgated thereunder), other than in such quantities as are ordinarily Used in
connection with Tenant's business as described in Article 8 and in material
compliance with applicable Environmental Laws.
28.3 The Demised Premises will not be used as a "Major Facility",
as such term is defined in N.J.S.A. 58:10-23.11b(1), or any rule or regulation
currently promulgated thereunder.
28.4 Should Tenant or any of Tenant's agents, servants,
contractors, employees, invitees, sub-tenants or assignees cause or permit any
intentional or unintentional action or omission in connection with the Demised
Premises resulting in the releasing, spilling, leaking, pumping, pouring,
emitting, emptying or dumping of "Hazardous Substances" without having obtained
a permit issued by the appropriate governmental authorities (collectively, a
"Release"), which Release requires cleanup under applicable Environmental Laws,
Tenant promptly shall clean up such spill, leak, etc, in accordance with the
provisions of the New Jersey Spill Compensation and Control Act (N.J.S.A.
58:10-23.11 et seq.) ("Spill Act"), and all other applicable Environmental Laws.
28.5 No lien has been attached, nor shall any lien be allowed to
attach to any real or personal property owned by Tenant and located at the
Demised Premises, pursuant to applicable Environmental Laws, including, without
limitation, the Spill Act and/or CERCLA.
28.6 Tenant will furnish the New Jersey Department of
Environmental Protection ("DEP") with any information in Tenant's possession
which may be required by the Spill Act, ISRA or any other applicable
Environmental Law, with respect to Tenant's Use of the Demised Premises,
including information required by ISRA due to applications submitted by the
Landlord.
28.7 In the event that there shall be filed a lien against the
Landlord's Premises, the Demised Premises, or Tenant's property thereon, by DEP
under the Spill Act or under CERCLA as a result of Tenant's acts or omissions
with respect thereto, Tenant shall within thirty (30) days from the date the
Tenant is given notice of such lien or within such shorter period of time in the
event that the State of New Jersey has commenced steps to cause a sale pursuant
to the lien, either: (a) pay the claim and remove the lien; or (b) furnish (1) a
bond reasonably satisfactory to Landlord and/or DEP in the amount of the claim
out of which the lien arises, (2) a cash deposit in the amount of the claim out
of which the lien arises, or (3) other
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security reasonably satisfactory to Landlord in an amount sufficient to
discharge the claim out of which the lien arises. Tenant reserves the right to
contest the filing of any such lien provided that Tenant shall be required to
discharge or bond off any such lien prior to commencement of any such contest.
28.8 Tenant shall not use or cause the Landlord's Premises to be
used as an "industrial establishment" as such term is defined in ISRA as of the
date of this Lease.
28.9 Tenant shall not install any underground storage tanks
without the prior written consent of Landlord.
28.10 Tenant and Landlord shall provide each other with copies of
any and all notices either party receives from the DEP with respect to the
environmental condition of the Landlord's Premises.
29. Auction Sales:
29.1 Tenant shall not conduct or permit to be conducted any sale
by auction or otherwise in, upon or from the Demised Premises whether said sale
be voluntary, involuntary, pursuant to any assignment for the payment of
creditors or pursuant to any bankruptcy or other insolvency proceeding.
30. Holding Over:
30.1 Subject to the provisions of Section 30.2 below, in the
event Tenant shall remain in possession of the Demised Premises following the
expiration of the term granted hereby and any renewals, without Landlord's
written permission, all terms of this Lease shall, as applicable, continue to
govern such possession, except that Tenant shall have the status of a tenant at
sufferance and shall pay to Landlord, as its exclusive damages for such wrongful
holdover, for each month or part thereof during which said wrong holdover
continues, double the total of the Fixed Rent and Additional Rent due from
Tenant to Landlord at the time immediately preceding such holdover.
30.2 Notwithstanding the foregoing in Section 30.1 above, Tenant
shall have the right to holdover for a period of one (1) year after the
Termination Date (the "Permitted Holdover Period"), as such date may be extended
pursuant to Tenant's "Options to Renew" under Section 40 below, provided that
Tenant complies with the terms and provisions of this Section:
(a) Tenant shall provide Landlord with not less than eleven
(11) months prior written notice of its intention to holdover beyond the
Termination Date, as such date may be extended pursuant to Tenant's "Options to
Renew" under Section 40 below.
(b) The foregoing notice shall state the amount of time that
Tenant intends to holdover in the Demised Premises, and the holdover period
under this Section 30.2 shall be limited to the period stated.
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(c) For the first two (2) months of the Permitted Holdover
Period, Tenant shall pay Fixed Rent at an amount equal to that being paid by
Tenant immediately prior to the Permitted Holdover Period. Thereafter, through
the remainder of the Permitted Holdover Period, Tenant shall pay Fixed Rent in
an amount equal to one and one-half (1.5) times the Fixed Rent prior to the
Permitted Holdover Period. Tenant shall also be required to pay Additional Rent
during the Permitted Holdover Period.
(d) Time is declared to be of the essence with regard to the
provisions of this Section 30.2.
31. Quiet Possession:
31.1 Upon Tenant paying the rent reserved hereunder and observing
and performing all of the covenants, conditions and provisions on Tenant's part
to be observed and performed hereunder, Tenant shall have quiet possession of
the Demised Premises for the entire term hereof, subject to and in accordance
with all the provisions of this Lease.
32. Representations and Warranties of Landlord. Landlord represents
and warrants to Tenant as follows:
32.1 The Landlord Improvements will comply with all applicable
requirements of State, County, City and local authorities as of the Substantial
Completion Date. Landlord shall, at its own cost and expense, promptly execute
and comply with any statutes, ordinances, rules, orders, regulations, and
requirements of all governmental or quasi-governmental authorities (including,
but not limited to, the Americans with Disabilities Act), and of their
departments or bureaus, which may now or hereafter be applicable to the Parking
Lot and exterior entryways to the Landlord Improvements as of the Substantial
Completion Date. Landlord shall promptly correct and xxxxx any such violations
not caused by Tenant, its agents, employees, affiliates and/or contractors, at
Landlord's own cost and expense (and NOT as Additional Rent).
32.2 The Landlord's Premises (excluding the Demised Premises)
when completed (i) will comply with applicable governmental requirements
(including zoning laws and regulations, land use planning and environmental
requirements), and (ii) shall be free of any liens of subcontractors,
materialmen and the like filed pursuant to the New Jersey Mechanics Lien Law
(R.S. 2A:44-64, et seq.). Similarly, Landlord shall have obtained all required
permits and approvals associated therewith.
32.3 Landlord is the owner of good, marketable and insurable
title to the Land upon which the Building is located. Such title is free and
clean of all liens and encumbrances other than those set forth on those certain
owner's policy of title insurance issued by Commonwealth Land Title Insurance
Company as Policy Xx. X000000 dated June 15, 2001, and Policy Xx. X000000 dated
June 15, 2001, and shall remain that way except for subsequent
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financing obtained by Landlord in connection with the construction and financing
of the Land and Building.
32.4 As of the Rent Commencement Date, gas, electric, water,
sewer, and storm drain utilities will be available and connected at the Building
and to the Demised Premises as provided in the Landlord Specifications. In
addition to the foregoing, Landlord has instructed Public Service Electric and
Gas Company (PSE&G) to complete an engineering study in order to determine the
feasibility of providing a secondary power service to the Landlord's Premises
pursuant to Tenant's request, which work may not be complete by the Rent
Commencement Date. Landlord and Tenant shall work together in an expeditious
manner and in good faith, with PSE&G in the design and specification of the
required electric service to the Landlord's Premises. Landlord shall install all
underground conduits for the electric service, the cost of which shall be
allocated against Tenant Allowance #3 as described in the Landlord
Specifications.
32.5 Landlord has not received any notices from DEP or any other
governmental authority having jurisdiction over environmental matters with
respect to Landlord's Premises, and to the best of Landlord's knowledge, there
has not been any intentional or unintentional action or omission in connection
with the Landlord's Premises resulting in a Release, which Release requires
cleanup under applicable Environmental Laws. If a Release is a pre-existing
condition, Landlord shall comply with its obligations under Section 10.4.
32.6 Landlord shall obtain and shall maintain all permits,
approvals and easements as are necessary to install, maintain, repair and
replace the Private Communication Ductbank (as defined in Section 45.1 below)
between the Demised Premises and the building located at 000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxx Xxxxxx, and shall continue such maintenance and make such repairs
and approvals as are necessary with reasonable expedition. Notwithstanding the
provisions of Article 13.1 to the contrary, if Landlord defaults in its
obligations under this Article 32.6 and Article 13, Tenant shall have the right
to perform Landlord's obligations, or Tenant may, alternatively, resolve such
dispute pursuant to the arbitration process described in Section 4.6 above.
32.7 During the Term and, if applicable, any renewal Term, and on
the express conditions precedent that (a) Tenant shall not allow an Event of
Default that is not timely cured by the Tenant, nor (b) give notice of early
termination to Landlord, nor (c) permanently cease its disaster recovery
operations at the Demised Premises, Landlord shall not lease any space in the
Building on Landlord's Premises nor sell Landlord's Premises or the Building to
any of Tenant's competitors who are named on Schedule "F" annexed hereto and
made a part hereof, and their successors which are competitors of Tenant's
disaster recovery business, provided that and subject to the limitation that at
no time shall the list of such competitors or their successors exceed a total of
five (5) entities as to which Landlord is restricted.
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33. Notices:
33.1 All notices and demands which are contemplated or permitted
to be given by either party shall be in writing and shall be served upon the
parties at the following addresses:
If to Landlord: 000 Xxxxxxxxxx Xxxxxx, L.L.C.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx Xxxxx, Managing Member
Fax No.: 000-000-0000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Schiffman, Berger, Xxxxxxx, Xxxxxxx & Xxxxxx, P.C.
Three University Xxxxx - Xxxxx 000
X.X. Xxx 000
Xxxxxxxxxx, X.X. 07602-0568
Fax No.: 000-000-0000
If to Tenant: SunGard Recovery Services LP
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: Controller
Fax No.: 000-000-0000
With a copy to: SunGard Recovery Services LP
0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
Attention: General Counsel
Fax No.: 000-000-0000
Notices shall be served either by personal service, or by mailing,
certified mail, return receipt requested, postage prepaid. Notices can also be
sent by facsimile transmission so long as it is sent by one of the other
methods. Personal service shall be effective upon actual delivery in person or
via a local or nationally recognized overnight courier service (including, for
example, Federal Express) to the addressee. Service by facsimile and mail shall
be deemed effective two (2) business days after the item has been successfully
transmitted by facsimile and a true copy has been deposited in the United States
Mail, to be delivered by certified mail, return receipt requested, properly
addressed as above, and postage prepaid. Service by personal service shall be
deemed effective upon receipt.
34. Parties Bound:
34.1 The covenants, agreements, terms, provisions and conditions
of this Lease shall bind and benefit the respective successors, assigns and
legal representatives of
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the parties hereto with the same effect as if mentioned in each instance where a
party hereto is named or referred to, except that no violation of the provisions
of Article 17 hereof shall operate to vest any rights in any successor, assignee
or legal representative of Tenant and that the provisions of this Article 34
shall not be construed as modifying the conditions of limitation contained in
Article 17 hereof, or Section 12.2 hereof.
35. Abandoned Personal Property:
35.1 Any personal property, which shall remain in the Demised
Premises or any part thereof after the expiration or termination of the term of
this Lease in violation of the provisions of Article 9 above shall be deemed to
have been abandoned, and either may be retained by Landlord as its property or
may be disposed of in such manner as Landlord may see fit seven (7) days after
written notice to Tenant; provided, however, that the presence of such personal
property without Landlord's consent shall be conclusively deemed an unconsented
holding over by Tenant rendering Tenant liable under Paragraph 30.1, unless
Tenant has timely exercised rights under Section 30.2 and such personal property
is removed on or before the expiration of the holdover period under Section
30.2. If such personal property or any part thereof shall be sold by Landlord,
Landlord may receive and retain the proceeds of such sale as Landlord's property
without affecting Landlord's rights against Tenant or resulting in any credit to
Tenant from damages otherwise recoverable by Landlord.
36. Article Headings:
36.1 The Article headings of this Lease are for convenience only
and are not to be considered in construing the same.
37. Governing Law:
37.1 The laws of the State of New Jersey shall govern the
validity, performance and enforcement of this Lease. The invalidity or
unenforceability of any provision hereof shall not affect or impair any other
provision.
38. Letter of Acceptance:
38.1 Upon the Tenant's accepting the Demised Premises and
commencing construction of Initial Tenant Improvements, after Substantial
Completion of the Landlord Improvements pursuant to the terms and conditions
hereof, the Tenant covenants and agrees that it will furnish to the Landlord a
written statement that it accepts the Demised Premises, subject to the terms and
conditions of the Lease as herein contained (including Punch List Items and
latent defects).
39. Tenant's Right to Lease Unit B:
39.1 From the date that this Lease is executed through October
31, 2002, Tenant shall have the exclusive right to lease Unit B, consisting of
approximately
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68,306 square feet of single-story floor area as shown on the attached Schedule
"A" ("Unit B"). Tenant shall exercise this option by notice in writing to
Landlord. If Tenant has not provided such notice to Landlord, then from and
after November 1, 2002, Landlord shall be free to lease Unit B to any other
party without notice to Tenant, subject to the provisions of Articles 39.2 and
39.3 below.
39.2 Notwithstanding the foregoing in Article 39.1 above, if
Landlord has not leased Unit B to a third party after November 1, 2002, Tenant
shall have a continuing right to lease Unit B at any time prior to January 31,
2003, in which case the annual fixed rent for the entire Demised Premises (Unit
A and Unit B) shall be as set forth on the attached Schedule "D". If Tenant
leases Unit B after February 1, 2003, the alternate fixed rent structure
outlined in Schedule "D" shall not apply, and Landlord and Tenant shall
negotiate an alternative fixed rent acceptable to both Landlord and Tenant.
39.3 If Tenant shall not have leased Unit B pursuant to the
provisions of Articles 39.1 and 39.2 above, then Tenant shall have the exclusive
right to lease Unit B for a period of eight (8) years commencing on October 1,
2007, and terminating on September 30, 2015, at the then escalated Fixed Rent
for the Demised Premises as shown on the attached Schedule "C". To exercise such
right, Tenant shall notify Landlord in writing prior to January 1, 2007, that
Tenant has exercised its option to lease Unit B. If Tenant does not exercise its
option to lease Unit B prior to January 1, 2007, Tenant shall have no further
preferences to lease Unit B. Landlord acknowledges and agrees that Tenant's
rights under this Article 39.3 shall be superior to the rights of any existing
or new tenant(s) for Unit B.
40. Options to Renew:
40.1 Tenant shall have the right to renew its lease for the
Demised Premises for two (2) five year periods by providing Landlord with twelve
(12) calendar months written notice prior to the expiration of the then current
term. TIME FOR NOTICE OF EXERCISE OF TENANT'S OPTIONS IS HEREBY DECLARED TO BE
OF THE ESSENCE.
(a) The initial year's Fixed Rent for the first year of the
first renewal option period, if exercised, shall the Fixed Rent applicable to
the preceding lease year.
(b) The initial year's Fixed Rent for the first year of the
second renewal option period, if exercised, shall the Fixed Rent applicable to
the preceding lease year plus three (3%) percent.
40.2 Fixed Rent for each and every successive and consecutive
year of a new term shall be increased, cumulatively, by an amount equal to three
(3%) percent of the prior year's Fixed Rent in the same manner that Fixed Rent
increases by three (3%) percent each year during the initial term as set forth
on Schedule "C" and Schedule "D."
40.3 Except as to the amount of Fixed Rent, all of the other
terms, covenants, conditions and agreements set forth in this Lease shall apply
to all renewal terms;
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except that there shall only be two (2) options to renew as set forth in this
Article 40 of this Lease.
41. Right of First Offer on Purchase of Landlord's Premises:
41.1 Tenant shall have a Right of First Offer for the purchase of
the Landlord's Premises. Landlord agrees to provide Tenant with written notice
of the availability of the Landlord's Premises for sale and to offer the
Landlord's Premises in its entirety to Tenant on such terms as Landlord finds
acceptable in its sole discretion, prior to marketing the Landlord's Premises to
other prospective buyers. Tenant shall have sixty (60) days from the date of
Landlord's notice to respond in writing to the same. If Landlord has not
received a written response by the end of said sixty (60) day period or if
Tenant declines to accept Landlord's offer or if Tenant makes a counteroffer
that Landlord rejects in writing as unacceptable in its sole and absolute
discretion, Landlord shall thereafter be free to market and sell the Landlord's
Premises without further notice to Tenant. If Landlord and Tenant agree on terms
for the sale of the Premises, but are subsequently unable, in good faith, to
consummate an agreement with respect thereto acceptable to both Landlord and
Tenant, Landlord shall thereafter be free to market and sell the Landlord's
Premises on such terms and conditions as Landlord shall determine, subject as
aforesaid.
42. Conditional Guaranty of Payment.
42.1 As additional consideration for this Lease, SunGard Data
Systems Inc. shall provide to Landlord contemporaneously with the execution of
this Lease a conditional guaranty of payment in the form annexed hereto as
Schedule "G".
43. Mobile Data Center. Subject to Tenant's obligation to obtain a
Certificate of Occupancy and any other required permits, Tenant shall have the
right during a disaster recovery and/or a demonstration or testing event to park
fifteen (15) of its mobile recovery Units (the "Units") in the parking area
adjacent to the Building (the "Parking Lot"), which right is subject to the
following conditions and requirements:
43.1 The Units, when used, are to be located on the Parking Lot
in the area designated on Schedule "A" attached hereto and made a part hereof.
Said location may be moved to another location in the Parking Lot mutually
approved by Landlord and Tenant: (i) if required by Landlord, provided Landlord
has a sound business reason for requiring the change in location, in which event
Landlord shall pay for the costs of the relocation, or (ii) if required by law,
in which event Tenant shall pay for the costs of the relocation. The Landlord
hereby agrees to use its best efforts to accommodate Tenant's temporary,
increased parking needs during a disaster recovery situation, for a period not
to exceed one hundred fifty (150) calendar days in any twelve (12) month period,
by providing additional parking in the Parking Lot for the Building as well as
in other parking lots adjacent to buildings owned by Landlord (or an affiliate
or subsidiary thereof or of Xxxxx Development, L.L.C.), between the Building and
the other building occupied by Tenant at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx
Xxxxxx.
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43.2 The Units may not be in the Parking Lot for more than five
(5) consecutive days per visit for test purposes, and for no more than two (2)
separate visits per twelve (12) month period for test purposes. The foregoing
time limitations shall not be applicable to disaster events necessitating the
use of the Units.
43.3 Tenant shall give Landlord at least five (5) days prior
written notice of the dates it intends to locate the Units in the Parking Lot
for test purposes. In disaster recovery situations, Tenant will use its best
efforts to provide Landlord with as much prior notice as is reasonably possible.
43.4 Tenant shall have the right, at any time during the term of
this Lease, and at Tenant's sole cost and expense, to install a "hitching post"
(substantially similar in configuration to that set forth on the diagram
attached hereto and made a part hereof as Schedule "I" to connect the Units to
the Demised Premises, at the location set forth on Schedule "A" attached hereto,
subject to Tenant's receipt of any necessary governmental approvals with respect
to such site. Tenant may request that the hitching post and any underground
conduit to connect such post to the Demised Premises (or portions thereof), be
installed as part of the Landlord Improvements, which Landlord is willing to do
at Tenant's sole cost and expense.
44. Rooftop Rights.
44.1 Landlord hereby grants to Tenant the right to install, use,
operate, maintain, repair and remove, at Tenant's sole cost and expense, one (1)
antenna and one (1) satellite dish (collectively, the "Antenna Equipment") on
the roof of the Building in the location or locations (the "Roof Demised
Premises") to be mutually agreed upon by Landlord and Tenant. The term "Antenna
Equipment" includes any related equipment, cabling, wiring or other device or
thing used in or about the Building in connection with the aforedescribed
antenna and related equipment. All Antenna Equipment and the manner of the
installation thereof shall be subject to Landlord's prior written approval, not
to be unreasonably withheld, delayed or conditioned.
All work, installation, maintenance and operation permitted
by Landlord pursuant to this Amendment must conform to all laws, regulations and
requirements of federal, state and county governments, and any other public or
quasi-public authority having jurisdiction over the Roof Demised Premises.
Tenant shall obtain all necessary licenses from the Federal Communications
Commission ("FCC") and all installation, maintenance and operation shall be
conducted in conformance with FCC rules and/or operating authority.
No Antenna Equipment may exceed three (3) feet in diameter
or six (6) feet in height.
44.2 Tenant, at Tenant's sole cost and expense, shall install,
maintain and repair the Antenna Equipment. Tenant shall, not later than at the
expiration of the Term of the Lease, remove the Antenna Equipment from the roof
of the Building and restore same to substantially the same condition as on the
date hereof, ordinary wear and tear excepted.
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44.3 Tenant, at its sole cost and expense, shall procure and
maintain in effect, all government approvals, including, but not limited to, any
licenses or permits necessary for the installation, use, operation, maintenance,
repair and/or removal of the Antenna Equipment.
44.4 Tenant will, at Tenant's expense, provide the necessary
power installation for the operation of the Antenna Equipment. Tenant shall not
install or operate any Antenna Equipment or other machinery that operates with
voltage in excess of the Building capacity unless Tenant, at its sole cost and
expense, installs such equipment as necessary to increase the Building capacity
and obtains the prior written consent of Landlord, which consent may be withheld
in Landlord's sole and absolute discretion.
44.5 Subject to emergencies and periods of preventative
maintenance, Landlord agrees that throughout the Term of this Lease, Tenant, or
any of the designated representatives of Tenant, shall have 24-hour access to
the roof of the Building for the purpose of installing, using, operating,
maintaining and repairing the Antenna Equipment. Subject to the provisions of
Section 11.9 above, Tenant shall indemnify, defend and hold harmless Landlord
from and against any and all costs, expenses, claims, losses or damages
resulting from and damage to property or injury to person resulting from any
such access.
44.6 Tenant acknowledges and agrees that any changes to and/or
installations upon the roof are to be performed by a contractor approved by the
entity providing the roof warranty so as not to void the warranty. For purposes
hereof, X. Xxxxxx Roofing and Sheet Metal, Inc. and Xxxxxxxx Roofing, Inc. are
contractors that satisfy the foregoing condition for a period of twelve (12)
months from the date hereof. Prior to commencement of the work on the roof,
Landlord shall inspect the roof to determine whether there is any existing
damage which requires repair; and after completion of Tenant's work on the roof,
Landlord shall have a similar inspection conducted. If there is any damage to
the roof during the foregoing period, Tenant shall be responsible, at its sole
costs and expense for repairing any and all such damage, unless such damage was
caused by the act or omission of Landlord, its employees, agents, contractors or
invitees.
45. Redundant Conduit Line.
45.1 As part of the Landlord Work, but at Tenant's sole cost and
expense, Landlord shall install two (2) independent and redundant conduit
ductbanks between the Demised Premises and the building located at 000 Xxxxxxx
Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx. Each independent ductbank will consist of four
(4) four inch (4") diameter conduits (the "Private Communication Ductbank"). The
Landlord will provide all design and engineering including construction
inspections and certifications; permitting; xxxx-out of all existing utilities;
and construction, including management, supervision, labor, materials, tools,
supplies and construction equipment, excavations of all classes, including rock
excavation and dewatering; protective barriers and traffic control, bracing and
support of all existing utilities, as needed, public road crossings with
concrete protection; all necessary for the complete development of the
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work. The completed Private Communication Ductbank will be for the exclusive use
of the Tenant. All telecommunication cabling will be provided by the Tenant. The
parties acknowledge and agree that Substantial Completion of this work will not
occur until April 1, 2003, and that Tenant's rights under Section 9.5 above
shall not apply to the foregoing work under any circumstances, but in lieu of
those provisions, if Substantial Completion of this work is not installed on or
before April 1, 2003, then and in that event the Tenant shall have as its sole
and exclusive remedy a one-time, fixed credit of One Hundred Thousand
($100,000.00) Dollars against the next succeeding installments of Fixed Rent for
such delay; provided, however, that Landlord shall continue to diligently purse
the completion of installation of the Private Communication Ductbank, if and to
the extent that completion is reasonably practicable.
46. Supplemental HVAC
46.1 Tenant shall have the right to install up to one thousand
two hundred (1,200) nominal cooling tons of supplemental air cooled HVAC for
exclusive use by Tenant on the roof of the Building to the extent that the roof
can support the weight of such tonnage, as reasonably determined by Landlord. In
the event such HVAC equipment cannot be accommodated on the roof, then Tenant
shall have the right to install said HVAC equipment in or on another location
(e.g., landscaped area outside the Building) reasonably acceptable to Landlord
and Tenant. Tenant shall also have the right to install in the Demised Premises
supplemental HVAC systems at locations determined by Tenant.
46.2 Tenant shall be responsible for obtaining all permits and
approvals as are necessary for the installation, use and operation of the HVAC
equipment.
46.3 Tenant shall obtain Landlord's prior approval of all plans
and specifications for the HVAC equipment, which shall include the proposed
location of the HVAC equipment, which approval shall not be unreasonably
withheld, delayed or conditioned.
46.4 No discharge condenser air will be allowed to be ejected
into the Building or Building plenum. Tenant shall pay all costs incurred in
connection with the installation, use, operation, maintenance and, if
applicable, removal of said HVAC units. Tenant shall, at its expense, maintain
all said HVAC units in good condition.
46.5 The Landlord shall install a minimum of 850,000 btu's of
unit heater in Unit B and shall operate such heater until Unit B is occupied to
provide minimum heat for freeze protection and the overloading of utility
charges on Tenant.
46.6 Tenant acknowledges and agrees that any such installations
upon the roof are to be performed by a contractor approved by the entity
providing the roof warranty so as not to void the warranty. For purposes hereof,
X. Xxxxxx Roofing and Sheet Metal, Inc. and Xxxxxxxx Roofing, Inc. are
contractors that satisfy the foregoing condition for a period of twelve (12)
months from the date hereof. Prior to commencement of the work on the roof,
Landlord shall inspect the roof to determine whether there is any existing
damage which requires repair; and after completion of Tenant's work on the roof,
Landlord shall have a similar
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inspection conducted. If there is any damage to the roof during the foregoing
period, Tenant shall be responsible, at its sole costs and expense for repairing
any and all such damage.
47. Venting.
47.1 Tenant shall have the right to vent through the roof of the
Building as required for the installation by Tenant of any special equipment in
connection with its use of the Demised Premises, including but not limited to,
supplemental HVAC units, kitchen exhaust, etc. The location and type of venting
shall be subject to Landlord's prior written approval, which approval shall not
be unreasonably withheld. Tenant shall, at its expense, maintain all said
venting and the area of the roof effected by such venting in good condition.
Notwithstanding the foregoing, Tenant's rights granted pursuant to this
Paragraph are subject to the terms and conditions of Landlord's roof warranties
and contracts, and Tenant, at its cost, shall comply with the terms and
conditions of said warranties and contracts, including, without limitation, any
requirement that certain roofers or roofing companies perform such roof work.
47.2 Tenant acknowledges and agrees that any such installations
upon the roof are to be performed by a contractor approved by the entity
providing the roof warranty so as not to void the warranty. For purposes hereof,
X. Xxxxxx Roofing and Sheet Metal, Inc. and Xxxxxxxx Roofing, Inc. are
contractors that satisfy the foregoing condition for a period of twelve (12)
months from the date hereof. Prior to commencement of the work on the roof,
Landlord shall inspect the roof to determine whether there is any existing
damage which requires repair; and after completion of Tenant's work on the roof,
Landlord shall have a similar inspection conducted. If there is any damage to
the roof during the foregoing period, Tenant shall be responsible, at its sole
costs and expense for repairing any and all such damage.
48. Grounding of Equipment.
48.1 Tenant shall have the right to ground its equipment to the
base steel in the Building at location(s) mutually agreed upon by Landlord and
Tenant.
49. Backup Electrical Generators.
49.1 Tenant is hereby granted the right to install, at Tenant's
sole cost and expense, up to six (6) above-ground backup electrical generators
for Tenant's use solely in the Demised Premises. Tenant shall also be permitted
to install such above-ground storage tanks as are necessary or appropriate to
operate the Backup Electrical Generators in the event of a power outage or other
emergency. (Such items are hereinafter referred to as the "Generator System".)
Tenant shall be responsible for obtaining all permits and approvals as are
necessary for the installation of the Generator System.
49.2 After the installation of the Generator System, Tenant, at
its sole cost and expense, shall be responsible for: (a) maintaining such
permits and approvals as are necessary for the maintenance and operation of the
Generator System; (b) complying with all applicable statutes, laws and/or
ordinances, as are necessary to permit and continue the use,
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maintenance and operation of the Generator System; (c) repairing any damage or
deterioration to the Landlord's Premises or the Building caused in whole or in
part by the existence, installation, removal, operation or maintenance of the
Generator System; and (d) all expenses imposed by any statute, law or ordinance
of any governmental, quasi-governmental or regulatory authority relating to the
use and operation of the Generator System.
49.3 Tenant may use the Generator System during: (a) testing and
regular maintenance, and (b) any period of electrical power outage in the
Demised Premises.
50. Due Execution.
50.1 The individual signing this Lease on behalf of the Tenant
does hereby represent and warrant to Landlord that he/she has the full right,
power, capacity and authority to execute and deliver this Lease as a binding and
valid obligation of the Tenant hereunder. The individual signing this Lease on
behalf of the Landlord does hereby represent and warrant to Tenant that he/she
has the full right, power, capacity and authority to execute and deliver this
Lease as a binding and valid obligation of the Landlord hereunder.
51. Payment of Tenant's Legal Costs Under Special Circumstances.
51.1 If Tenant files an action (i) to compel Landlord's consent
to Structural Alterations under - Section 9.2, or (ii) to recover reimbursement
for emergency repairs to avoid a Shut-Down Condition under Section 13.1, or
(iii) to compel Landlord's consent to a sublease or assignment under Section
17.1, and if the Tenant is the prevailing party in any such action, and if the
Court determines that Landlord's bad faith necessitated the filing of such an
action, then in addition to other relief awarded to Tenant, Tenant shall be
entitled to an award of reasonable counsel fees and litigation expenses in the
discretion of the Court.
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused to be
executed, these presents, as of the date first hereinabove set forth.
Signed, Sealed and Delivered 000 XXXXXXXXXX XXXXXX, L.L.C.
in the Presence of: (Landlord)
/s/ Xxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
------------------------------- -------------------------------------
Xxxxxx Xxxxx, Managing Member
SUNGARD RECOVERY SERVICES LP
(Tenant)
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. XxXxxxxx
------------------------------- -------------------------------------
Xxxxxx X. XxXxxxxx,
Vice President and Controller
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Schedule "A"
Lease Plan
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Schedule "B"
Landlord Specifications
Landlord shall construct a building of approximately 172,477 square feet,
approximately 104,171 square feet of which (consisting of approximately 86,297
square feet of ground floor area and approximately 00,000 xxxxxx xxxx xx xxxxxx
xxxxx xxxx) will be leased by Tenant. The Landlord Improvements shall include
all building shell and core items as described in these specifications.
GENERAL REQUIREMENTS:
Permitting:
Landlord shall obtain all required permits for the development of the Landlord
Improvements.
Quality Control:
Landlord shall provide all labor, materials, construction equipment, and other
services necessary for the construction of the Landlord Improvements. All
materials shall be new and of good quality from a reputable manufacturer
established in the production of the material. Landlord shall contract with an
independent consultant to provide quality control testing services when required
by Code.
SITE WORK:
The Landlord shall perform all site work as indicated on the construction
drawings, including but not limited to, excavation and removal of all organic
soil, rough and finish grading, and placement of control fill to raise the
building finished floor elevation to approximately seventeen feet (17.00')
national geodetic vertical datum (NGVD). All control fill beneath the building
foundation shall be clean, hard and durable containing no clay lumps,
vegetation, or organic matter. All fill shall be placed under the direction of a
New Jersey Professional Engineer to provide ninety-five percent (95%) minimum
compaction.
PAVING AND CURBS:
All parking and loading areas shall be supported by a controlled fill sub-base.
Landlord shall provide light duty pavement (4" of dense graded aggregate (DGA)
subbase with 2" of 3/4" stabilized base hot bituminous concrete, mix I-2 base
course and 2" of fine aggregate (FABC) hot bituminous concrete, mix I-5 top
course) for all parking areas and heavy duty pavement (4" of DGA subbase with 4"
of 3/4" stabilized base hot bituminous concrete, mix I-2 base course and 2" of
FABC hot bituminous concrete, mix I-5 top course) for all loading areas as per
the construction drawings.
The DGA subbase shall be rolled to achieve the maximum amount of compaction. All
pavement shall be compacted thoroughly with a vibratory roller and/or
three-wheel, 10 ton roller.
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Landlord shall provide all concrete site curb (6"x9"x20") as indicated on the
construction drawings. All concrete shall be Class B, 4,000 pounds per square
inch (PSI), New Jersey Department of Transportation approved.
Upon Tenant's request in writing to Landlord, Landlord shall install, at
Landlord's sole cost and expense, a sidewalk between Landlord's Premises and the
premises leased to Tenant at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx. If,
as and when the sidewalk is installed, Landlord shall maintain, repair and
replace the sidewalk as reasonably necessary during the term of this Lease, the
cost of which may be included as part of Additional Rent for the Landlord's
Premises as well as all of the other buildings in the business park owned or
controlled by Tenant or one of its subsidiaries, affiliates or parents, that are
served by such sidewalk.
LANDSCAPING
Landlord shall provide finish landscaping of a design and quality comparable to
SunGard's existing facility at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxx Xxxxxx.
This work shall include sodded lawn areas, a variety of deciduous, evergreen,
and specimen trees, a variety of annual and perennial flower beds, and a timed
irrigation system as indicated on the construction drawings.
CONCRETE WORK:
All concrete work shall be done in accordance with the building code
requirements of the American Concrete Institute (ACI) Code 318 Latest Edition
and the Building Owners and Contractors Association (BOCA) Building Code Latest
Edition (1996). All concrete shall have an ultimate compressive strength of not
less than 3,000 PSI after twenty-eight (28) days and shall be uniform in
strength to a tolerance of 5%.
Footings:
All footings shall be poured concrete footings sized as indicated on the
construction drawings. The top of all interior footings shall be 8" below
finished floor, except as indicated on the construction drawings. The bottom of
all exterior footings shall be placed at a minimum of 3'-0" below finished
grade. The thickness of reinforcing steel shall conform to the American Society
of Testing Materials (ASTM) A615-1970 for deformed billet-steel bars.
Foundation Walls:
All foundation walls shall be poured concrete with reinforcing steel as shown on
the construction drawings.
Insulation around the interior perimeter of the foundation walls shall be
provided in accordance with the requirements of the BOCA Building Code for
allowable "U" factors and overall thermal performance. This insulation shall
consist of 2" expanded polystyrene (EPS) rigid insulation board installed
continuously around the perimeter of the building. The foundation wall
insulation shall extend approximately two (2) feet below the finished floor
elevation.
Concrete Slab:
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The concrete slab shall be reinforced with steel reinforcing fibers manufactured
by the Bekaert Corporation or an equivalent manufacturer at a dosage of at least
twenty (20) pounds per cubic yard. The concrete slab shall achieve a minimum
flatness (FF) rating of 35 and a minimum levelness (FL) rating of 25. The
concrete floor shall be sealed with one coat of Sealhard concrete floor hardener
and sealer after the concrete floor has cured for at least eight (8) days.
EXTERIOR WALLS:
The north and west wall elevations of the building shall consist of a 12"
pre-cast concrete wall panel system with 2.5" of rigid, polystyrene insulation
(the wall system shall achieve an approximate "R" value of 12.0.) The east and
south wall elevations of the building shall be constructed with 12" concrete
masonry units and a 12" x 4" x 4" utility brick veneer as manufactured by
Xxxxxxxx Xxxx Products with type S, premixed Flamingo mortar. All exterior wall
panel surfaces shall be coated with a stain manufactured by Chemprobe Coating
Systems. All exterior brick surfaces shall be coated with a clear, water
repellant such as Prime-A-Pel Plus or an equivalent substitute. All exterior
expansion joints in the exterior wall system shall be caulked and tooled
utilizing a two-part polyurethane caulk. The exterior walls shall extend above
the roof surface creating a parapet in order to direct all roof drainage to
interior roof leaders.
STRUCTURAL STEEL:
Landlord shall design, fabricate and erect all structural steel in accordance
with each of the following:
STRUCTURAL STEEL American Institute of Steel Construction (AISC),
Latest Edition, for ASTM A-36 steel.
STEEL JOISTS Steel Joist Institute (SJI), Latest Edition, for
K-series open web steel joists.
STEEL DECK Steel Deck Institute (SDI), Latest Edition, for
type B wide rib 1.5" steel deck for roof framing
and 1.5" B-lock for floor framing.
All columns shall be tubular, fire-rated steel as manufactured by Fire Trol or
an equivalent manufacturer. The roof frame shall be constructed with wide span
joists. All roof girders shall be rolled steel with "I" beam sections. The
approximate column spacing for the building shall be 58'6" x 72'0" measured from
column centerline to column centerline. The clear ceiling height measured from
the top of the first floor slab to the lowest point of any structural steel
member supporting the roof frame shall be a minimum of 36'0". The clear ceiling
height for the area below the second floor mezzanine shall be approximately
20'0" and the clear ceiling height from the second floor slab to the roof frame
shall be approximately 14'0".
ROOF CONSTRUCTION:
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The Landlord shall install the roof deck, roof insulation and the roof membrane.
The roof system shall comply with Class I-90 requirements of Factory Mutual I-28
Latest Edition or satisfy all applicable codes at the time of construction. The
roof assembly will consist of 22 gauge steel deck, mechanically fastened 2.5"
polyisocyanuarate rigid insulation, and a fully adhered single-ply .060 mil EPDM
roof as manufactured by Carlisle, Firestone, or an equivalent manufacturer.
The roof surface shall be constructed with positive drainage in four directions
to minimize ponding of water on the roof and to direct all stormwater runoff to
interior roof leaders that will direct runoff via underground pipes beneath the
slab to the site outfall locations. No roof drains shall be visible from the
exterior of the building to preserve the aesthetic value of the Landlord's
Premises.
The roof membrane and insulation shall have a warranty from the roof
manufacturer for a period of no less than ten (10) years. Roof insulation shall
be rigid board insulation with a minimum R-value of 12. Roof insulation shall be
mechanically fastened to the roof deck throughout the entire roof area.
The top of the exterior parapet walls shall be covering with a metal gravel stop
or full aluminum coping as selected by the Landlord. Overflow roof drains shall
be provided for each interior roof leader to eliminate the need for scuppers
through the exterior walls of the building.
Tenant shall contract directly with Landlord's roofing contractor for the
preparation and repair of all roof penetrations (i.e. pitch pockets, vent pipes,
exhaust fans, etc.) needed during the construction of the Tenant Improvements so
that the manufacturer's warranty for the roof system is maintained.
OFFICE FINISHES WITHIN DEMISED PREMISES
Partitions:
All interior partitions shall be installed by the Tenant.
Floor Covering:
All floor covering shall be installed by the Tenant.
Acoustical Ceiling Tile (ACT)
All ACT shall be installed by the Tenant.
Doors:
All interior doors shall be installed by the Tenant.
Bathroom Finishes:
All bathroom finishes shall be installed by the Tenant.
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HEATING, VENTILATING, AND AIR CONDITIONING (HVAC):
All HVAC equipment for the Demised Premises shall be installed by Tenant.
Landlord's structural engineer shall evaluate the proposed location of any
rooftop mechanical equipment that is directly supported via steel curbs on the
roof frame. In the event that Landlord's structural engineer determines, in its
sole and absolute discretion, that the existing roof frame cannot directly
support the proposed rooftop mechanical equipment, the equipment shall instead
be supported by steel dunnage installed by Landlord (see Tenant Allowances
below).
DOORS AND DOOR FRAMES:
Loading Doors:
All loading doors shall be vertical lift, overhead steel doors as manufactured
by Xxxxxx or an equivalent manufacturer. The loading doors shall have a width of
9'0" and a height of 10'0". Loading doors shall be steel insulated sectional
doors or an equivalent substitute with 3" vertical tracks and rollers, insulated
sections with backboards, slide locks, torsion springs, weather-stripping and
other miscellaneous hardware. Door panels shall be formed from 20-gauge steel
and insulated to a minimum R-value of 17.48.
Landlord shall provide six (6) interior loading doors as shown on the
construction drawings. All loading doors shall be serviced by mechanical dock
levelers with a 35,000 pound live load capacity as manufactured be Rite Xxxx
(Model ML 886 Mechanical Dock Levelers). The levelers shall be 6' wide by 8'
long and shall be equipped with the following features:
. Chain operated spring counterbalance
. Structural stops
. Working range of 12" above dock to 12" below dock
. Walk down yieldable lip
. Night locks
. Full range toe guards
. Self-cleaning lip hinge
. Integral maintenance strut
. Full one (1) year warranty on parts and labor
Rubber dock bumpers or an appropriate alternate shall be installed on the
exterior walls of the building at each side of the loading doors.
Landlord shall install three (3) 14'x22' motor operated rolling steel doors as
manufactured by Xxxxx Xxxxxx Corp. between the interior loading area and the
exterior of the building. All weather-stripping, vertical tracks, rollers, and
associated hardware shall be included.
Entrance Doors
All aluminum and glass entrance doors shall be Kawneer 350 Series medium stile
doors with tempered glass as required by Code. All aluminum framing shall be
black, anodized aluminum. All framing shall incorporate a thermal break for
maximum thermal performance. All door
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hardware including handles, concealed overhead automatic closers, panic crash
bars, saddles, weather-stripping, and floor sweeps shall be included.
Egress Doors:
All egress doors shall be painted, hollow metal doors with panic crash bars and
other hardware as required by Code. All egress door platforms shall be masonry
with poured concrete treads for maximum aesthetic appeal and durability. All
exterior egress doors and doors through masonry walls shall be 1.75" thick
hollow metal doors constructed of 16 gauge steel with integral stops. Fire rated
doors shall be installed as required by Code and indicated on the construction
drawings. All exterior doors and door frames shall be painted to match the
outside of the exterior wall surface.
All egress doors shall exit directly onto the outside grade or onto a stair
platform as warranted by site conditions. All egress stairs shall be equipped
with painted, tubular steel guard rails.
WINDOWS AND GLAZING:
Glass
All glass shall be annealed and polished with a reflective, low-E coating on the
exterior surface of the interior lite. Tempered glass shall be provided where
required by Code. All Windows shall have 1" thermal insulated glass (.25"
exterior lite, .50" air space, and .25" interior lite) for maximum thermal
performance. All windows shall have a maximum U factor of 0.50. All windows
shall be non-operable. All glass shall be manufactured by Viracon Industries.
Spandrel glass shall be substituted for vision glass in appropriate areas.
The exterior of all windows shall be caulked with a .50" xxxxxx xxx and a two
part polyurethane caulk. The caulking shall be applied between the outside
surface of the exterior wall system and the outside surface of the window
system.
Window Framing:
All window framing shall be 1.25" extruded, black, anodized aluminum sections as
manufactured by Kawneer or an equivalent manufacturer. The window framing system
shall be Kawneer Tri-Fab VG 451T Weatherseal or an equivalent system. All types
shall conform to the requirements of AAMA Master Specification. All tubular
aluminum window framing shall be 2" x 4.5" for windows and 2" x 7.5" for
exterior curtain wall systems (with reinforcing).
Curtain Wall Framing:
All curtain wall framing shall be Kawneer 1600 Wall System or an equivalent
system with structural silicone glazed vertical joints and aluminum capped
horizontal joints.
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ELECTRICAL FOR THE DEMISED PREMISES:
Power Service:
Tenant's electrical engineer, Ratech Engineering, has provided Landlord with an
electrical load letter dated April 10, 2002 outlining Tenant's estimated demand
load for the Demised Premises. Landlord has forwarded this load letter to Public
Service Electric and Gas Company (PSE&G) for its review. Landlord shall
coordinate the installation of the permanent primary power service to the
Building (including separate service to the Demised Premises and Unit B) in
accordance with Tenant's requirement for the Demised Premises. The Tenant shall
permit Landlord to use up to 600 amps of 277/480 Volt Power from Tenant's
redundant transformer provided by P.S.E.&G. to service Unit B. Unit B will
contain a separate, direct meter to measure usage and for direct billing
purposes. All construction costs needed to extend electric service from the
public system (i.e., from the PSE&G transformers located on site) to the utility
room in the Demised Premises shall be allocated to the tenant allowance for this
work (see Tenant Allowances below). All switchgear, transformers, and other
electrical equipment required for the power service to the Demised Premises
shall be installed by Tenant.
There is currently a 200 amp, 120v/240v single-phase temporary electrical
service installed at the site for construction purposes.
Electrical Finishes:
All electrical finishes shall be installed by Tenant, except exterior site
lighting.
Safety Lighting
All safety lighting shall be installed by Tenant.
Lightning Protection:
Tenant will provide lightning protection of the entire building, including Unit
B.
Site Lighting
Exterior lighting adequate to illuminate the building, walkways, parking areas
and loading docks shall be installed by the Landlord. Site lighting fixtures
shall be mounted on the building where practicable. All lighting fixtures shall
be 400 watt metal halide, Mongoose fixtures as manufactured by Holophane
lighting or and equivalent manufacturer. Illumination levels shall be at least 1
foot-candle for all parking areas (measured three (3) feet above the ground
surface), 2-3 foot-candles for the entrance driveway, and 5 foot-candles for the
building entrance.
TELECOMMUNICATIONS:
All underground telecommunications conduit and ductbank shall be installed by
the Landlord in accordance with Tenant's specifications (see Tenant Allowances
below). All tele-communications wiring and equipment shall be the responsibility
of Tenant. [In particular, see Section 45.2 of the Lease.]
PLUMBING AND GAS SPECIFICATIONS:
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Tenant shall provide Landlord with sufficient information regarding its water
usage and sanitary discharge projections for its proposed use. Landlord will
file the appropriate applications for water service with United Water of New
Jersey, gas service with Public Service Electric and Gas Company, and sanitary
sewer connections with the Carlstadt Sewer Authority. The gas service shall be
installed to the exterior of the foundation wall adjacent to the building
utility room. The domestic water service will be sized to meet the Tenant's
needs and be stubbed above the floor in the utility room, relocated in the
center core area of the Tenant's master plan. All underground gas and plumbing
improvements inside the building foundation walls shall be installed by Landlord
in accordance with the Tenant Allowances. All aboveground gas and plumbing
improvements inside the building foundations walls, exclusive of interior roof
drains, shall be installed by Tenant.
FIRE PROTECTION:
10" fire line shall be installed from the water main in Washington Avenue and
stubbed above the floor in the building utility room. The fire protection system
for the Demised Premises shall be installed by Tenant. The fire protection
system for Unit B will be installed by Landlord and will be separately zoned
from Tenant's system. The fire protection system for Unit B will be fed from one
or more risers off of the main fire sprinkler service in the "Utility and
Mechanical Room" located in Unit A.
Fire Proofing:
Landlord shall provide all required fireproofing for the structural steel
members as required by the BOCA Building Code and any other applicable codes.
All fireproofing material shall be manufactured by Isolatek or an equivalent
manufacturer. All fireproofing material shall be applied by an installer
certified by the manufacturer.
BARRIER-FREE DESIGN:
The building shall be constructed in accordance with all Federal and New Jersey
regulations, including but not limited to the Americans with Disabilities Act,
for providing access and facilities for the physically handicapped. These
regulations shall be observed to the extent applicable for site improvements and
general access into the building. The Tenant shall be responsible for providing
barrier free access throughout the Demised Premises as part of the Tenant
Improvements.
ELEVATORS AND CIRCULATION:
Two (2) stairways for circulation to the second floor of the building and one
(1) stairway for circulation to the second floor and roof area shall be
provided. One (1) 3500 lbs. capacity, hydraulic passenger elevator as
manufactured by the Xxxx Corporation shall be installed in the main entrance
lobby. All permanent power, telecommunications, lighting and fire sprinkler
improvements needed to obtain a certificate of approval for the elevator
installation shall be constructed by the Tenant as part of its interior
improvements.
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TENANT ALLOWANCES:
The Tenant shall have an allowance for the completion of the following Landlord
Improvements that the Landlord anticipates the Tenant will require for its
proposed use of the Premises:
a. Allowance #1: Underground work for the sanitary sewer system. This allowance
will be applied to all excavation, plumbing and backfill work for all sanitary
lines within the building as designed by Tenant: $60,000
b. Allowance #1A: Tenant shall have an additional allowance for the underground
sanitary sewer improvements as a result of Landlord's substitution of PVC pipe
for cast-iron pipe during the construction of the roof leaders for the interior
roof drains: $25,000
c. Allowance #2: Underground work for the electrical grounding system as
designed by Tenant $24,000
d. Allowance #3: Underground work for electrical and/or telecommunications
services (manholes, handholes, ductbank, etc.) to a location in the building as
designed by Tenant: $155,000
e. Allowance #4: Six (6) 10'x20'x8" concrete pads to support backup power
generators installed by Tenant: $21,000
f. Allowance #5: Roof pavers to service the rooftop mechanical equipment:
$12,000
g. Allowance #6: Four (4) 58' x 72' roof dunnage platforms to support rooftop
mechanical equipment ($65,000 per platform): $260,000
h. Allowance #7: Main entrance lobby finishes including granite floor covering,
interior brick veneer, main stairway and decorative handrails for the stairway
and second floor balcony: $113,000
In the event that Tenant exercises its option to lease Unit B prior to February
1, 2003, the following additional allowance amounts (the "Additional Tenant
Allowances") shall be given to Tenant:
a. Allowance #1: $40,000
b. Allowance #1(A): $-0- (no additional allowance)
c. Allowance #2: $16,000
d. Allowance #3: $80,000
e. Allowance #4: $14,000
f. Allowance #5: $8,000
g. Allowance #6: $130,000
h. Allowance #7: $0- (no additional allowance)
Landlord's construction costs (collectively, the "Landlord Costs") for
Tenant Allowances #0, #0X, #0, #0, xxx #0, including the similarly numbered
Additional Tenant Allowances, shall
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be the construction costs estimated by the Landlord with a ten percent (10%)
markup for profit and a ten percent (10%) markup for overhead when the Landlord
is acting as both General Contractor and Subcontractor. The Landlord Costs for
Tenant Allowances #5, #6 and #7, including the similarly numbered Additional
Tenant Allowances, shall be the construction costs estimated by the Landlord
with a five percent (5%) markup for profit and a five percent (5%) markup for
overhead when Landlord is acting as the General Contractor only. All permit fees
paid by Landlord for the Tenant Allowances shall be added to the Landlord Costs
without markup for profit or overhead. All design work completed by Landlord's
consultants for the Tenant Allowances shall be added to the Landlord Costs
without markup for profit or overhead. All costs for minor design work completed
by Landlord's in-house architectural staff will be completed at no cost to
Tenant and will not be added to the Landlord Costs.
Landlord shall provide Tenant with a detailed breakdown of the Landlord
Costs prior to the commencement of work for each Tenant Allowance. To the extent
that the aggregate of the Tenant Allowances (including the Additional Tenant
Allowances) exceed the aggregate of the Landlord Costs, such shall be refunded
by the Landlord to the Tenant on the Rent Commencement Date (or set-off against
Tenant's Fixed Rent obligations under the Lease). Conversely, to the extent that
the aggregate of the Landlord Costs exceed the aggregate of the Tenant
Allowances (including the Additional Tenant Allowances), then such shall be paid
by the Tenant to the Landlord as Additional Rent on the later of the Rent
Commencement Date or thirty (30) days after Tenant's receipt of an invoice
therefore from Landlord.
ADDITIONAL LANDLORD IMPROVEMENTS PAID FOR BY TENANT:
Landlord shall install twenty-three (23) 20'4" x 9'0" windows, two (2) aluminum
and glass egress mandoors and one (1) 5'1" x 9'0" window along the south wall of
the building (the "Additional Windows"), including any required steel lintels,
at a total cost of $148,000 to be paid by Tenant in full on the Rent
Commencement Date.
EXCLUSIONS:
The Landlord Improvements do not include the following exclusions:
. All interior improvements other than the building shell and core;
. Office furniture;
. Surveillance camera security system; and
. All work not specifically mentioned herein.
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Schedule "C"
Fixed Rent for Unit A Only
Demised Premises 104,171square feet
Annual Total Annual Monthly
Period Rent PSF Rent Rent
-------------------------------------------------------------------------------------
February 1, 2003 through September 30, 2003 $17.09 $ 1,186,854.93 $148,356.87
October 1, 2003 through September 30, 2004 $17.60 $ 1,833,409.60 $152,784.13
October 1, 2004 through September 30, 2005 $18.13 $ 1,888,620.23 $157,385.02
October 1, 2005 through September 30, 2006 $18.67 $ 1,944,872.57 $162,072.71
October 1, 2006 through September 30, 2007 $19.23 $ 2,003,208.33 $166,934.03
October 1, 2007 through September 30, 2008 $19.81 $ 2,063,627.51 $171,968.96
October 1, 2008 through September 30, 2009 $20.41 $ 2,126,130.11 $177,177.51
October 1, 2009 through September 30, 2010 $21.02 $ 2,189,674.42 $182,472.87
October 1, 2010 through September 30, 2011 $21.65 $ 2,255,302.15 $187,941.85
October 1, 2011 through September 30, 2012 $22.30 $ 2,323,013.30 $193,584.44
October 1, 2012 through September 30, 2013 $22.97 $ 2,392,807.87 $199,400.66
October 1, 2013 through September 30, 2014 $23.66 $ 2,464,685.86 $205,390.49
October 1, 2014 through September 30, 2015 $24.37 $ 2,538,647.27 $211,553.94
-------------------------------------------------------------------------------------
Total Fixed Rent $27,210,854.15
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Schedule "D"
Fixed Rent for Entire Landlord's Premises
Demised Premises 172,477 square feet
Annual Total Monthly
Period Rent PSF Rent Rent
-------------------------------------------------------------------------------------
February 1, 2003 through September 30, 2003 $15.22 $ 1,750,066.63 $218,758.33
October 1, 2003 through September 30, 2004 $15.68 $ 2,704,439.36 $225,369.95
October 1, 2004 through September 30, 2005 $16.15 $ 2,785,503.55 $232,125.30
October 1, 2005 through September 30, 2006 $16.63 $ 2,868,292.51 $239,024.38
October 1, 2006 through September 30, 2007 $17.13 $ 2,954,531.01 $246,210.92
October 1, 2007 through September 30, 2008 $17.64 $ 3,042,494.28 $253,541.19
October 1, 2008 through September 30, 2009 $18.17 $ 3,133,907.09 $261,158.92
October 1, 2009 through September 30, 2010 $18.72 $ 3,228,769.44 $269,064.12
October 1, 2010 through September 30, 2011 $19.28 $ 3,325,356.56 $277,113.05
October 1, 2011 through September 30, 2012 $19.86 $ 3,425,393.22 $285,449.44
October 1, 2012 through September 30, 2013 $20.45 $ 3,527,154.65 $293,929.55
October 1, 2013 through September 30, 2014 $21.07 $ 3,634,090.39 $302,840.87
October 1, 2014 through September 30, 2015 $21.70 $ 3,742,750.90 $311,895.91
-------------------------------------------------------------------------------------
Total Fixed Rent $40,122,749.59
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Schedule "E"
Routine Landlord Maintenance
1. Exterior Walls:
Landlord's maintenance to the exterior precast walls shall include the
application of a stain coating approximately one (1) time every five (5) years.
In addition, the exterior brick surfaces shall be coated with a waterproofing
material such as Prime-A-Pel or an equivalent substitute at least one (1) time
every five (5) years. This shall be a common expense and Tenant shall pay its
proportionate share.
2. Dock Seals, Dock Shelters, Loading Doors:
Tenant agrees that it shall procure a maintenance contract for all dock levelors
and loading doors in the Demised Premises at Tenant's sole cost and expense.
3. Parking and Loading Areas:
All paved areas shall be resurfaced approximately once every ten (10) years.
This work shall include the removal and replacement of approximately 2" of fine
aggregate (FABC), hot bituminous concrete, mix I-5 top course. This shall be a
common expense and Tenant shall pay its proportionate share.
4. Roof Areas:
Landlord shall perform annual inspections on the roof.
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Schedule "F"
Tenant's Competitors
IBM
Sema
AT&T
Cable & Wireless
Genuity
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Schedule "G"
CONDITIONAL GUARANTY OF PAYMENT
In consideration of, and as the material inducement for the granting,
execution and delivery of a certain Lease dated as of July , 2002
---
(hereinafter called the "Lease"), by 000 XXXXXXXXXX XXXXXX, L.L.C., having an
address x/x Xxxxx Xxxxxxxxxxx, X.X.X., 00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx
00000, Attention: Xxxxxx Xxxxx (hereinafter called the "Landlord"), to SUNGARD
RECOVERY SERVICES LP, a limited partnership of the Commonwealth of Pennsylvania,
having an address of 0000 Xxxxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxx 00000, Attention:
General Counsel (hereinafter called the "Tenant"), and in further consideration
of the sum of ONE DOLLAR ($1.00) and other good and valuable consideration paid
by the Landlord to the undersigned, the receipt whereof is hereby acknowledged,
the undersigned, (hereinafter called the "Guarantor"), hereby agrees as follows:
1. Guarantor guarantees to the Landlord, its successors and assigns, the
full and prompt payment of all Fixed Rent, Additional Rent (including, without
limitation, charges constituting Additional Rent as a result of non-performance
of Lease obligations by Tenant), and any and all other sums and charges payable
by the Tenant, its successors and assigns, under said Lease, and the Guarantor
hereby covenants and agrees with the Landlord, its successors and assigns, that
if default shall at any time be made by the Tenant, its successors and assigns,
in the payment of any such Fixed Rent or Additional Rent or other sums payable
by the Tenant under said Lease, the Guarantor will, if said default remains
uncured after notice to Tenant and expiration of the applicable cure period
under the Lease and after ten (10) days written notice to Guarantor, forthwith
pay such Fixed Rent, Additional Rent or other sums to the Landlord, its
successors and assigns, and any arrears thereof, and will forthwith pay to the
Landlord all damages recognized under the Lease that may arise in consequence of
any uncured default by the Tenant, its successors and assigns, under said Lease,
including reasonable attorneys' fees incurred by Landlord because of said
default.
Notwithstanding anything to the contrary, this Guaranty is expressly
conditioned upon and shall only be enforceable against the Guarantor only if any
of the following conditions have occurred and only so long as such shall
continue to occur:
(a) Tenant's net worth decreases to less than $50,000,000.00
utilizing Generally Accepted Accounting Principles in the United States ("GAAP")
and the same accounting methodology used for the preparation of Tenant's 2001,
un-audited financial statements dated March 7, 2002, as furnished to Landlord;
or
(b) Tenant's total debt to total equity ratio increases above 2.5
to 1; or
(c) If there is any default by Tenant under Section 14.1(c) of
the Lease which is not subsequently cured.
2. THIS GUARANTY IS AN ABSOLUTE, BUT CONDITIONAL, GUARANTY OF PAYMENT ONLY
AND NOT OF PERFORMANCE. It shall be enforceable against the Guarantor, its
personal representatives, successors and assigns, without the necessity of any
suit or proceedings on the Landlord's part of any kind or nature whatsoever
against the Tenant, its
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successors and assigns, and without the necessity of any notice to Guarantor of
non-payment, which, except as provided herein, the Guarantor hereby expressly
waives, and the Guarantor hereby expressly agrees that the validity of this
Guaranty and the obligations of the Guarantor hereunder shall in no way be
terminated, affected or impaired by reason of the assertion or the failure to
assert by the Landlord against the Tenant, or Tenant's successors and assigns,
of any of the rights or remedies reserved to the Landlord pursuant to the
provisions of the said Lease. Notwithstanding anything to the contrary Guarantor
shall have all of the defenses, right and remedies of Tenant under the Lease.
3. This Guaranty shall be a continuing guaranty until it expires or is
replaced as provided below:
(a) This Guaranty shall terminate in all events on January 31, 2013.
(b) This Guaranty shall terminate prior to January 31, 2013, and shall
be of no further force or affect, upon the occurrence of any of the following
events:
(i) upon the satisfaction of all of the following events and upon
delivery of written proof thereof to Landlord: (A) Tenant is a publicly traded
entity on a United States stock exchange, and (B) Tenant has a net worth
utilizing GAAP equal to or greater than One Billion and 00/100
($1,000,000,000.00) Dollars, and (C) Tenant has an Issuer Credit Rating or
Corporate Credit Rating of at least BBB+ by Standard and Poor's; or
(ii) upon the satisfaction of all of the following events and
upon delivery of written proof thereof to Landlord: (A) Tenant undergoes a
"change of control" (as hereinafter defined); and (B) either the Tenant or the
"New Guarantor" (as hereinafter defined) has at the time of the change of
control or thereafter: (1) a net worth utilizing GAAP equal to or greater than
One Billion and 00/100 ($1,000,000,000.00) Dollars and (2) an Issuer Credit
Rating or Corporate Credit Rating of at least BBB+ by Standard and Poor's. For
purposes hereof, the term "change of control" is defined as a sale of Tenant, a
merger, or a spinoff which results in the Guarantor losing majority ownership of
Tenant. The term "New Guarantor" is defined as the entity or entities which
acquire majority ownership of Tenant and which execute and deliver to Landlord a
Conditional Guaranty of Payment in the same form as this Guaranty (or otherwise
acceptable to Landlord). If the Tenant or a New Guarantor does not have an
Issuer Credit Rating, the Tenant or New Guarantor shall obtain a Corporate
Credit Rating from Standard and Poor's, at their sole cost and expense without
contribution by Landlord to demonstrate that Tenant or New Guarantor satisfy the
conditions precedent set forth above; or
(iii) if prior to January 31, 2008, Tenant or Guarantor (or any
successor thereto) deposits with Landlord an irrevocable letter of credit to
secure Tenant's obligations under the Lease in the form annexed hereto as
Exhibit "A" in the amount of Four Million and 00/100 ($4,000,000.00) Dollars
issued by an institutional lender reasonably acceptable to Landlord, which shall
reduce automatically to Two Million and 00/100 Dollars ($2,000,000.00) on
February 1, 2008, and which shall automatically expire as of January 31, 2013;
or
(iv) if from and/or after February 1, 2008, Tenant or Guarantor
(or any successor thereto) deposits with Landlord an irrevocable letter of
credit to secure Tenant's obligations under the Lease in the form annexed hereto
as Exhibit "A" in the amount of Two
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Million and 00/100 Dollars ($2,000,000.00), and which shall automatically expire
as of January 31, 2013.
4. The liability of the Guarantor hereunder shall in no way be affected,
modified or diminished by reason of any assignment, renewal, modification or
extension of the Lease or any dealings or transactions or matter or thing
occurring between Landlord and Tenant, or any bankruptcy, insolvency,
reorganization, liquidation, arrangement, assignment for the benefit of
creditors, receivership, trusteeship or similar proceeding affecting Tenant,
whether or not notice thereof is given to Guarantor, or by reason of any
dealings or transactions or matter or thing occurring between the Landlord and
the Tenant, its successors or assigns, whether or not notice thereof is given to
the Guarantor.
5. Until all the covenants and conditions in said Lease on Tenant's part to
be performed and observed are fully performed and observed, Guarantor hereby
subordinates to Landlord's interests hereunder and under the Lease: (a) any
right of subrogation against Tenant by reason of any payments or acts of
performance by the Guarantor, in compliance with the obligations of the
Guarantor hereunder; (b) any right to enforce any remedy which Guarantor now or
hereafter shall have against Tenant by reason of any one or more payments or
acts of performance in compliance with the obligations of Guarantor hereunder;
and (c) any liability or indebtedness of Tenant now or hereafter held by
Guarantor to the obligations of Tenant to the Landlord under said Lease. During
the period of a continuing "Event of Default" under the Lease, Guarantor shall
not accept repayment of any loan owed by Tenant to Guarantor, or its affiliates,
but shall require that Tenant first apply all such repayments to the payment of
all Fixed Rent and Additional Rent, and all sums necessary to cure any event of
default on the part of Tenant under the Lease; otherwise, payments may be made
in the ordinary course between Tenant and Guarantor.
6. All of the Landlord's rights and remedies under the said Lease or under
this Guaranty are intended to be distinct, separate and cumulative and no such
right and remedy therein or herein contained is to be in exclusion of or a
waiver of any of the others.
7. No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty or failure to exercise the same shall operate as a
waiver of, or otherwise affect any such right, power or privilege, nor shall any
single or partial exercise thereof preclude any other or further exercise of any
right, power or privilege.
8. No waiver or modification of any provision of this Guaranty shall be
effective unless in writing and signed by Landlord and Guarantor.
9. The Guarantor irrevocably consents to jurisdiction and venue of any
cause of action arising under or relating to the said Lease and/or this Guaranty
solely and exclusively in the state or federal courts of New Jersey. The
Guarantor hereby irrevocably consents and agrees to transfer of any such action
pending in any other jurisdiction to the state or federal courts in New Jersey.
The Guarantor agrees that service of process by certified mail return receipt
requested to the address set forth on page 1 above shall be sufficient to obtain
in personam jurisdiction over the Guaranty in any action instituted pursuant to
the Lease and/or this Guaranty.
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10. Except as provided in the prior paragraph, any notices provided
hereunder shall be sent by a nationally recognized overnight delivery service
(e.g., Federal Express), postage prepaid, for next business day delivery, to the
appropriate address set forth on page 1 above.
11. This Agreement is entered into in the State of New Jersey and shall be
governed and construed according to the laws of the State of New Jersey.
IN WITNESS WHEREOF, the Guarantor has hereunto set its hand and seal this
day of July, 2002.
-----
SUNGARD DATA SYSTEMS INC.,
a Delaware corporation
By:
------------------------------- --------------------------------------
Name:
Title:
STATE OF PENNSYLVANIA )
)ss.
COUNTY OF XXXXXXX )
On this day of July, 2002, before me personally came
----------
, to me known, who being by me duly sworn, did depose and
-----------------------
say that he is the of SunGard Data Systems Inc., a Delaware
------------------
corporation, and that he was authorized to execute and executed the foregoing
instrument on behalf of and as the act and deed of said corporation.
-----------------------------------------
Notary Public
My Commission Expires:
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Schedule "H"
Legal Description of Land
-67-
Schedule "I"
Diagram Of Typical Hitching Post
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