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LEASE AGREEMENT
BETWEEN
SHAV ASSOCIATES
AS LANDLORD
-AND-
GLOBESPAN, INC.
AS TENANT
PREMISES: Entire Building
000 Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxxxx 00000
DATED: March 20, 2001
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INDEX
ARTICLE CAPTION PAGE
------- ------- ----
1 Demised Premises, Term, Rent................................... 1
2 Use............................................................ 3
3 Preparation of the Demised Premises............................ 4
4 When Demised Premises Ready for Occupancy...................... 5
5A Taxes.......................................................... 5
5B Operating Expenses, Costs, Building Services and Maintenance
Responsibilities............................................... 6
6 Subordination, Notice to Lessors and Mortgagees................ 10
7 Quiet Enjoyment................................................ 11
8 Assignment, Mortgaging, Subletting............................. 11
9 Compliance with Laws and Requirements of Public Authorities.... 13
10 Insurance...................................................... 14
11 Rules and Regulations.......................................... 16
12 Tenant's Changes............................................... 17
13 Tenant's Property.............................................. 19
14 Repairs and Maintenance........................................ 20
15 Electricity.................................................... 20
16 Heating, Ventilation and Air-Conditioning...................... 21
17 Landlord's Other Services; Facilities Management............... 21
18 Access, Changes in Building Facilities, Name................... 22
19 Notices of Accidents........................................... 23
20 Non-Liability and Indemnification.............................. 24
(i)
ARTICLE CAPTION PAGE
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21 Destruction or Damage...........................................25
22 Eminent Domain..................................................27
23 Surrender.......................................................28
24 Conditions of Limitation........................................28
25 Re-Entry by Landlord............................................30
26 Damages.........................................................31
27 Waivers.........................................................32
28 No Other Waivers or Modifications...............................33
29 Curing Tenant's Defaults........................................34
30 Broker..........................................................34
31 Notices.........................................................34
32 Estoppel Certificate............................................35
33 Arbitration.....................................................35
34 No Other Representations, Construction, Governing Law...........36
35 Security........................................................37
36 Parties Bound...................................................38
37 Consents........................................................38
38 Mortgage Financing - Tenant Cooperation.........................39
39 Environmental Compliance........................................40
40 Holding Over....................................................41
41 Certain Definitions & Constructions.............................39
(ii)
ARTICLE CAPTION PAGE
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42 Option to Renew. . . . . . . . . . . . . . . . . . . . . . . . .42
43 Satellite Dish. . . . . . . . . . . . . . . . . . . . . . . . . 42
EXHIBIT A - Description of Land
EXHIBIT B - Floor Plan
EXHIBIT C - Separate Workletter
EXHIBIT C-1 - Paradyne/AT&T/Landlord Restoration Items
EXHIBIT D - Schedule of Targeted Commencement Dates
EXHIBIT E - Rules and Regulations
EXHIBIT F - Definitions
EXHIBIT G - Budget for Section 5.06 Operating Expenses
EXHIBIT H - Parking Plan
EXHIBIT I - Subordination , Non Disturbance Agreement
EXHIBIT J - Schedule of Approved Facilities Managers
(iii)
LEASE, dated March 20, 2001, between SHAV ASSOCIATES, a New Jersey
partnership, c/o Alfieri Property Management, having its principal office
located at 000 Xxxxxxxx Xxxxxx, P.O. Box 2911, Edison, New Jersey 08818-2911,
("Landlord"), and GLOBESPAN, INC. having its principal office located at 000
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxxxx 00000 ("Tenant").
WITNESSETH:
ARTICLE 1
DEMISED PREMISES, TERM, RENT
1.01. Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the premises hereinafter described, in the building located at 000
Xxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxxxx ("Building") on the parcel of land more
particularly described in Exhibit A ("Land"), for the term hereinafter stated,
for the rents hereinafter reserved and upon and subject to the conditions
(including limitations, restrictions and reservations) and covenants hereinafter
provided. Each party hereby expressly covenants and agrees to observe and
perform all of the conditions and covenants herein contained on its part to be
observed and performed.
1.02. The premises hereby leased to Tenant is the entire Building, as
shown on the floor plans annexed hereto as Exhibit B. In addition, Tenant shall
have the right to use parking spaces as more particularly described in Section
17.01, below. Landlord and Tenant have mutually agreed that the premises leased
has a rentable area of 100,000 square feet. Said premises, together with all
fixtures and equipment which at the commencement, or during the term of this
Lease are thereto attached (except items not deemed to be included therein and
removable by Tenant as provided in Article 13) constitute the "Demised
Premises".
1.03. The term of this Lease, for which the Demised Premises are
hereby leased, shall commence on the date when (a) this Lease has been fully
executed by Landlord and Tenant; and (b) an executed counterpart hereof has been
received by both Landlord and Tenant; and (c) the condition set forth in Section
1.07 has been satisfied ("Commencement Date"). The "Rent Commencement Date" for
any floor in the Building shall be the day on which such floor of the Demised
Premises is ready for occupancy (as defined in Article 4) subject to Section
1.04 (d) which shall govern. The term of this Lease shall end at noon on the
last day of the calendar month in which occurs the day preceding the 10th
anniversary of the Rent Commencement Date for the last floor of the Building but
in no event later than July 31, 2011, which ending date is hereinafter called
the "Expiration Date", or shall end on such earlier date upon which said term
may expire or be canceled or terminated pursuant to any of the conditions or
covenants of this Lease or pursuant to law. Promptly following the Rent
Commencement Date, the Landlord shall notify Tenant in writing of the Rent
Commencement Date and the Expiration Date as determined in accordance with this
Section.
1.04. The rents reserved under this Lease, for the term thereof, shall
be and consist of:
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(a) Fixed rent of $1,850,000.00 for years 1 through 5,
(calculated on the basis of $18.50/sq. ft. for 100,000 sq. ft. of rentable area)
which shall be payable in equal monthly installments of $154,166.67 and fixed
rent of $2,225,000.00 for years 6 through 10, (calculated on the basis of
$22.25/sq. ft. for 100,000 sq. ft. of rentable area) which shall be payable in
equal monthly installments of $185,416.67 in advance on the first day of each
and every calendar month during the term of this Lease, and
(b) Additional rent consisting of all such other sums of money as
shall become due from and payable by Tenant to Landlord hereunder (for default
in payment of which Landlord shall have the same remedies as for a default in
payment of fixed rent), all to be paid to Landlord at its office, or such other
place, or to such agent at such place, as Landlord may designate by notice to
Tenant, in lawful money of the United States of America.
(c) The fixed rent and additional rent described in (a) and (b)
shall start and be payable as of the Rent Commencement Date for the particular
floor of the Building. During the period between the Commencement Date and the
Rent Commencement Date, Tenant shall pay to Landlord a fixed monthly rental of
$159,701.23, in advance, which amount shall be appropriately prorated for the
partial months, if any, in which the Commencement and Rent Commencement Date for
a particular floor of the Building occurs and on a floor by floor basis as each
applicable Rent Commencement Date occurs..
(d) Notwithstanding anything to the contrary, and notwithstanding
the fact that the Rent Commencement Date may vary for different floors it is
agreed that the rent schedule set forth in 1.04(a) above and the 10 year term
shall commence as to the entire Demised Premises on the earlier of the Rent
Commencement Date for the last completed floor of the Building or August 1,
2001. Any floor not completed by August 1, 2001 shall be completed by Landlord
thereafter in accordance with this Lease if requested by Tenant in accordance
with this Lease. Notwithstanding that the Rent Commencement Date shall have
already been established for such floor, it is the intention hereof that
Landlord shall complete the floors in accordance with this Lease after August 1,
2001.
1.05. Tenant shall pay the fixed rent and additional rent herein
reserved promptly as and when the same shall become due and payable, without
demand therefor and without any abatement, deduction or setoff whatsoever,
except as specifically set forth in this Lease.
1.06. Late payments of any payment of rent, including monthly rent or
any portion thereof, which is not received within five (5) days after it is due,
will be subject to a late charge equal to four percent (4%) of the unpaid
payment, or $100.00, whichever is greater. This amount is in compensation of
Landlord's additional cost of processing late payments. In addition, any rent
which is not paid when due, including monthly rent, will accrue interest at a
late rate charge of First Union Prime Rate plus three percent (3%) per annum, as
said rate is reasonably determined by Landlord from published reports, (but in
no event in an amount in excess of the maximum rate allowed by applicable law)
from the date on which it was due until the date on which it is paid in full
with accrued interest. If Tenant is in default of the Lease for failure to pay
rent, in addition to the late charges and interest set forth above, Tenant shall
be charged with all reasonable attorney fees in connection with the collection
of all sums due Landlord. Notwithstanding the foregoing, Landlord agrees that in
every twelve (12) month period calculated from the Commencement Date, Tenant
shall be entitled to one instance of late payment in which it shall not incur a
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late charge or interest provided it makes payment as required within five (5)
business days of written notice from Landlord.
1.07. Performance by Landlord and Tenant under this Lease is
conditioned upon and subject to the execution of agreements satisfactory to
Landlord providing for the termination and surrender of the existing leases of
the Demised Premises with A.T & T. and Paradyne within ten (10) days from the
date hereof. If the foregoing condition is not satisfied within ten (10) days
from the date hereof, either party may cancel this Lease upon notice to the
other.
1.08. As part of the process of finalizing the construction drawings
for Landlord's Work as defined in Section 3.01, Landlord and Tenant have
established a mutually acceptable schedule of projected dates by which each of
the floors of the Building shall be ready for occupancy within the meaning of
Article 4 of this Lease (the "Targeted Commencement Dates") which schedule is
attached hereto as Exhibit D. Landlord shall use commercially diligent efforts
to deliver to Tenant the Demised Premises ready for occupancy by such Targeted
Commencement Dates.
1.09. From and after August 1, 2002, Tenant shall be entitled to an
abatement of fixed rent equal to the lesser of $700,000 or, if by that time all
floors have been completed, the difference between $1,700,000 and the actual
expenditures under the work letter allowance described in Exhibit C. If by
August 1, 2002 all floors are completed and the aforesaid difference is greater
that $700,000 it is agreed that the rent abatement shall be limited to $700,000.
If by August 1, 2002 all floors have not been completed, then, at Tenant's
request and pursuant to the terms of this Lease Landlord shall complete the
floors but Landlord's work letter allowance shall be deemed reduced by $700,000,
or such portion thereof actually applied to the abatement of rent permitted
hereunder, in addition to and on top of the reductions occasioned by Landlord's
actual expenditures towards completion of the floors. If the final cost of
completion of all floors exceeds the reduced work letter allowance, Tenant shall
pay to Landlord the excess cost.
ARTICLE 2
USE
2.01. Tenant shall use and occupy the Demised Premises for executive
and general offices, sales (but not retail sales), research and dry laboratory
work for the transaction of Tenant's business and for no other purpose, all in
accordance with applicable law.
2.02. The use of the Demised Premises for the purposes specified in
Section 2.01 shall not include, and Tenant shall not use or permit the use of
the Demised Premises or any part thereof, for:
(a) A school of any kind other than for the training of Tenant's
employees;
(b) An employment agency; or
(c) An office for any governmental or quasi governmental bureau,
department, agency, foreign or domestic, including any autonomous governmental
corporation or diplomatic or trade mission.
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(d) Any telemarketing activities or other direct selling
activities; or
(e) Any use, including executive and general office use, which
results in a density of a population of more than one person for every 200
square feet.
2.03. If any governmental license or permit, other than a Certificate
of Occupancy, shall be required for the proper and lawful conduct of Tenant's
business in the Demised Premises, or any part thereof, and if failure to secure
such license or permit would in any way affect Landlord, Tenant, at its expense,
shall submit the same to inspection by Landlord. Tenant shall at all times
comply with the terms and conditions of each such license or permit.
2.04. Tenant shall not at any time use or occupy, or do or permit
anything to be done in the Demised Premises, in violation of the Certificate of
Occupancy (or other similar municipal ordinance) governing the use and
occupation of the Demised Premises.
ARTICLE 3
PREPARATION OF THE DEMISED PREMISES
3.01. The Demised Premises shall be completed and prepared for
Tenant's occupancy in the manner, and subject to the terms, conditions and
covenants, set forth in Exhibit C. The facilities, materials, and work so to be
furnished, installed, and performed in the Demised Premises by Landlord at its
expense are hereinafter and in Exhibit C referred to as "Landlord's Work". Such
other installations, materials, and work which may be undertaken by or for the
account of Tenant to equip, decorate, and furnish the Demised Premises for
Tenant's occupancy, commonly called finishing trades work, are hereinafter and
in Exhibit C called "Tenant's Finish Work". After review and completion of the
final construction drawings, but prior to commencement of the construction
and/or installation of the same, Landlord reserves the right to notify Tenant of
any restoration of non-building standard items that Tenant shall be responsible
for upon the termination of this Lease and Tenant may then elect not to have the
same installed in the Demised Premises. In any event, Tenant shall prior to the
termination of this Lease remove from the Demised Premises all equipment in
existence as of the date hereof comprising Tenant's Voice, Data and Security
Systems, including associated outlets, wires, wiring trays and other equipment,
materials and facilities, whether located in the ceiling, floor and/or walls
which in any way relates, pertains to, constitutes or is connected with Tenant's
Voice, Data and/or Security Systems and regardless of whether Landlord or Tenant
installed and/or paid for the installation of such systems or whether it was
previously installed. Exhibit C-1 sets forth a schedule of the restoration items
required under the prior leases of the Building with AT&T and Paradyne
Corporation. It is expressly agreed and understood that the Tenant shall not
have any responsibility for restoration of the items described in Exhibit C-1 or
any other restoration except as specifically set forth in this Article 3 or in
Article 12. Equipment already in existence as of the date hereof shall be deemed
to comprise Tenant's Voice, Data and Security Systems if and only to the extent
Tenant uses such equipment from and after the date hereof.
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ARTICLE 4
WHEN DEMISED PREMISES READY FOR OCCUPANCY
4.01. The Demised Premises shall be deemed ready for occupancy on a
floor by floor basis on the earliest date on which all of the following
conditions have been met:
(a) A Certificate of Occupancy (temporary or final) has been
issued by the applicable governmental authorities for the particular floor of
the Building following substantial completion of Landlord's Work therein,
providing such substantial completion is sufficient to permit Tenant's use
without condition pursuant to Article 2 of the entire particular floor of the
Demised Premises for the purposes for which the same have been leased.
(b) All Landlord's Work, and so much of Tenant's Finish Work as
Landlord shall have undertaken in accordance with Exhibit C or by separate
letter agreement, for the subject floor in the Demised Premises have been
substantially completed, and same shall be so deemed notwithstanding the fact
that minor or insubstantial details of construction, mechanical adjustment, or
decoration or special Finish Work requested by Tenant, such as cabinetry remain
to be performed, the non-completion of which does not materially interfere with
Tenant's use of the entire subject floor of the Demised Premises for the
operation of Tenant's business therein.
(c) Reasonable means of access and facilities necessary to
Tenant's use and occupancy of the Demised Premises, including access to and from
all adjacent public roadways, all parking facilities and all entrances to the
Building, delivery areas, parking lot, corridors, elevators and stairways, and
heating ventilating, air conditioning, sanitary, water, and electrical
facilities, have been installed and are in good operating order and available to
Tenant.
4.02. If making the Demised Premises or any floor thereof, ready for
occupancy shall be delayed by any act or omission of Tenant or any of its
employees, agents or contractors or any failure (not due to any act or omission
of Landlord or any of its employees, agents or contractors) to plan or execute
Tenant's Finish Work diligently or by reason of Tenant's failure to submit
Tenant's plans and specifications in the manner set forth in this Lease, the
Demised Premises or any particular floor or floors affected by the delay, act or
omission shall be deemed ready for occupancy on the date when they would have
been ready but for such delay.
4.03. If and when Tenant shall take actual possession of the Demised
Premises, it shall be conclusively presumed that the same were in satisfactory
condition (except for latent defects) as of the date of such taking of
possession, unless within one hundred eighty (180) days after the Rent
Commencement Date Tenant shall give Landlord notice specifying the respects in
which the Demised Premises were not in satisfactory condition, and Landlord
shall at Landlord's expense promptly correct any and all such matters.
ARTICLE 5A
TAXES
5.01. For the purpose of this Article 5A, "Taxes" shall mean real
estate taxes, special and extraordinary assessments and governmental levies
5
against the Land and Building, provided, however, if at any time during the term
of this Lease the method of taxation prevailing at the date of this Lease shall
be altered so that in lieu of, or as an addition to, or as a substitute for any
or all of the above there shall be assessed, levied or imposed (i) a tax,
assessment, levy, imposition or charge based on the income or rents received
therefrom whether or not wholly or partially as a capital levy or otherwise; or
(ii) a tax, assessment, levy, imposition or charge measured by or based in whole
or in part upon all or any part of the Land and/or Demised Premises and imposed
upon Landlord; or (iii) a license fee measured by the rents; or (iv) any other
tax, assessment, levy, imposition, charge or license fee however described or
imposed, then all such taxes, assessments, levies, impositions, charges or
license fees or the part thereof so measured or based shall be included in the
definition of "Taxes."
5.02. During the term of this Lease Tenant shall pay all Taxes
directly to the governmental authority imposing the same and shall promptly
furnish Landlord with reasonably satisfactory evidence of the payment thereof;
however, its failure to furnish such evidence shall not constitute a default
hereunder. In the event Tenant fails to pay Taxes in a timely manner, Landlord
shall have the right to do so on Tenant's behalf. Such expenditures by Landlord
shall be deemed to be additional rent, payable by Tenant on demand.
5.02.1. Taxes shall not include any assessments or levies on any
additional buildings constructed on the Land or, any enlargement of the
Building.
5.02.2. Landlord represents that the Land and Building are separately
assessed by the Taxing Authority of the Township of Middletown and designated as
Block 1086 Lot 30 and that a separate tax xxxx has been issued therefor.
ARTICLE 5B
OPERATING COSTS, BUILDING SERVICES AND MAINTENANCE RESPONSIBILITIES
5.03. Tenant shall be solely responsible for the payment of all
Operating Expenses during the term of this Lease.
5.04. For the purposes of this Article 5B, "Operating Expenses" shall
mean any or all expenses incurred in connection with the operation of the Land
and Demised Premises, including all expenses incurred as a result of Landlord's
compliance with any of its obligations hereunder other than Landlord's Work and
other than those, if any, which are expressly stated to be at the sole cost and
expense of Landlord and/or which do not relate to the care and maintenance of
the common areas and/or the Land and Demised Premises. Such expenses shall
include: (i) the cost for the Demised Premises and common areas of all charges
for oil, gas, electricity (including, but not limited to, fuel cost
adjustments), steam, heat, ventilation, air-conditioning, heating, and water
including any taxes on any such utilities; (ii) the cost of all premiums and
charges for the following insurances: rent, casualty, liability, fidelity and
war risk (if obtainable from the United States Government); (iii) the cost of
all building and cleaning supplies for the Demised Premises and charges for
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telephone for the Demised Premises; (iv) the cost of all charges for management,
window cleaning, security services, if any, and janitorial services, and any
independent contractor performing work included within the definition of
Operating Expenses; (v) legal and accounting services and other professional
fees and disbursements incurred in connection with the operation and management
of the Land and Demised Premises (other than as related to new leases, enforcing
Landlord's rights under existing leases, or sale of the Demised Premises); (vi)
general maintenance of the Demised Premises and the cost of maintaining and
replacing the landscaping; (vii) maintenance of the common areas; and (viii) the
cost of capital expenditures, including the purchase of any item of capital
equipment amortized over ten years or the leasing of capital equipment which
have the actual effect of reducing the expenses which would otherwise be
included in Operating Expenses. The term "common areas" shall mean the drives,
paths, walkways, green areas, parking areas, and other common amenities that
service the Building and the other buildings at Tri-Park Corporate Park.
Tenant's share of Operating Expenses for common areas shall be limited to
36.37%. Landlord and Tenant mutually acknowledge and confirm that Landlord,
Tenant, and all other tenants of Tri-Park Corporate Park, their agents employees
and invitees shall have a nonexclusive right, in common with each other to use
and enjoy the common areas, subject to Landlord's rules and regulations.
Notwithstanding the foregoing, the following costs and
expenses shall not be included in Operating Expenses:
(1) Landlord's Executives' salaries above the grade of
building manager;
(2) Cost of repairs or replacements incurred by reason of
fire or other casualty or condemnation;
(3) Advertising and promotional expenditures;
(4) Depreciation, except as provided above;
(5) Brokerage commissions;
(6) Taxes (as hereinbefore defined);
(7) Refinancing costs and mortgage interest, amortization
payments or other financing costs secured by the Land
and/or Demised Premises;
(8) Rental under any ground or underlying lease or leases;
(9) Any expenditures for which Landlord has been or will be
reimbursed, including insurance and condemnation
proceeds, service contracts and warranties;
(10) Amounts paid to Landlord or affiliates of Landlord
materially in excess of the market value of the goods
and services rendered;
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(11) Expenses for repairs or the work occasioned by
condemnation or by a casualty;
(12) Taxes imposed upon Landlord by reason of its ownership
of the Land and/or Demised Premises, except for "Taxes"
which are payable by Tenant pursuant to Article 5A; and
(13) All costs of a capital nature, other than those
expressly provided for in this Lease.
(14) Any cost or expense, including but not limited to
operating expenses applicable solely to any other
building or tenant in the Tri-Park Corporate Park.
5.05. During the term of this Lease, except as provided in Section
5.06, below, Tenant shall be solely responsible for maintaining and operating
the Demised Premises and all parts thereof and furnishing all building services
thereto in the manner of a first class office building, and paying the Operating
Expenses incurred in connection therewith, including but not limited to the
elevators, janitorial service, cleaning and supplies, utilities,
decorating/plant care, exterminating, security, signage, glass replacement, fire
protection and monitoring. As used in this Lease, maintenance and operation of
the Demised Premises as a "first class office building" shall mean that the
Demised Premises shall be operated and maintained at a first class office
building level of service which is no less than that existing at the Demised
Premises as of January 1, 2001.
5.06. Notwithstanding Section 5.05, Landlord shall be responsible for
performing the following at the Demised Premises and Land in the manner of a
first class office building:
(a) Water treatment for the HVAC system;
(b) Garbage Disposal from the dumpster container;
(c) Snow Removal;
(d) Telephone
(i) one general line;
(ii) HVAC alarm;
(iii) fire panel;
(e) Landscaping;
(f) Demised Premises and supplemental HVAC Labor;
(g) Maintenance, materials and contracts for the Building and
supplemental HVAC systems;
(h) Maintenance - Landscaping replacements;
(i) Parking lot maintenance;
(i) Sweeping;
(ii) Striping;
(iii) Repairs;
(iv) Lighting;
(j) Placement of all insurance coverages;
(k) Roof maintenance and repair;
(l) Electrical work which requires additional electric panels,
transformers, or electric work which is related to existing
or new HVAC; and
(m) Management of the foregoing items.
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5.07. The estimated Operating Expenses associated with the items
described in Section 5.06 (the "5.06 Operating Expenses") are the subject of an
annual budget attached hereto as Exhibit G. In addition to the budget amounts
set forth in Exhibit G, and subject to Section 5.11, Tenant shall pay to
Landlord an annual management fee of $37,500.00 for the first five years of the
term of this Lease and an annual management fee of $45,000.00 for the balance of
the initial term of this Lease. On the first day of each month during the term
of this Lease Tenant shall pay to Landlord as additional rent one twelfth of the
then current budget for the 5.06 Operating Expenses; it being understood and
agreed that the budget may be revised on an annual basis in order to reflect the
5.06 Operating Expenses actually incurred by Landlord. Within one hundred twenty
(120) days after the expiration of the first calendar year of the term, and
within one hundred twenty (120) days after the expiration of each subsequent
calendar year thereafter (each such year being hereinafter referred to as an
"Operational Year"), Landlord shall furnish to Tenant a written detailed
statement of the 5.06 Operating Expenses (certified to be true and correct by
Landlord) incurred for such prior Operational Year. If the statement furnished
by Landlord to Tenant, pursuant to this Section, at the end of the then
Operational Year shall indicate that Tenant overpaid the 5.06 Operating Expenses
for the preceding Operational Year, Landlord shall either forthwith pay the
amount of excess directly to Tenant concurrently with the statement or credit
same against Tenant's next monthly installment of rent. If such statement
furnished by Landlord to Tenant hereunder shall indicate that Tenant underpaid
the 5.06 Operating Expenses for the preceding Operational Year, then Tenant
shall within thirty (30) days pay the amount of the deficiency to Landlord. If
the term of this Lease involves less than a full calendar year, then appropriate
adjustments shall be made.
5.08. Every statement given by Landlord pursuant to Sections 5.07
shall be conclusive and binding upon Tenant unless (i) within one hundred eighty
(180) days after the receipt of such statement Tenant shall notify Landlord that
it disputes the correctness of the statement, specifying the particular respects
in which the statement is claimed to be incorrect; and (ii) if such dispute
shall not have been settled by agreement, shall submit the dispute to judicial
proceedings within one hundred eighty (180) days after receipt of the statement.
Within such 180 day period Tenant shall have the right to review, examine and
audit Landlord's books and records for the applicable Operational Year. Tenant
agrees that it and its representatives shall conduct a review with complete
confidentiality and shall enter into a reasonable confidentiality agreement with
Landlord respecting the review, examination and audit. Pending the determination
of such dispute by agreement or judicial proceedings as aforesaid, Tenant shall,
within thirty (30) days after receipt of such statement, pay additional rent in
accordance with Landlord's statement and such payment shall be without prejudice
to Tenant's position. If the dispute shall be determined in Tenant's favor,
Landlord shall forthwith pay Tenant the amount of Tenant's overpayment of
additional rents resulting from compliance with Landlord's statement. If as a
result of a dispute it is determined that Landlord's statements of 5.06
Operating Expenses are incorrect by greater than 5%, then Landlord shall
reimburse Tenant for Tenant's reasonable costs for payment of an auditor or
accountant. Each party shall bear all their costs for their own professionals.
5.09. Landlord at Landlord's sole cost and expense shall repair the
Building roof membrane when necessary and the replace the same as necessary, and
shall keep the Demised Premises free and clear of roof leaks. If Landlord shall
fail to make all such repairs as are herein required, Tenant may proceed
pursuant to the terms and conditions of Section 26.04, below.
5.10. Nothing contained in this Article 5 shall permit Landlord to
duplicate an invoicing of Tenant for the same service.
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5.11. Landlord and Tenant agree that this Section 5.11 shall govern
all provisions of this Lease, including other provisions of this Article 5, with
respect to the financial obligations for the cost of maintenance of the Land,
without regard to whether it is the Landlord or the Tenant which performs the
maintenance of common areas as determined by other sections of this Lease. If
the nature of the maintenance, repairs or improvement is required or designed
only to serve the Land and the Demised Premises and not any of the real property
premises known as 000 Xxxxxx Xxxxx, or 000 Xxxx Xxxx Xxxx, then the financial
cost thereof shall be borne by Tenant. If the nature of the maintenance,
repairs, or improvements is required or designed to serve the land or common
areas of any other of the aforesaid real property premises, including the Land,
then Tenant's financial obligation therefore is limited to 36.37% if the costs.
It is agreed the landscaping, snow removal, and trash removal are examples of
"common expenses" for which Tenant's financial responsibility is limited to
36.37%. Landlord and Tenant shall mutually cooperate in connection with the
determination of the allocations.
5.12. Landlord shall operate, maintain, insure and repair the common
areas in the manner of a first class office building.
ARTICLE 6
SUBORDINATION, NOTICE TO LESSORS AND MORTGAGEES
6.01. Subject to the conditions of Section 6.02 below, this Lease, and
all rights of Tenant hereunder are and shall be subject and subordinate in all
respects to all mortgages which may now or hereafter affect the Land and/or the
Demised Premises and/or this Lease, whether or not such mortgages shall also
cover other lands and/or buildings, to each and every advance made or hereafter
to be made under such mortgages, and to all renewals, modifications,
replacements, and extensions of such mortgages and spreaders and consolidations
of such mortgages. In confirmation of such subordination, Tenant shall promptly
execute and deliver an instrument that Landlord, or the holder of any such
mortgage or any of their respective successors in interest may reasonably
request to evidence such subordination provided such document shall contain
appropriate language of non- disturbance. The mortgages to which this Lease is,
at the time referred to, subject and subordinate are hereinafter sometimes
called "superior mortgages", and the holder of a superior mortgage or its
successor in interest at the time referred to is sometimes hereinafter called a
"superior mortgagee." Within forty-five (45) days from the date hereof, Landlord
shall obtain from the existing mortgagee a Subordination, Non-Disturbance and
Attornment Agreement in favor of Tenant utilizing the existing mortgagee's
standard form. Landlord shall assist Tenant in facilitating any changes to the
mortgagee's standard form that Tenant may request; however, Landlord shall have
fully discharged its obligation under this Section 6.01 by delivering to Tenant
such standard form within said forty- five (45) days. If Landlord fails to so
provide such Agreement as herein described, then on ten (10) days written
notice. Tenant shall be entitled to terminate this Lease unless Landlord
delivers such Agreement within the ten (10) day period.
6.02. In the event the Land or Demised Premises is encumbered by a
mortgage lien in the future, as a condition of Tenant's subordination thereto,
Landlord shall obtain from such future mortgagee the Non-Disturbance Agreement
in favor of Tenant utilizing such mortgagee's standard and customary form;
provided, however, such Non-Disturbance Agreement must (a) contain an
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acknowledgment and consent by the mortgagee to the terms and conditions of this
Lease, and (b) must provide that so long as Tenant is not in default of its
obligations under this Lease, then Tenant's use and enjoyment of the Demised
Premises shall not be disturbed and that Tenant will not be named in or joined
in any action or proceeding to foreclose any such mortgage. If such
Non-Disturbance Agreement contains usual and customary institutional lender and
tenant provisions and further provides for a reasonable opportunity for the
mortgagee to cure any Landlord defaults and other reasonable lender
requirements, then such Non-Disturbance Agreement shall be deemed in conformance
with the provisions hereof. If Tenant fails to reasonably accept such
Non-Disturbance Agreement, it shall be considered that Landlord has satisfied
any requirement respecting the applicable future mortgagee and this Lease shall
be subordinate to the lien of the Mortgage. If Landlord is unable to obtain from
the Lender the Non-Disturbance Agreement as described in this Section 6.02, then
this Lease shall not be deemed subordinate to the lien of such future mortgagee.
Landlord shall facilitate the communication of requested changes to any form
from Tenant to the future mortgagee so as to ensure that Tenant's changes and
comments are made known to the future mortgagee.
ARTICLE 7
QUIET ENJOYMENT
7.01. So long as Tenant pays all of the fixed rent and additional rent
due hereunder and performs all of Tenant's other obligations hereunder, Tenant
shall peaceably and quietly have, hold, and enjoy the Demised Premises subject,
nevertheless, to the obligations of this Lease and, as provided in Article 6, to
the superior mortgages.
ARTICLE 8
ASSIGNMENT, MORTGAGING, SUBLETTING
8.01. Neither this Lease, nor the term and estate hereby granted, nor
any part hereof or thereof, nor the interest of Tenant in any sublease, or the
rentals thereunder, shall be assigned, mortgaged, pledged, encumbered or
otherwise transferred by Tenant, and neither the Demised Premises, nor any part
thereof shall be encumbered in any manner by reason of any act or omission on
the part of Tenant or anyone claiming under or through Tenant or shall be
sublet, or offered or advertised for subletting, or be used or occupied or
permitted to be used or occupied, or utilized for desk space or for mailing
privileges, by anyone other than Tenant or for any purpose other than as
permitted by this Lease, without the prior written consent of Landlord in every
case, except as expressly otherwise provided in this Article.
8.02. If this Lease be assigned, whether or not in violation of the
provisions of this Lease, Landlord may collect rent from the assignee. If the
Demised Premises or any part thereof be sublet or be used or occupied by anybody
other than Tenant, whether or not in violation of this Lease, Landlord may,
after default by Tenant and expiration of Tenant's time to cure such default,
collect rent from the undertenant or occupant. In either event, Landlord may
apply the net amount collected to the rents herein reserved, but no such
assignment, underletting, occupancy or collection shall be deemed a waiver of
any of the provisions of Section 8.01, or the acceptance of the assignee,
undertenant or occupants as Tenant, or a release of Tenant from the further
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performance by Tenant of Tenant's obligations under this Lease. The consent by
Landlord to assignment, mortgaging, underletting or use or occupancy by others
shall not in any way be considered to relieve Tenant from obtaining the express
written consent of Landlord to any other or further assignment, mortgaging or
underletting or use or occupancy by others not expressly permitted by this
Article.
8.03. The following provisions shall govern in connection with the
subletting of all or a portion of the Demised Premises:
(a) Tenant shall submit in writing to Landlord (i) the name of
the proposed subtenant; (ii) the nature and character of the proposed
subtenant's business, and the intended use to be made of the Demised Premises by
the proposed subtenant; (iii) the terms and conditions of the proposed sublease;
and (iv) such reasonable financial information as Landlord may request regarding
the proposed subtenant.
(b) Within thirty (30) days of Landlord's receipt of the
information described in (a) above, Landlord, at Landlord's election may (i)
elect to sublease the Demised Premises directly from Tenant either upon (x) the
same terms and conditions offered to the proposed subtenant or, (y) upon the
same terms and conditions as set forth in this Lease; or (ii) cancel this Lease
as to that portion of the Demised Premises which Tenant desires to sublease, in
which event Tenant agrees to surrender all of its right, title, and interest
hereunder (in which event Tenant shall be relieved of all further responsibility
in connection therewith) and Landlord may thereafter enter into a direct Lease
with the proposed subtenant or with any other persons as Landlord may desire,
provided that Landlord at its sole cost and expense shall install any required
demising wall between the Demised Premises and such recaptured space. All of the
terms and conditions of this Lease, including but not limited to the rent shall
be modified to reflect such change; or (iii) consent to the subletting subject
to Landlord's participation in any rentals received by Tenant, which shall not
exceed 50% of the net rentals received by Tenant after payment of all sums
directly associated with such sublease including, but not limited to, brokerage
fees and improvement allowances and after payment of all sums of fixed rent and
additional rent due to Landlord hereunder. Notwithstanding the foregoing,
Landlord's right of recapture set forth in (i) and (ii) of this subparagraph (b)
shall be inapplicable to Tenant's subletting of not more than 50% of the Demised
Premises for a term or terms of no more than five (5) years in one or more
transactions. The immediately preceding sentence shall not be applicable to the
Renewal Period described in Section 42.01, nor shall it relate to the provisions
of Section 8.06 below.
(c) As a condition to Landlord's consent, if given under (b)
above, Landlord shall have obtained consent to such proposed subletting by a
superior mortgagee, provided such superior mortgagee requires consent to the
subletting. Landlord shall make a good faith effort to obtain any such required
consent within the time limit set forth above.
(d) In connection with any subletting, Tenant shall not offer the
Demised Premises, or any part thereof, to any other tenant in Tri-Park Corporate
Park or their subsidiaries or affiliates at a rental rate less than the current
rental rate for office buildings in the surrounding area including Tri-Park
Corporate Park. The foregoing sentence shall be inapplicable so long as Tenant
continues to rent the entire Building.
8.04. Tenant shall remain fully liable for the performance of all
Tenant's obligations hereunder notwithstanding any subletting provided for
herein (except to Landlord), and without limiting the generality of the
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foregoing, shall remain fully responsible and liable to Landlord for all acts
and omissions of any subtenant or anyone claiming under or through any subtenant
which shall be in violation of any of the obligations of this Lease and any such
violation shall be deemed to be a violation by Tenant.
8.05. Tenant shall not, without the prior written consent of Landlord,
assign this Lease, and the provisions of Section 8.03 with respect to subletting
shall equally apply to any assignment of this Lease. Tenant herein named, or any
immediate or remote successor in interest of Tenant herein named, shall remain
liable jointly and severally (as a primary obligor) with its assignee and all
subsequent assignees for the performance of Tenant's obligations hereunder. In
the event that Tenant hereunder is a corporation (other than one whose shares,
now or in the future, are regularly and publicly traded on a recognized stock
exchange, including over the counter, or is a public company or merges with a
public company), then any change in excess of 50% in the ownership of and/or
power to vote the majority of the outstanding capital stock of Tenant, other
than by inheritance or operation of law, shall be deemed an assignment of this
Lease and the provisions with respect to assignment shall be applicable.
8.06. Notwithstanding anything to the contrary contained in this
Article with respect to assignment or subletting, provided Tenant gives Landlord
prior written notice, no consent of Landlord shall be required with respect to
any assignment and/or subletting to any corporation into or with which Tenant
may be merged or consolidated or to any corporation which shall be an affiliate,
subsidiary, parent of Tenant or successor of substantially all the business
assets of Tenant, or to a partnership, the majority interest in which shall be
owned by the stockholders of Tenant or of any such corporation, and the
conditions of Section 8.03 shall not apply. Landlord acknowledges that the stock
of Tenant is publicly traded, and that no sale, assignment or other transfer of
the stock of Tenant by a shareholder(s) who does not have a controlling interest
in the Tenant shall be deemed an assignment of this Lease by operation of law or
otherwise.
8.07. Tenant agrees that in connection with each separate request for
a Landlord's consent to a subletting or assignment Tenant shall pay to Landlord
the greater of the sum of $500.00 or Landlord's actual out-of-pocket costs for
the administration costs of evaluating and responding to the request.
8.08. Tenant further agrees that it shall not place any signs on the
Land or on the windows located in the Demised Premises indicating that all or
any portion of the Demised Premises are available for subleasing or assignment.
8.09. In connection with any proposed subleasing and/or assignment
contemplated or permitted under this Article, Tenant shall advise Landlord in
writing in advance of its intent to market all or part of the Demised Premsies.
ARTICLE 9
COMPLIANCE WITH LAWS AND REQUIREMENTS
OF PUBLIC AUTHORITIES
9.01. Tenant shall give prompt notice to Landlord of any notice it
receives of the violation of any law or requirement of public authority, and at
its expense shall comply with all laws and requirements of public authorities
which shall, with respect to the Demised Premises or the use and occupation
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thereof, or the abatement of any nuisance, impose any violation, order or duty
on Landlord or Tenant, arising from (i) Tenant's use of the Demised Premises;
(ii) the manner of conduct of Tenant's business or operation of its
installation, equipment or other property therein; (iii) any cause or condition
created by or at the instance of Tenant, other than by Landlord's performance of
any work for or on behalf of Tenant; or (iv) the breach of any of Tenant's
obligations hereunder. Furthermore, Tenant need not comply with any such law or
requirement of public authority so long as Tenant shall be contesting the
validity thereof, or the applicability thereof to the Demised Premises, in
accordance with Section 9.02. Except as set forth above, and subject to Section
5.04, Landlord at its sole cost and expense shall comply with all laws and
requirements, including but not limited to those concerning Landlord's repair
obligations, if any, hereunder.
9.02. Tenant may, at its expense (and if necessary, in the name of but
without expense to Landlord) contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any law or requirement of public authority, and Landlord shall
cooperate with Tenant in such proceedings provided that:
(a) Tenant shall defend, indemnify, and hold harmless Landlord
against all liability, loss or damage which Landlord shall suffer by reason of
such non-compliance or contest, including reasonable attorney's fees and other
expenses reasonably incurred by Landlord;
(b) Such non-compliance or contest shall not constitute or result
in any violation of any superior mortgage, or, if such superior mortgage shall
permit such non-compliance or contest on condition of the taking of action or
furnishing of security by Landlord, such action shall be taken and such security
shall be furnished at the expense of Tenant; and
(c) Tenant shall keep Landlord advised as to the status of such
proceedings.
ARTICLE 10
INSURANCE
10.01. Tenant shall not violate, or knowingly permit the violation of,
any condition imposed by the all-risk casualty policy issued for the Demised
Premises and shall not do anything, or permit anything to be kept, in the
Demised Premises which would increase the fire or other casualty insurance rate
on the Demised Premises or the property therein over the rate which would
otherwise then be in effect, (unless Tenant pays the resulting increased amount
of premium as provided in Section 10.02) or which would result in insurance
companies of good standing refusing to insure the Demised Premises or any of
such property in amounts and at normal rates reasonably satisfactory to
Landlord. However, Tenant shall not be subject to any liability or obligation
under this Article by reason of the proper use of the Demised Premises for the
purposes permitted by Article 2.
10.02. The premiums for all insurance coverage maintained by Landlord
with respect to the Land and Demised Premises shall be an Operating Expense,
payable by Tenant in accordance with Article 5B, above. Landlord shall maintain
insurance in such amount and with such coverages as is customary and
commercially reasonable for first class office buildings of similar size.
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10.03. In the event that any dispute should arise between Landlord and
Tenant concerning insurance rates, a schedule or "make up" of rates for the
Demised Premises, as the case may be, issued by the Fire Insurance Rating
Organization of New Jersey or other similar body making rates for fire insurance
and extended coverage for the premises concerned, shall be presumptive evidence
of the facts therein stated and of the several items and charges in the fire
insurance rates with extended coverage then applicable to such premises.
10.04. Tenant shall obtain and keep in full force and effect during
the term of this Lease, at its own cost and expense, Comprehensive General
Liability Insurance, such insurance to afford protection in an amount of not
less than $1,000,000 for injury or death to any one person, $3,000,000 for
injury or death arising out of any one occurrence, and $1,000,000 for damage to
property, protecting and naming the Landlord, Xxxxxxx Property Management (or
other management company of the Demised Premises) and the Tenant as insured
against any and all claims for personal injury, death or property damage
occurring in or upon the Demised Premises and any part thereof. Tenant shall pay
all premiums and charges therefor and upon failure to do so Landlord may, but
shall not be obligated to, make payments, and in such latter event the Tenant
agrees to pay the amount thereof to Landlord on demand and said sum shall be
deemed to be additional rent, and in each instance collectible on the first day
of any month following the date of notice to Tenant in the same manner as though
it were rent originally reserved hereunder, together with interest thereon at
the rate of three points in excess of Prime Rate of First Union. Tenant will use
its best efforts to include in such Comprehensive General Liability Insurance
policy a provision to the effect that same will be non-cancelable, except upon
reasonable advance written notice to Landlord. The original insurance policies
or appropriate certificates shall be deposited with Landlord together with any
renewals, replacements or endorsements to the end that said insurance shall be
in full force and effect for the benefit of the Landlord during the term of this
Lease. In the event Tenant shall fail to procure and place such insurance, the
Landlord may, but shall not be obligated to, procure and place same, in which
event the amount of the premium paid shall be refunded by Tenant to Landlord
upon demand and shall in each instance be collectible on the first day of the
month or any subsequent month following the date of payment by Landlord, in the
same manner as though said sums were additional rent reserved hereunder together
with interest thereon at the rate of three points in excess of the Prime Rate of
First Union.
10.05. Landlord and Tenant agree to include in each of its insurance
policies a waiver of the insurer's right of subrogation. If such waiver shall
not be obtainable, the insured party must immediately so notify the other party.
In that event neither party nor its respective insurance company shall be deemed
to have waived subrogation.
10.06. Each party hereby releases the other party with respect to any
claim (including a claim for negligence) which it might otherwise have against
the other party for loss, damage, or destruction with respect to its property
(including rental value or business interruption) occurring during the term of
this Lease to the extent to which it is insured under a policy or policies
containing a waiver of subrogation or naming the other party as an additional
insured, as provided in Sections 10.04,10.05 and 10.08. If notwithstanding the
recovery of insurance proceeds by either party for loss, damage or destruction
of its property (or rental value or business interruption) the other party is
liable to the first party with respect thereto or is obligated under this Lease
to make replacement, repair, or restoration or payment, then provided that the
15
first party's right of full recovery under its insurance policies is not thereby
prejudiced or otherwise adversely affected, the amount of the net proceeds of
the first party's insurance against such loss, damage or destruction shall be
offset against the second party's liability to the first party thereof, or shall
be made available to the second party to pay for replacement, repair, or
restoration, as the case may be.
10.07 The waiver of subrogation or permission for release referred to
in Section 10.05 and 10.08 shall extend to the agents of each party and their
employees and, in the case of Tenant, shall also extend to all other persons and
entities occupying, using or visiting the Demised Premises in accordance with
the terms of this Lease, but only if and to the extent that such waiver or
permission can be obtained without additional charge (unless such party shall
pay such charge). The releases provided for in Section 10.06 shall likewise
extend to such agents, employees and other persons and entities, if and to the
extent that such waiver or permission is effective as to them. Nothing contained
in Section 10.06 shall be deemed to relieve either party of any duty imposed
elsewhere in this Lease to repair, restore or rebuild or to nullify any
abatement of rents provided for elsewhere in this Lease. Except as otherwise
provided in Section 10.04, nothing contained in Sections 10.05 and 10.06 shall
be deemed to impose upon either party any duty to procure or maintain any of the
kinds of insurance referred to therein or any particular amounts or limits of
any such kinds of insurance. However, each party shall advise the other, upon
request, from time to time (but not more often than once a year) of all of the
policies of insurance it is carrying of any of the kinds referred to in Sections
10.01 and 10.04, and if it shall discontinue any such policy or allow it to
lapse, shall notify the other party thereof with reasonable promptness. The
insurance policies referred to in Sections 10.05 and 10.06 shall be deemed to
include policies procured and maintained by a party for the benefit of its
mortgagee or pledgee.
10.08. Landlord shall maintain the following insurance coverage with
carriers licensed to do business in the State of New Jersey during the term of
this Lease (a) All-Risk Insurance for the full replacement value of the Building
and all improvements, machinery, and fixtures therein, including, but not
limited to, the Demised Premises except that such insurance shall not apply to
cover Tenant's personality, fixtures, furnishings and property as to which
Tenant shall provide insurance as above set forth, (b) Commercial General
Liability Insurance (including property damage and fire legal liability) with
limits of not less than $1,000,000.00 per occurrence and $3,000,000.00 in the
aggregate. Landlord represents that its insurance policy includes a waiver of
subrogation provided the Tenant has a waiver of subrogation in its policy.
ARTICLE 11
RULES AND REGULATIONS
11.01. Tenant and its employees and agent shall faithfully observe and
comply with the Rules and Regulations annexed hereto as Exhibit E, and such
reasonable changes therein (whether by modification, elimination, or addition)
as Landlord at any time or times hereafter may make and communicate in writing
to Tenant, which do not unreasonably affect the conduct of Tenant's business in
the Demised Premises; provided, however, that in case of any conflict or
inconsistency between the provisions of this Lease and any of the Rules and
Regulations as originally promulgated or as changed, the provisions of this
Lease shall control.
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11.02. Nothing contained in this Lease shall be construed to impose
upon Landlord any duty or obligation to Tenant to enforce the Rules and
Regulations or the terms, covenants, or conditions in any other lease, as
against any other tenant and Landlord shall not be liable to Tenant for
violation of the same by any other tenant or its employees, agents or visitors.
However, Landlord shall not enforce any of the Rules and Regulations in such
manner as to discriminate against Tenant or anyone claiming under or through
Tenant.
ARTICLE 12
TENANT'S CHANGES
12.01. Tenant shall make no changes, alterations, additions,
installations, substitutions, or improvements (hereinafter collectively called
"changes", and, as applied to changes Provided for in this Article, "Tenant's
Changes") in and to the Demised Premises without the express prior written
consent of Landlord.
Preliminary plans or requests for changes shall be submitted in
writing to the Landlord for preliminary approval. Landlord shall have fifteen
(15) days to respond to Tenant's request for changes. Final plans for Tenant's
Changes shall be submitted to Landlord for written consent at least thirty (30)
days prior to the date Tenant intends to commence such changes, such submission
to include all plans and specifications for the work to be done, proposed
scheduling, and the estimated cost of completion of Tenant's Changes. If
Landlord consents to Tenant's Changes, Tenant may commence and diligently
prosecute to completion Tenant's Changes, under the direct supervision of
Landlord.
Except for changes described in Section 12.07, Tenant shall pay to
Landlord a supervision fee (which shall include the cost of review of the
proposed Tenant's Changes) equal to the lesser of Landlord's actual cost of
supervision or ten percent (10%) of the certified cost of completion of Tenant's
Changes. Within fifteen (15) days after completion of Tenant's Changes, Tenant
shall furnish Landlord with a statement, certified by an officer or a principal
of Tenant to be accurate and true, of the total cost of completion of Tenant's
Changes (the "Total Cost"). Landlord shall then render its invoice to the Tenant
for the supervision fee, which shall be due and payable within thirty (30) days
as additional rent.
12.02. Notwithstanding the provisions of Section 12.01, all proposed
Tenant's Changes which shall affect or alter:
(a) The outside appearance or the strength of the Building or of
any of its structural parts; or
(b) Any part of the Building outside of the Demised Premises; or
(c) The mechanical, electrical, sanitary and other service
systems of the Building, or increase the usage of such systems;
shall be performed only by the Landlord, at a cost to be mutually agreed upon
between Landlord and Tenant. Notwithstanding the foregoing, with regard to
Section 12.02 (c) Landlord agrees that Tenant shall be entitled to perform minor
17
or less intensive electrical work such as removing, replacing or adding plugs
and sockets provided however that any such changes shall require Landlord's
approval and supervision and shall not be deemed a Section 12.07 change.
Further, upon notice to Landlord but without the need for Landlord's approval
and without the obligation to pay Landlord supervision fees, Tenant shall have
the right to perform any electrical work (including, but not limited to, the
minor or less intensive work described above) which does not affect the
electrical panel or circuit breakers, provided all such work is performed by
Xxxxxxx Xxxxxx and any company such as Xxxxxx Electric with which Xxxxxxx Xxxxxx
is affiliated or by a Licensed electrical contractor approvd in advance by
Landlord. If in the future, Xxxxxxx Xxxxxx no longer performs electrical work or
services, then Landlord shall name another acceptable electrician to perform
such permitted electrical work. In all instances of permitted electrical work,
Tenant shall provide Landlord with a mylar or other reproducible and five (5)
prints of as-built plans relating to such work.
12.03. Tenant, at its expense, shall obtain all necessary governmental
permits and certificates for the commencement and prosecution of Tenant's
Changes and for final approval thereof upon completion, and shall cause Tenant's
Changes to be performed in compliance therewith and with all applicable laws and
requirements of public authorities, and with all applicable requirements of
insurance bodies, and in good and workmanlike manner, using new materials and
equipment at least equal in quality and class to the original installations in
the Building. If Tenant is no longer leasing the entire Building, Tenant's
Changes shall be performed in such manner as not to unreasonably interfere with
or delay and (unless Tenant shall indemnify Landlord therefor to the latter's
reasonable satisfaction) as not to impose any additional expense upon Landlord
in the construction, maintenance or operation of the Building. Throughout the
performance of Tenant's Changes, Tenant, at its expense, shall carry, or cause
to be carried, workmen's compensation insurance in statutory limits and general
liability insurance for any occurrence in or about the Building, in which
Landlord, its managing agent and mortgagee of the Building shall be named as
parties insured in such limits as Landlord may reasonably prescribe, with
insurers reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of Tenant's Changes and, on request, at reasonable intervals
thereafter during the continuance of Tenant's Changes. If any of Tenant's
Changes shall involve the removal of any fixtures, equipment or other property
in the Demised Premises which are not Tenant's Property (as defined in Article
13), such fixtures, equipment or other property shall be promptly replaced, at
Tenant's expense, with new fixtures, equipment or other property (as the case
may be) of like utility and at least equal value. In addition, unless Landlord
shall otherwise expressly consent in writing, the Tenant shall deliver such
removed fixtures to Landlord.
12.04. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from
or otherwise connected with Tenant's Changes which shall be issued by any public
authority having or asserting jurisdiction. Tenant shall defend, indemnify and
save harmless Landlord against any and all mechanic's and other liens filed in
connection with Tenant's Changes, including the liens of any security interest
in, conditional sales of, or chattel mortgages upon, any material, fixtures or
articles so installed in and constituting part of the Demised Premises and,
against all costs, expenses and liabilities incurred in connection with any such
lien, security interest, conditional sale or chattel mortgage or any action or
18
proceeding brought thereon. Tenant, at its expense, shall procure the
satisfaction or discharge of all such liens within thirty (30) days after
Landlord makes written demand therefor. However, nothing herein contained shall
prevent Tenant from contesting, in good faith and at its own expense, any such
notice of violation, provided that Tenant shall comply with the provisions of
Section 9.02.
12.05. Tenant agrees that the exercise of its rights pursuant to the
provisions of this Article l2 shall not be done in a manner which would create
any work stoppage, picketing, labor disruption or dispute or violate Landlord's
union contracts affecting the Land and Building.
12.06. If Landlord requires restoration of all or any part of Tenant's
Changes, Landlord shall advise Tenant of such restoration requirement at the
time Landlord gives its consent to any Tenant Changes. If Landlord fails to
require restoration at the time it gives such consent, then restoration shall
not otherwise be required with respect to such Tenant's Changes.
12.07. Notwithstanding the foregoing, Tenant without the requirement
of any approval of the Landlord, but upon advance notice to Landlord may make
any non-structural and/or decorative changes to the Demised Premises, provided
that the cost thereof does not exceed $25,000 in each separate unrelated
instance; however such changes shall still be subject to Landlord's supervision
as otherwise provided in Section 12.01.
ARTICLE 13
TENANT'S PROPERTY
13.01. Landlord's Work, Tenant's Work and all fixtures, equipment,
improvements, and appurtenances attached to or built into the Demised Premises
at the commencement of or during the term of this Lease, whether or not by or at
the expense of Tenant, shall be and remain a part of the Demised Premises, shall
be deemed the property of Landlord and shall not be removed by Tenant, except as
hereinafter in this Article and in Article 3 expressly provided.
13.02. All business and trade fixtures, machinery and equipment,
communications equipment and office equipment, whether or not attached to or
built into the Demised Premises, which are installed in the Demised Premises by
or for the account of Tenant, without expense to Landlord, and can be removed
without permanent structural damage to the Building, and all furniture,
furnishings and other articles of movable personal property owned by Tenant and
located in the Demised Premises (all of which are sometimes called "Tenant's
Property"), shall be and shall remain the property of Tenant and may be removed
by it at any time during the term of this Lease; provided that if any of
Tenant's Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Demised Premises or to the Building resulting from such
removal. Any equipment or other property for which Landlord shall have granted
any allowance or credit to Tenant shall not be deemed to have been installed by
or for the account of Tenant, without expense to Landlord, and shall not be
considered Tenant's Property.
13.03. At or before the Expiration Date, or the date of an earlier
termination of this Lease, or as promptly as practicable after such an earlier
termination date, Tenant at its expense, shall remove from the Demised Premises
all of Tenant's Property except such items thereof as Tenant shall have
expressly agreed in writing with Landlord were to remain and to become the
property of Landlord, and, if required by Landlord as provided in Section 12.06,
19
above, all items of work done by or on behalf of Tenant after the Rent
Commencement Date shall be removed by Tenant and Tenant shall repair any damage
to the Demised Premises or the Building resulting from such removal. If Tenant
fails to remove its Property and/or otherwise fails to perform any restoration
required of it under this Lease, then Tenant shall be deemed a hold-over Tenant
as contemplated in Article 40.
13.04. Any other items of Tenant's Property (except money, securities,
and other like valuables) which shall remain in the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of the Landlord, be deemed to have been
abandoned, and in such case either may be retained by Landlord as its property
or may be disposed of, without accountability, in such manner as Landlord may
see fit, at Tenant's expense.
13.05. Landlord hereby expressly waives any and all rights granted by
or under any present or future laws to levy or distrain for rent, in arrears, in
advance or both, on any of Tenant's Property, or of any subtenant or licensee of
Tenant except after Landlord has instituted a legal action which permits the
Landlord to levy or distrain on Tenant's Property. In no event shall Landlord be
permitted to distrain upon Tenant's files and/or its proprietary documentation.
ARTICLE 14
REPAIRS AND MAINTENANCE
14.01. Tenant shall, at its sole cost and expense, keep and maintain
the Building and its fixtures, appurtenances, systems and facilities serving the
Demised Premises in good working order, condition, and repair and shall make
with all due diligence all repairs, structural and otherwise, as and when needed
in the Demised Premises, Tenant shall promptly make all repairs, ordinary or
extraordinary, structural or otherwise in the Building, except that Landlord
shall be responsible, for any of such repairs as are required by reason of
Landlord's neglect or other fault in the manner of performing any Tenant's
Changes which may be undertaken by Landlord for Tenant's account or are
otherwise required by reason of neglect or other fault of Landlord or its
employees, agents, or contractors. Tenant shall also be responsible at its sole
cost and expense for the performance of the obligations set forth in Section
5.02. Notwithstanding the foregoing, in connection with any repairs on or under
the Land, if the equipment, appurtenance, system, facility, etc. so repaired
serves the Demised Premises and other buildings in Tri-Park Corporate Park then
Section 5.11 shall govern, but if the applicable items serve only the Building
then Landlord shall complete such repairs at Tenant's expense. Any replacement
of such item or items shall be at Landlord's sole cost and expense.
ARTICLE 15
ELECTRICITY
15.01. The consumption of electricity at the Demised Premises shall be
measured by the existing meter. Tenant shall pay for its consumption of
electricity directly to the supplier of the service.
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ARTICLE l6
HEATING, VENTILATION AND AIR-CONDITIONING
16.01. Tenant, subject to Landlord's obligations as set forth in
Section 5.06, above, shall maintain and operate the heating, ventilating, and
air-conditioning systems (hereinafter called "the systems") and shall furnish
heat, ventilating, and air conditioning (hereinafter collectively called "air
conditioning service") in the Demised Premises through the systems, in
compliance with the performance specifications set forth in Exhibit C.
16.02. Use of the Demised Premises, or any part thereof, in a manner
exceeding the design conditions (including occupancy and connected electrical
load) specified in Exhibit C for air- conditioning service in the Demised
Premises, or rearrangement of partitioning which interferes with normal
operation of the air-conditioning in the Demised Premises, may require changes
in the air- conditioning system servicing the Demised Premises. Such changes, so
occasioned, shall be made by Landlord, at Tenant's expense, as Tenant's Changes
pursuant to Article l2.
ARTICLE l7
LANDLORD'S OTHER SERVICES; FACILITIES MANAGEMENT
17.01. Throughout the term hereof Landlord shall make available for
Tenant's use parking spaces in the parking area adjacent to the Building, in
common with other tenants of the buildings at Tri-Park Corporate Park. Landlord
states that there are four (4) parking spaces per 1000 square feet of rentable
square feet of office space in the Building, including 40 reserved spaces in the
locations shown on the parking plan annexed hereto as Exhibit H. Landlord shall
not be responsible for policing or enforcing the exclusivity of use of the
reserved parking spaces.
17.02. Landlord and Tenant recognize that Tenant intends to retain a
facilities manager (the "Facilities Manager") to assist in Tenant's operations
at and occupancy of the Demised Premises and for the performance of various
duties on behalf of Tenant at the Demised Premises as determined by Tenant. In
connection with the engagement of the Facilities Manager, Landlord and Tenant
agree as follows:
(a) The identity of the Facilities Manager shall be subject to
the prior written approval of Landlord. It is agreed that the Facilities Manager
shall not be a real estate developer in the State of New Jersey. Set forth on
Exhibit J is a schedule of facilities managers who are acceptable to Landlord,
and with whom Tenant is free to execute a facilities management agreement; such
acceptability is based on such Facilities Manager not being real estate
developers. If a Facilities Manager shall become a real estate developer during
the term of an agreement, then such Facilities Manager shall be terminated at
the earlier of the expiration of the current term or twelve (12) months.
(b) Prior to entering into any agreement with a Facilities
Manager, such agreement in redacted form (meaning the identity, term and
complete detailed listing of services, renewal provisions. etc. shall be
provided but compensations and fees may be excluded) shall be submitted to
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Landlord for its prior written approval, which approval shall not be
unreasonably withheld or delayed. Tenant shall not enter into any agreement with
a Facilities Manager until it has obtained Landlord's prior written approval
therefor. In the event that the proposed agreement is deemed by Landlord to be
inconsistent with the terms of this Lease as the same relate to the respective
rights and duties of Landlord and Tenant regarding the repair, maintenance
and/or operation of the Demised Premises and/or changes and alterations thereto,
it shall so inform Tenant with specificity as to the grounds of objection.
Tenant shall then have a reasonable opportunity in which to amend the proposed
agreement and again submit it to Landlord for its approval. If an approved
agreement is automatically renewable or can be renewed by letter authorization
without change to its terms, Tenant need only advise Landlord of such renewal.
(c) In the event Tenant intends to change the identity of the
Facilities Manager, and/or materially changes the terms and conditions of the
Facilities Manager's agreement as the same relate to the Facilities Manager's
duties regarding the repair, maintenance and/or operation of the Demised
Premises, then such changes shall be subject to the prior written approval of
Landlord in accordance with the terms of this Section 17.02. Any changes to the
items described in (b) above shall be a material change.
(d) The term of Tenant's agreement with the Facilities Manager
shall not exceed twelve (12) months. Any twelve (12) month agreement which does
not violate (a), (b) or (c) above can be automatically renewed upon notice to
Landlord and the balance of this subsection (d) shall not apply. Tenant agrees
to forward to Landlord any request for proposal that is submitted by Tenant to
third parties respecting the position of Facilities Manager and shall afford to
Landlord and/or its affiliates an equal opportunity to submit a bid to Landlord
for such position of Facilities Manager at the expiration of such existing
agreement if not renewed as above permitted.
(e) From and after sixty (60) days from the date of this Lease
Tenant shall not be permitted to retain the services in any manner of any
facilities manager unless such facilities manager is selected in accordance with
Section 17.02.
(f) Failure by any Facilities Manager to perform its duties under
its agreement with Tenant or failure of Tenant to retain a Facilities Manager
shall not excuse Tenant from the performance of its obligations under this
Lease. The determination by Tenant not to retain or continue with a Facilities
Manager shall not constitute a default hereunder.
ARTICLE 18
ACCESS, CHANGES IN BUILDING FACILITIES, NAME
18.01. All walls, windows, and doors bounding the Demised Premises
(including exterior Building walls, core corridor walls and doors, and any core
corridor entrance), except the inside surfaces thereof, any terraces or roofs
adjacent to the Demised Premises, and any space in or adjacent to the Demised
Premises used for shafts, stacks, pipes, conduits, fan room, ducts, electric or
other utilities, sinks or other Building facilities, and the use thereof, as
well as access thereto through the Demised Premises for the purposes of
operation, maintenance, decoration, and repair are reserved to Landlord. The
provisions of this Section 18.01 shall be inapplicable so long as Tenant leases
the entire Building.
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18.02. Intentionally omitted.
18.03. Landlord or Landlord's agent shall have the right upon request
(except in emergency under clause (ii) hereof) to enter and/or pass through the
Demised Premises or any part thereof, at reasonable times during reasonable
hours, (i) to examine the Demised Premises and to show them to holders of
superior mortgages, or prospective purchasers, mortgagees or lessees of the
Building as an entirety; and (ii) for the purpose of making such repairs or
changes or doing such repainting in or to the Demised Premises or its
facilities, as may be provided for by this Lease or as may be mutually agreed
upon by the parties or as Landlord may be required to make by law or in order to
repair and maintain said structure or its fixtures or facilities. Landlord shall
be allowed to take all materials into and upon the Demised Premises that may be
required for such repairs, changes, repainting, or maintenance, without
liability to Tenant but Landlord shall not unreasonably interfere with Tenant's
use of the Demised Premises. Landlord shall also have the right to enter on
and/or pass through the Demised Premises, or any part thereof, at such times as
such entry shall be required by circumstances of emergency affecting the Demised
Premises or the Building. Exercise by Landlord of its rights pursuant to this
Section 18.03 is subject to the provisions of Section 20.04, below. Landlord
agrees to comply with all reasonable security measures established by Tenant
from time to time, provided that prior notice thereof shall have been given to
Landlord.
18.04. During the period of nine (9) months prior to the Expiration
Date, Landlord may exhibit the Demised Premises to prospective tenants.
18.05. Intentionally omitted.
18.06. It is agreed that the Building shall not be named during the
term of the Lease.
18.07. Subject to applicable law the Building shall be accessible to
Tenant and all Tenant Parties (as defined in Section 20.04) twenty-four (24)
hours a day, seven (7) days a week, three hundred sixty five (365) days per
year.
18.08. Tenant shall have the right to use and change the existing
monument sign at 000 Xxxxxx Xxxxx for the display of its own name. Prior to
changing said monument sign, Tenant shall submit its plans for such change to
Landlord for its prior written consent, which shall not be unreasonably
withheld. Any change to the monument sign and procurement of any necessary
governmental approvals therefor shall be effected by Tenant at its sole cost and
expense.
18.09. Tenant shall be entitled to install within the Demised Premises
(but not on the exterior windows), in accordance with all applicable laws, non
offensive signage as determined by Tenant.
ARTICLE 19
NOTICE OF ACCIDENTS
19.01. Tenant shall give notice to Landlord, promptly after Tenant
learns thereof, of (i) any accident in or about the Demised Premises for which
23
Landlord might be liable; (ii) all fires in the Demised Premises; (iii) all
damage to or defects in the Demised Premises, including the fixtures, equipment,
and appurtenances thereof, for the repair of which Landlord might be
responsible; and (iv) all damage to or defects in any parts or appurtenances of
the Building's sanitary, electrical, heating, ventilating, air-conditioning,
elevator, and other systems located in or passing through the Demised Premises
or any part thereof.
ARTICLE 20
NON-LIABILITY AND INDEMNIFICATION
20.01. Neither Landlord nor any agent or employee of Landlord shall be
liable to Tenant for any injury or damage to Tenant or to any other person or
for any damage to, or loss (by theft or otherwise) of, any property of Tenant or
of any other person, irrespective of the cause of such injury, damage, or loss,
unless caused by or due to the negligence of Landlord, its agents, or employees.
20.02. Tenant shall indemnify and save harmless Landlord and its
agents against and from (a) any and all claims (i) arising from (x) the conduct
or management by Tenant, the Tenant Parties (as hereinafter defined) and their
respective contractors, of the Demised Premises or of any business therein, or
(y) any work or thing whatsoever done, or any condition created (other than by
Landlord for Landlord's or Tenant's account) in the Demised Premises during the
term of this Lease or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Demised
Premises, or (ii) arising from any negligent or otherwise wrongful act or
omission of Tenant or any of its subtenants, invitees or licensees or its or
their employees, agents, or contractors, and (b) all costs, expenses, and
liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon. In case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant, upon notice from Landlord, shall
resist and defend such action or proceeding.
20.03. Except as otherwise expressly provided in this Lease, this
Lease and the respective obligations of Landlord and Tenant hereunder (other
than Tenant's obligation to pay rent) shall be in no way affected, impaired or
excused because the other party is unable to fulfill, or is delayed in
fulfilling, any of its obligations under this Lease by reason of strike, other
labor trouble, governmental pre-emption or priorities or other controls in
connection with a national or other public emergency or shortages of fuel
supplies or labor resulting therefrom, or other like cause beyond such party's
reasonable control.
20.04. Landlord shall indemnify and save harmless Tenant, its
shareholders, officers, employees, agents, and/or directors (collectively
"Tenant Parties") against and from (a) any and all claims arising from any
negligent or otherwise wrongful act or omission of Landlord or any of its
subtenants, invitees or licensees or its or their employees, agents, or
contractors, and any default under the terms of this Lease by Landlord following
Tenant's giving of written notice to Landlord of such default and affording
Landlord a reasonable opportunity in which to cure the same; and (b) all costs,
expenses, and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon. In case any action or proceeding be
brought against Tenant by reason of any such claim, Landlord, upon notice from
Tenant, shall resist and defend such action or proceeding with counsel approved
by Tenant, which approval shall not be unreasonably withheld.
24
20.05 In no event shall Tenant's shareholders, officers, employees,
agents, and/or directors be responsible for any of the obligations under this
Lease.
ARTICLE 21
DESTRUCTION OR DAMAGE
21.01. If the Building or the Demised Premises shall be partially or
totally damaged or destroyed by fire or other cause, then whether or not the
damage or destruction shall have resulted from the fault or neglect of Tenant,
or its employees, agents or visitors (and if this Lease shall not have been
terminated as in this Article hereinafter provided), Landlord shall repair the
damage and restore and rebuild the Building and/or the Demised Premises
(including Landlord's Work and any Tenant's Finish Work that was performed by
Landlord), at its expense, with reasonable dispatch after notice to it of the
damage or destruction; provided, however, that Landlord shall not be required to
repair or replace any of the Tenant's Property.
21.02. If the Building or the Demised Premises shall be partially
damaged or partially destroyed by fire or other cause, the rents payable
hereunder shall be abated to the extent that the Demised Premises shall have
been rendered untenantable and for the period from the date of such damage or
destruction to the date the damage shall be repaired or restored. If the Demised
Premises or a major part thereof shall be totally (which shall be deemed to
include substantially totally) damaged or destroyed or rendered completely
(which shall be deemed to include substantially completely) untenantable on
account of fire or other cause, the rents shall xxxxx as of the date of the
damage or destruction and until Landlord shall repair, restore, and rebuild the
Building and the Demised Premises (including Landlord's Work and any Tenant's
Finish Work that was performed by Landlord), provided, however, that should
Tenant reoccupy a portion of the Demised Premises during the period of
restoration work is taking place and prior to the date that the same are made
completely tenantable, rents allocable to such portion shall be payable by
Tenant from the date of such occupancy.
21.03. If the Building or the Demised Premises shall be totally
damaged or destroyed by fire or other cause, or if the Building shall be so
damaged or destroyed by fire or other cause as to require a reasonably estimated
expenditure of more than twenty five percent (25%) of the replacement cost of
the Building then in either such case Landlord may terminate this Lease by
giving Tenant notice to such effect within sixty (60) days after the date of the
casualty. If the Building or the Demised Premises shall be partially or totally
damaged or destroyed by fire or other cause and Landlord elects not to exercise
the aforementioned termination right (or if such right is not created), Landlord
shall deliver to Tenant, within sixty (60) days of the casualty, a written
certification from X. Xxxxxxx Company, Inc. or other contractor of Landlord of
(a) the extent of damage to the Building, in reasonable detail, and (b) the time
within which substantial restoration of the Demised Premises (including
Landlord's Work and any Tenant's Finish Work that was performed by Landlord)
will occur (the "Estimated Completion Date"). If the Estimated Completion Date
25
is more than twelve (12) months from the date of casualty to restore the Demised
Premises, as aforesaid, Tenant shall have the right to terminate this Lease by
written notice to Landlord within thirty (30) days of Tenant's receipt of the
contractor's written statement setting forth the Estimated Completion Date,
otherwise this Lease will remain in full force and effect unless Landlord or
Tenant elects to terminate this Lease as provided elsewhere in this Article. In
any event, in case of any damage or destruction mentioned in this Article, and
neither Landlord nor Tenant has exercised an aforementioned termination right,
Tenant shall again have the right, but not the obligation, to terminate the
Lease upon thirty (30) days notice to Landlord, if Landlord has not
substantially completed the making of the required repairs and restored and
rebuilt the Building and the Demised Premises, as aforesaid, by the later of (a)
the date which is twelve (12) months after the date of such damage or
destruction, or (b) the Estimated Completion Date, which termination notice
Landlord may vitiate if prior to the expiration of such thirty (30) days
Landlord substantially completes the repairs, restorations and/or rebuilding of
the Building and the Demised Premises. Such period for repair, restoration and
rebuilding shall be extended for such time (not exceeding four (4) months) as
shall equal the aggregate period Landlord may have been delayed in doing so by
adjustment of insurance, labor trouble, governmental controls, act of God, or
any other cause beyond Landlord's reasonable control. Any termination of this
Lease pursuant to this Section 21.04 shall be without further liability of
Tenant to Landlord.
21.04. No damages, compensation, or claim shall be payable by Landlord
for inconvenience, loss of business, or annoyance arising from any repair or
restoration of any portion of the Demised Premises or of the Building pursuant
to this Article. Landlord shall use its best efforts to effect such repair or
restoration promptly and in such manner as not unreasonably to interfere with
Tenant's use and occupancy during such time that Tenant is able to use the
Demised Premises during Landlord's restoration.
21.05. Intentionally omitted.
21.06. Landlord will not carry insurance of any kind on Tenant's
Property, and, except as provided by law or by reason of its fault or its breach
of any of its obligations hereunder, shall not be obligated to repair any damage
thereto or replace the same; to the extent that Tenant shall maintain insurance
on Tenant's Property, Landlord shall not be obligated to repair any damage
thereto or replace the same.
21.07. The provisions of this Article shall be considered an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and any law of the State of New Jersey providing for
such a contingency in the absence of an express agreement, and any other law of
like import, now of hereafter in force, shall have no application in such case.
21.08. If the Demised Premises and/or access thereto become partially
or totally damaged or destroyed by any casualty not insured against, then
Landlord or Tenant shall have the right to terminate this Lease upon giving the
other party thirty (30) days notice and upon the expiration of said thirty (30)
day notice period this Lease shall terminate as if such termination date were
the Expiration Date.
21.09. The determination of whether or not the Building and/or the
Demised Premises have been repaired or restored shall be made on the same basis
as the original delivery and completion of the Demised Premises as in this Lease
provided.
26
ARTICLE 22
EMINENT DOMAIN
22.01. If the whole of the Land or Building or access to the Building
or parking areas of the Building shall be lawfully taken by condemnation or in
any other manner for any public or quasi-public use of purpose, this Lease and
the term and estate hereby granted shall forthwith terminate as of the date of
vesting of title on such taking (which date is herein after also referred to as
the "date of the taking"), and the rents shall be prorated and adjusted as of
such date.
22.02. If any part of the Land or Building or access to the Building
or parking areas of the Building shall be so taken, this Lease shall be
unaffected by such taking, except that Tenant may elect to terminate this Lease
in the event of such partial taking, if the area of the Demised Premises and/or
parking facilities or access to the Demised Premises shall not be reasonably
sufficient for Tenant to continue feasible operation of its business. Tenant
shall give notice of such election to Landlord not later than thirty (30) days
after the date of such taking. Upon the giving of such notice to Landlord, this
Lease shall terminate on the date of service of notice and the rents apportioned
to the part of the Demised Premises so taken shall be prorated and adjusted as
of the date of the taking and the rents apportioned to the remainder of the
Demised Premises shall be prorated and adjusted as of such termination date.
Upon such partial taking and this Lease continuing in force as to any part of
the Demised Premises, the rents apportioned to the part taken shall be prorated
and adjusted as of the date of taking and from such date the fixed rent shall be
reduced to the amount apportioned to the remainder of the Demised Premises and
additional rent shall be payable pursuant to Article 5 according to the rentable
area remaining.
22.03. Landlord shall be entitled to receive the entire award in any
proceeding with respect to any taking provided for in this Article without
deduction therefrom for any estate vested in Tenant by this Lease, and Tenant
shall receive no part of such award. Tenant hereby expressly assigns to Landlord
all of its right, title, and interest in or to every such award. Notwithstanding
the foregoing, Tenant may claim a condemnation award for the unamortized portion
of the cost incurred by Tenant in connection with any of Tenant's Property
installed pursuant to this Lease and severance damages. In addition Tenant may
xxx the appropriate agency for relocation expenses pursuant to the Relocation
Assistance Act, N.J.S.A. 20:4-1 et seq.
22.04. If the temporary use or occupancy of all or any part of the
Demised Premises shall be lawfully taken by condemnation or in any other manner
for any public or quasi-public use or purpose during the term of this Lease,
Tenant shall be entitled to receive any award for the taking of Tenant's
Property and for moving expenses, and Landlord shall be entitled to receive that
portion which represents reimbursement for the cost of restoration of the
Demised Premises. This Lease shall be and remain unaffected by such taking and
Tenant shall remain responsible for all of its obligations hereunder insofar as
such obligations are not affected by such taking and shall continue to pay in
full the fixed rent and additional rent when due, subject however to a
proportionate abatement of rent for that portion of the Demised Premises
temporarily taken which are unuseable by Tenant. If the period of temporary use
27
or occupancy of the Demised Premises (or a part thereof) extends beyond the
Expiration Date, then the condemnation award shall be divided between Landlord
and Tenant, as aforesaid, so that Tenant shall receive so much thereof as
represents the period prior to the Expiration Date and Landlord shall receive so
much thereof as represents the period subsequent to the Expiration Date. All
moneys received by Tenant as, or as part of, an award for temporary use and
occupancy for a period beyond the date to which the rents hereunder have been
paid by Tenant shall be received, held, and applied by Tenant as a trust fund
for payment of the rents falling due hereunder.
22.05. In the event of any taking of less than the whole of the
Building which does not result in a termination of this Lease, or in the event
of a taking for a temporary use or occupancy of all or any part of the Demised
Premises which does not extend beyond the Expiration Date, Landlord, at its
expense, shall proceed with reasonable diligence to repair, alter, and restore
the remaining parts of the Building and the Demised Premises to substantially
their former condition to the extent that the same may be feasible and so as to
constitute a complete and tenantable Building and Demised Premises. If such
taking occurs within the last three (3) years of the term of this Lease,
Landlord shall have the right to terminate this Lease by giving the Tenant
written notice to such effect within ninety (90) days after such taking, and
this Lease shall then expire on that effective date stated in the notice as if
that were the Expiration Date, but the fixed rent and the additional rent shall
be prorated and adjusted as of the date of such taking, except that Tenant may
negate any such cancellation by exercising any renewal option right then
available to Tenant in which event this Lease shall continue.
22.06. Intentionally omitted.
22.07. Any dispute which may arise between the parties with respect to
the meaning or application of any of the provisions of this Article shall be
determined by arbitration in the manner provided in Article 33.
ARTICLE 23
SURRENDER
23.01. On the last day of the term of this Lease, or upon any earlier
termination of this Lease, or upon any re-entry by Landlord upon the Demised
Premises pursuant to an order of court having jurisdiction, Tenant shall quit
and surrender the Demised Premises to Landlord in good order, condition, and
repair, except for ordinary wear and tear and such damage or destructions as
Landlord is required to repair or restore under this Lease, and Tenant shall
remove all of Tenant's Property therefrom except as otherwise expressly provided
in this Lease. Landlord reserves the right to require Tenant to remove all items
installed by, for or on behalf of Tenant in excess of the Building standard
items ("Landlord's Work"), all as more particularly described in Article 3.
Subject to the terms of Article 40 which shall govern, if Tenant fails to
conform to the provisions of Article 40 on or before the last day of the term of
this Lease or upon any earlier termination, Tenant shall be deemed a hold-over
Tenant under Article 40 of this Lease until such time as Tenant has completed
such restoration.
ARTICLE 24
CONDITIONS OF LIMITATION
24.01. This Lease and the term and estate hereby granted are subject
to the limitation that whenever Tenant shall make an assignment of the property
of Tenant for the benefit of creditors, or shall file a voluntary petition under
28
any bankruptcy or insolvency law, or an involuntary petition alleging an act of
bankruptcy or insolvency shall be filed against Tenant under any bankruptcy or
insolvency law, or whenever a petition shall be filed by or against Tenant under
the reorganization provisions of the United States Bankruptcy Act or under the
provisions of any law of like imports or whenever a petition shall be filed by
Tenant under the arrangement provisions of any law of like import, whenever a
permanent receiver of Tenant or of or for the property of Tenant shall be
appointed, then Landlord, (a) at any time of receipt of notice of the occurrence
of any such event, or (b) if such event occurs without the acquiescence of
Tenant, at any time after the event continues for ninety (90) days, Landlord may
give Tenant a notice of intention to end the term of this Lease at the
expiration of five (5) days from the date of service of such notice of
intention, and upon the expiration of said five (5) day period this Lease and
the term and estate hereby granted, whether or not the term shall theretofore
have commenced, shall terminate with the same effect as if that day were the
Expiration Date, but Tenant shall remain liable for damages as provided in
Article 26.
24.02. This Lease and the term and estate hereby granted are subject
to the further limitation that:
(a) Whenever Tenant shall default in the payment of installment
of fixed rent, or in the payment of any additional rent or any other charge
payable by Tenant to Landlord, or any day upon which the same ought to be paid,
and such default shall continue for five (5) days after written notice thereof;
or
(b) Whenever Tenant shall do or knowingly permit anything to be
done, whether by action or inaction, contrary to any of Tenant's obligations
hereunder, and if such situation shall continue and shall not be remedied by
Tenant within thirty (30) days after Landlord shall have given to Tenant a
written notice specifying the same, or, in the case of a happening or default
which cannot with due diligence be cured within a period of thirty (30) days and
the continuance of which for the period required for cure will not subject
Landlord to risk of criminal liability or foreclosure of any superior mortgage
if Tenant shall not, (i) within said thirty (30) day period advise Landlord of
Tenant's intention to duly institute all steps necessary to remedy such
situation; (ii) duly institute within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
same; (iii) complete such remedy within such time after the date of giving of
said notice to Landlord as shall reasonably be necessary; or
(c) Whenever any event shall occur or any contingency shall arise
whereby this Lease or the estate hereby granted or the unexpired balance of the
term hereof would, by operation of law or otherwise, devolve upon or pass to any
person, firm, or corporation other than Tenant, except as expressly permitted by
Article 8; or
(d) Intentionally omitted; or
(e) If Tenant shall default in the timely payment of rent or
additional rent and any such default shall continue to be repeated for two (2)
consecutive months or for a total of four (4) months in any period of twelve
(12) months, or more than three (3) times in any six (6) month period, then,
notwithstanding that such defaults shall have each been cured within the
applicable period, any similar default shall be deemed to be deliberate and
Landlord may thereafter serve a notice of termination upon Tenant without
affording to Tenant opportunity to cure such default;
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then, and in any of the foregoing cases, this Lease and the term and estate
hereby granted, whether or not the term shall theretofore have commenced, shall,
if the Landlord so elects, terminate upon ten (10) days written notice by
Landlord to Tenant of Landlord's election to terminate the Lease and the term
hereof shall expire and come to an end on the date fixed in such notice, with
the same effect as if that day were the Expiration Date, but Tenant shall remain
liable for the rent and additional rent which subsequently accrues and for
damages as provided in Article 26.
ARTICLE 25
RE-ENTRY BY LANDLORD
25.01. If Tenant shall default in the payment of any installment of
fixed rent, or of any installment of additional rent, on any date upon which the
same ought to be paid and if such default shall continue for five (5) days after
written notice thereof, or if this Lease shall expire as provided in Article 24,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter re-enter the Demised Premises, or any part thereof, in the name of
the whole, either by summary dispossess proceedings or by any suitable action or
proceeding at law, or by force or otherwise, without being liable to indictment,
prosecution or damages therefor, and may repossess the same, and may remove any
persons therefrom, to the end that Landlord may have, hold, and enjoy the
Demised Premises again as and of its first estate and interest therein. The word
"re-enter", as herein used, is not restricted to its technical legal meaning. In
the event of any termination of this Lease under the provisions of Article 24 or
if Landlord shall re-enter the Demised Premises under the provisions of this
Article or in the event of the termination of this Lease, or of re-entry, by or
under any summary dispossess or other proceeding or action or any provision of
law by reason of default hereunder on the part of Tenant, Tenant shall thereupon
pay to Landlord the fixed rent and additional rent payable by Tenant to Landlord
up to the time of such termination of this Lease, or of such recovery of
possession or the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 26.
25.02. In the event of a breach or threatened breach by Landlord or
Tenant of any of their respective obligations under this Lease, either Landlord
or Tenant, as the case may be, shall also have the right of injunction. The
special remedies hereunder are cumulative and are not intended to be exclusive
of any other remedies or means of redress to which the parties may lawfully be
entitled at any time.
25.03. If this Lease shall terminate under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article, or in the event of any termination of this Lease, or of re-entry,
by or under any summary dispossess or other proceeding or action or any
provision of law by reason of default hereunder on the part of Tenant, Landlord
shall be entitled to retain all moneys, if any, paid by Tenant to Landlord,
whether as advance rent, security, or otherwise, but such moneys shall be
credited by Landlord against any fixed rent or additional rent due from Tenant
at the time of such termination or re-entry or, at Landlord's option, against
any damages payable by Tenant under Article 26 or pursuant to law.
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ARTICLE 26
DAMAGES
26.01. If this Lease is terminated under the provisions of Article 24,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 25, 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 of any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either
(a) A sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be, represents the
then value of the excess, if any, of (i) the aggregate of the fixed rent and the
additional rent payable hereunder which would have been payable by Tenant
(conclusively presuming the additional rent to be the same as was payable for
the year immediately preceding such termination) for the period commencing with
such earlier termination of this Lease or the date of any such re-entry, as the
case may be, and ending with the Expiration Date, had this Lease not so
terminated or had Landlord not so re-entered the Demised Premises, over (ii) the
aggregate rental value of the Demised Premises for the same period, or
(b) Sums equal to the fixed rent and the additional rent (as
above presumed) payable hereunder which would have been payable by Tenant had
this Lease not so terminated, or had Landlord not so re-entered the Demised
Premises, payable upon the due dates therefor specified herein following such
termination or such re-entry and until the Expiration Date, provided, however,
that if Landlord shall relet the Demised Premises during said period, Landlord
shall credit Tenant with the net rents received by Landlord from such reletting,
such net rents to be determined by first deducting from the gross rents as and
when received by Landlord from such reletting, the expenses incurred or paid by
Landlord in terminating this Lease or in re-entering the Demised Premises and in
securing possession thereof, as well as the expenses of reletting, including
altering and preparing the Demised Premises for new tenants, brokers'
commissions, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom; it being understood that any such reletting
may be for a period shorter or longer than the remaining term of this Lease; but
in no event shall Tenant be entitled to receive any excess of such net rents
over the sums payable by Tenant to Landlord hereunder, nor shall Tenant be
entitled in any suit for the collection of damages pursuant to this Subsection
to a credit in respect of any net rents from a reletting, except to the extent
that such net rents are actually received by Landlord. Damages shall also
include the unamortized portion of the cost of Landlord's Work and any brokerage
fees or commissions paid by Landlord. If the Demised Premises or any part
thereof should be relet in combination with other space, then proper
apportionment on a square foot basis shall be made of the rent received from
such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof to be relet by
Landlord for the unexpired portion of the term of this Lease, or any part
thereof, before presentation of proof of such damages to any court, commission
or tribunal, the amount of rent reserved upon such reletting shall, prima facie,
be the fair and reasonable rental value for the Demised Premises, or part
thereof, so relet during the term of the reletting.
26.02. Suit or suits for the recovery of such damages, or any
installments thereof, may be brought by Landlord from time to time at its
31
election, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the term of this Lease would have expired if
it had not been so terminated under the provisions of Article 24, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to seek and obtain as
liquidated damages by reason of the termination of this Lease or re-entry on the
Demised Premises for the default of Tenant under this Lease, an amount equal to
the maximum allowed by any statute or rule of law in effect at the time when,
and governing the proceedings in which, such damages are to be proved whether or
not such amount be greater, equal to, or less than any of the sums referred to
in Section 26.01.
26.03. In addition to the foregoing and without regard to whether this
Lease is terminated, Tenant shall pay to Landlord upon demand, all costs and
expenses incurred by Landlord, including reasonable attorney's fees, with
respect to any lawsuit instituted or defended or any action taken by Landlord to
enforce all or any of the provisions of this Lease.
26.04. Landlord agrees that if it fails to perform any service
required of it or observe any term of this Lease, Tenant shall notify Landlord
in writing of such failure. Landlord shall then have thirty (30) days within
which to cure such default. Landlord shall diligently and continually proceed to
cure any such default within five (5) days of written notice from Tenant.
Landlord agrees to advise Tenant within five (5) business days of Landlord's
efforts to cure such default. If Landlord fails to cure such default within the
thirty (30) day period, Tenant shall be entitled, but not obligated, to perform
such service and invoice Landlord for the cost thereof. If Landlord fails to
reimburse Tenant, Tenant shall be entitled to institute litigation against
Landlord. If Tenant is successful in such litigation, Tenant shall also be
entitled to reasonable costs and expenses including attorney's fees in
connection with such litigation. Tenant agrees that it shall not exercise the
right of any offset against rent for any sums due it pursuant to this Section
until such time as Tenant has obtained a judgment against Landlord.
ARTICLE 27
WAIVERS
27.01. Tenant, for Tenant, and on behalf of any and all persons
claiming through or under Tenant, including creditors of all kinds, does hereby
waive and surrender all right and privilege which they or any of them might have
under or by reason of any present or future law, to redeem the Demised Premises
or to have a continuance of this Lease for the term hereby demised after being
dispossessed or ejected therefrom by process of law or under the terms of this
Lease or after the termination of this Lease as herein provided.
27.02. In the event that Tenant is in arrears in payment of fixed rent
or additional rent hereunder, Tenant waives Tenant's right, if any, to designate
the items against which any payments made by Tenant are to be credited, and
Tenant agrees that Landlord may apply any payments made by Tenant to any items
it sees fit, irrespective of and notwithstanding any designation or request by
Tenant as to the items against which any such payments shall be credited.
32
27.03. Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Demised
Premises, including any claim of injury or damage, or any emergency or other
statutory remedy with respect thereto.
27.04. The provisions in Articles 16 and l7 shall be considered
express agreements governing the services to be furnished by Landlord, and
Tenant agrees that any laws and/or requirements of public authorities, now or
hereafter in force, shall have no application in connection with any enlargement
of Landlord's obligations with respect to such services.
ARTICLE 28
NO OTHER WAIVERS OR MODIFICATIONS
28.01. The failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the obligations of
this Lease, or to exercise any election herein contained, shall not be construed
as a waiver or relinquishment for the future of the performance of such one or
more obligations of this Lease or of the right to exercise such election, but
the same shall continue and remain in full force and effect with respect to any
subsequent breach, act, or omission. No executory agreement hereafter made
between Landlord and Tenant shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such executory agreement is in writing, refers expressly to
this Lease and is signed by the party against whom enforcement of the change,
modification, waiver, release, discharge, or termination of effectuation of the
abandonment is sought.
28.02. Without limiting Section 28.01, the following provisions shall
also apply:
(a) No agreement to accept a surrender of all or any part of the
Demised Premises shall be valid unless in writing and signed by Landlord. The
delivery of keys to an employee of Landlord or of its agent shall not operate as
a termination of this Lease or a surrender of the Demised Premises. If Tenant
shall at any time request Landlord to sublet the Demised Premises for Tenant's
account, Landlord or its agent is authorized to receive said keys for such
purposes without releasing Tenant from any of its obligations under this Lease,
and Tenant hereby releases Landlord from any liability for loss or damage to any
of Tenant's property in connection with such subletting.
(b) The receipt by Landlord of rent with knowledge of breach of
any obligation of this Lease shall not be deemed a waiver of such breach.
(c) No payment by Tenant or receipt by Landlord of a lesser
amount than the correct fixed rent or additional rent due hereunder shall be
deemed to be other than a payment on account, nor shall any endorsement or
statement on any check or any letter accompanying any check or payment be deemed
an accord and satisfaction, and Landlord may accept such check or payment
without prejudice to Landlord's right to recover the balance or pursue any other
remedy in this Lease or at law provided.
33
ARTICLE 29
CURING TENANT'S DEFAULTS
29.01. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice, in a case of emergency, and in any other
case, only if such default continues after the expiration of (i) five (5) days
from the date Landlord gives Tenant notice of intention so to do, (ii) plus the
applicable grace period provided in Section 24.02 or elsewhere in this Lease for
cure of such.
29.02. Bills, invoices and purchase orders for any and all costs,
charges, and expenses incurred by Landlord in connection with any such
performance by it for the account of Tenant, including reasonable counsel fees,
involved in collecting or endeavoring to collect the fixed rent or additional
rent or any part thereof, or enforcing or endeavoring to enforce any rights
against Tenant, under or in connection with this Lease, or pursuant to law,
including any such cost, expense, and disbursement involved in instituting and
prosecuting summary proceedings, may be sent by Landlord to Tenant monthly, or
immediately, at Landlord's option, and, shall be due and payable in accordance
with the terms of such bills.
ARTICLE 30
BROKER
30.01. Tenant covenants, warrants, and represents that there was no
broker except CB Xxxxxxx Xxxxx, Inc. ("Broker") instrumental in consummating
this Lease and that no conversations or negotiations were had with any broker
except Broker concerning the renting of the Demised Premises. Tenant and
Landlord agrees to hold the other harmless against any claims for a brokerage
commission arising out of any conversations or negotiations had by such
indemnifying party with any broker except Broker. Landlord agrees to pay Broker
pursuant to a separate agreement.
ARTICLE 31
NOTICES
31.01. Any notice, statement, demand, or other communications required
or permitted to be given, rendered, or made by either party to the other,
pursuant to this Lease or pursuant to any applicable law or requirement of
public authority, shall be in writing (whether or not so stated elsewhere in
this Lease) and shall be deemed to have been properly given, rendered or made,
if sent by registered or certified mail, return receipt requested, or a
nationally recognized overnight courier service addressed to the other party at
the address hereinabove set forth (except that after the Commencement Date,
Tenant's address, unless Tenant shall give notice to the contrary, shall be the
Building) and shall be deemed to have been given, rendered, or made on the date
of receipt, or if applicable, the date of rejection of receipt. Either party
may, by notice as aforesaid, designate a different address or addresses for
notices, statements, demands, or other communications intended for it. In the
event of the cessation of any mail delivery for any reason, personal delivery
shall be substituted for the aforedescribed method of serving notices.
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ARTICLE 32
ESTOPPEL CERTIFICATE
32.01. Tenant agrees, when requested by Landlord, to execute and
deliver to Landlord a statement certifying that this Lease is unmodified and in
full force and effect (or if there have been modifications, that the same is in
full force and effect as modified and stating the modifications), certifying the
dates to which the fixed rent and additional rent have been paid, whether any
dispute exists with respect thereto and stating whether or not, to Tenant's best
knowledge, Landlord is in default in performance of any of its obligations under
this Lease, and, if so, specifying each such default of which Tenant may have
knowledge, it being intended that any such statement delivered pursuant hereto
may be relied upon by others. Such statement shall be served upon Landlord by
Tenant within fifteen (15) days of Landlord's request. If Tenant fails to
deliver such notice, Landlord shall be deemed appointed as Tenant's
attorney-in-fact to prepare and deliver such-notice on behalf of Tenant, and
Tenant shall be deemed bound thereby upon Landlord's furnishing a copy of the
notice to Tenant.
ARTICLE 33
ARBITRATION
33.01. The parties hereto shall not be deemed to have agreed to
determination of any dispute arising out of this Lease by arbitration unless
determination in such manner shall have been specifically provided for in this
Lease.
33.02. The party desiring arbitration shall give notice to that effect
to the other party and shall in such notice appoint a person as arbitrator on
its behalf. Within ten (10) days, the other party by notice to the original
party shall appoint a second person as arbitrator on its behalf. The arbitrators
thus appointed shall appoint a third person, and such three arbitrators shall as
promptly as possible determine such matter, provided, however that:
(a) If the second arbitrator shall not have been appointed as
aforesaid, the first arbitrator shall proceed to determine such matter; and
(b) If the two arbitrators appointed by the parties shall be
unable to agree, within ten (10) days after the appointment of the second
arbitrator, upon the appointment of a third arbitrator, they shall give written
notice to the parties of such failure to agree, and, if the parties fail to
agree upon the selection of such third arbitrator within ten (10) days after the
arbitrators appointed by the parties give notice as aforesaid, then within five
(5) days thereafter either of the parties upon notice to the other party may
request such appointment by the American Arbitration Association (or any
organization successor thereto), or in it absence, refusal, failure, or
inability to act, may apply for a court appointment of such arbitrator.
33.03. Each arbitrator shall be a fit and impartial person who shall
have had at least five years' experience in a calling connected with the matter
of dispute.
33.04. The arbitration shall be conducted, to the extent consistent
with this Article, in accordance with the then prevailing rules of the American
35
Arbitration Association (or any organization successor thereto). The arbitrators
shall render their decision and award, upon the concurrence of at least two of
their number, within thirty (30) days after the appointment of the third
arbitrator. Such decision and award shall be in writing and shall be final and
conclusive on the parties, and counterpart copies thereof shall be delivered to
each of the parties. In rendering such decision and award, the arbitrators shall
not add to, subtract from, or otherwise modify the provisions of this Lease.
Judgment may be had on the decision and award of the arbitrator(s) so rendered
in any court of competent jurisdiction.
33.05. Each party shall pay the fees and expenses of the one of the
two original arbitrators appointed by or for such party and the fees and
expenses of the third arbitrator and all other expenses of the arbitration
(other than the fees and disbursement of attorneys or witnesses for each party)
shall be borne by the parties equally.
33.06. Intentionally omitted.
ARTICLE 34
NO OTHER REPRESENTATIONS, CONSTRUCTION, GOVERNING LAW
34.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease. It is
understood and agreed that all understandings and agreements heretofore had
between the parties are merged in the Lease, which alone fully and completely
express their agreements and that the same are entered into after full
investigation, neither party relying upon any statement or representation not
embodied in the Lease made by the other.
34.02. If any of the provisions of this Lease, or the application
thereof to any person or circumstances, shall, to any extent, be invalid or
unenforceable, the remainder of this Lease, or the application of such provision
or provisions to persons or circumstances other than those as to whom or which
it is held invalid or unenforceable, shall not be affected thereby, and every
provision of this Lease shall be valid and enforceable to the fullest extent
permitted by law.
34.03. This Lease shall be governed in all respects by the laws of the
State of New Jersey.
ARTICLE 35
SECURITY
35.01. Tenant shall deposit with Landlord the sum of $462,500.00 upon
the execution of this Lease. Said deposit (sometimes referred to as the
"Security Deposit") shall be held by Landlord as security for the faithful
performance by Tenant of all the terms of the Lease by said Tenant to be
observed and performed. The Security Deposit shall not and may not be mortgaged,
assigned, transferred, or encumbered by Tenant, without the written consent of
Landlord, and any such act on the part of Tenant shall be without force and
36
termination of the Lease as to entitle Tenant to the recovery of the Security
Deposit. If Tenant complies with all of the terms, covenants, and conditions of
the Lease and pays all of the fixed and additional rent and all other sums
payable by Tenant to Landlord as they fall due, the Security Deposit shall be
promptly returned in full to Tenant after the expiration of the term of the
Lease and Tenant's satisfaction of all its obligations accruing prior to the
Lease expiration date. In the event of bankruptcy or other creditor-debtor
proceedings against Tenant, the Security Deposit and all other securities shall
be deemed to be applied first to the payment of fixed and additional rent and
other charges due Landlord for all periods prior to the filing of such
proceedings. In the event of sale by Landlord of the Building, Landlord may
deliver the then balance of the Security Deposit to the transferee of Landlord's
interest in the Demised Premises and Landlord shall thereupon be discharged from
any further liability with respect to the Security Deposit and this provision
shall also apply to any subsequent transferees. No holder of a superior mortgage
to which the Lease is subordinate shall be responsible in connection with the
Security Deposit, by way of credit or payment of any fixed or additional rent,
or otherwise, unless such mortgagee actually shall have received the entire
Security Deposit.
35.02. At Tenant's option, in lieu of a cash Security Deposit, Tenant
may provide Landlord with an unconditional irrevocable letter of credit in a
form reasonably satisfactory to Landlord and issued by a New York or New Jersey
Bank reasonably satisfactory to Landlord. The terms thereof shall permit
Landlord to draw thereupon, upon Landlord's certification and shall contain such
other terms and conditions as are satisfactory to Landlord. Such letter shall be
renewed 30 days prior to its stated expiration and the failure of Tenant to
provide a renewal letter of credit shall entitle Landlord to draw upon the
existing letter of credit within the 30 period prior to its expiration.
ARTICLE 36
PARTIES BOUND
36.01. The obligation of this Lease shall bind and benefit the
successors and assigns of the parties with the same effect as if mentioned in
each instance where a party is named or referred to, except that no violation of
the provisions of Article 8 shall operate to vest any rights in any successor or
assignee of Tenant and that the provisions of this Article shall not be
construed as modifying the conditions of limitation contained in Article 24.
However, except as provided in Article 39 hereof, the obligations of Landlord
under this Lease shall not be binding upon Landlord herein named with respect to
effect and shall not be binding upon Landlord. If any of the fixed or additional
rent herein reserved or any other sum payable by Tenant to Landlord shall be
overdue and unpaid, or if Landlord makes payment on behalf of Tenant, or if
Tenant shall fail to perform any of the terms, covenants, and conditions of the
Lease, then Landlord may, at its option and without prejudice to any other
remedy which Landlord may have on account thereof, appropriate and apply the
entire Security Deposit or so much thereof as may be necessary to compensate
Landlord toward the payment of fixed or additional rent and any loss or damage
37
sustained by Landlord due to such breach on the part of Tenant, plus expenses;
and Tenant shall forthwith upon demand restore the Security Deposit to the
original sum deposited. The issuance of a warrant and/or the re-entering of the
Demised Premises by Landlord for any default on the part of Tenant or for any
other reason prior to the expiration of the term shall not be deemed such a
any period subsequent to the transfer of its interest in the Building as owner
or lessee thereof and in event of such transfer said obligations shall
thereafter be binding upon each transferee of the interest of Landlord herein
named as such owner or lessee of the Building, but only with respect to the
period ending with a subsequent transfer within the meaning of this Article.
36.02. If Landlord shall be an individual, joint venture, tenancy in
common, partnership, unincorporated association, or other unincorporated
aggregate of individuals and/or entities or a corporation, Tenant shall look
only to such Landlord's estate and property in the Building (and the rents and
the proceeds thereof) and, where expressly so provided in this Lease, to offset
against the rents payable under this Lease for the collection of a judgment (or
other judicial process) which requires the payment of money by Landlord in the
event of any default by Landlord hereunder. No other property or assets of such
Landlord shall be subject to levy, execution or other enforcement procedure for
the satisfaction of Tenant's remedies under or with respect to this Lease, the
relationship of Landlord and Tenant hereunder or Tenant's use or occupancy of
the Demised Premises. Further, Tenant agrees that Landlord shall not be liable
to Tenant for any special, indirect, or consequential damages arising out of
Landlord's breach of this Lease. Landlord agrees that Tenant shall not be liable
to Landlord for any special, indirect or consequential damages arising out of
Tenant's breach of this Lease, however, rents, restoration charges, interest,
late charges, fees, reimbursements, damages incurred by Landlord as a result of
Tenant holding over and other damages provided for in Article 26 shall not be
considered special, indirect or consequential damages.
ARTICLE 37
CONSENTS
37.01. Wherever it is specifically provided in this Lease that a
party's consent is not to be unreasonably withheld, a response to a request for
such consent shall also not be unreasonably delayed. If either Landlord or
Tenant considers that the other had unreasonably withheld or delayed a consent,
it shall so notify the other party within ten (10) days after receipt of notice
of denial of the requested consent or, in case notice of denial is not received,
within twenty (20) days after making its request for the consent.
37.02. Intentionally omitted.
ARTICLE 38
MORTGAGE FINANCING - TENANT COOPERATION
38.01. In the event that Landlord desires to seek mortgage financing
secured by the Demised Premises, Tenant agrees to cooperate with Landlord in the
making of any application(s) by Landlord for such financing including the
delivery to Landlord's mortgage broker or mortgagee, of such information as they
shall require with respect to Tenant's occupancy of the Demised Premises,
including, but not limited to the current financial statement of Tenant, but
Tenant shall not be required to deliver such information directly to Landlord,
all of the above to be at no cost and expense of Tenant. In the event that
Landlord's mortgagee shall request changes to the within Lease in order to make
same acceptable to Landlord's mortgagee, Tenant agrees to consent to such
changes, provided such changes shall not affect the term of this Lease nor the
financial obligations of Tenant hereunder, nor otherwise adversely affect
38
Tenant's rights hereunder. The request by such mortgagee for notice of
Landlord's defaults and reasonable opportunity to cure shall not be deemed
adverse.
ARTICLE 39
ENVIRONMENTAL COMPLIANCE
39.01. Tenant shall, at Tenant's sole cost and expense, comply with
the New Jersey Industrial Site Recovery Act and the regulations promulgated
thereunder (referred to as "ISRA") as same relate to Tenant's occupancy of the
Demised Premises, as well as all other state, federal or local environmental
law, ordinance, rule, or regulation either in existence as of the date hereof or
enacted or promulgated after the date of this Lease, that concern the
management, control, discharge, treatment and/or removal of hazardous discharges
or otherwise affecting or affected by Tenant's use and occupancy of the Demised
Premises. Tenant represents that Tenant's SIC number does not subject it to
ISRA. Tenant shall, at Tenant's own expense, and where required by such law,
make all submissions to, provide all information to, and comply with all
requirements of the Bureau of Industrial Site Evaluation (the "Bureau") of the
New Jersey Department of Environmental Protection ("NJDEP"). Should the Bureau
or any other division of NJDEP, pursuant to any other environmental law, rule,
or regulation, determine that a cleanup plan be prepared and that a cleanup be
undertaken because of any spills or discharge of hazardous substances or wastes
at the Demised Premises which occur during the term of this Lease and were
caused by Tenant or its agents or contractors, then Tenant shall, at Tenant's
own expense prepare and submit the required plans and financial assurances, and
carry out the approved plans. In the event that Landlord shall have to comply
with ISRA by reason of Landlord's actions, Tenant shall promptly provide all
information requested by Landlord for preparation of non-applicability
affidavits or a Negative Declaration and shall promptly sign such affidavits
when requested by Landlord. Tenant shall indemnify, defend, and save harmless
Landlord 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 at the Demised Premises which occur during the
term of this Lease and were caused by Tenant or its agents or contractors, and
from all fines, suits, procedures, claims, and actions of any kind arising out
of Tenant's failure to provide all information, make all submissions and take
all actions required by the Bureau or any other division of NJDEP where required
by law to do so. Tenant's obligations and liabilities under this Paragraph shall
continue so long as Landlord remains responsible for any spills or discharges of
hazardous substances or wastes at the Demised Premises which occur during the
term of this Lease and were caused by Tenant or its agents or contractors.
Tenant's failure to abide by the terms of this paragraph shall be restrainable
by injunction. Tenant shall have no responsibility to obtain a "Negative
Declaration" or "Letter of Non-Applicability" from the NJDEP if the sole reason
for obtaining same is in connection with a sale or other disposition of the real
estate by Landlord but Tenant agrees to cooperate with Landlord in Landlord's
effort to obtain same and shall perform at Tenant's expense any clean up
required by reason of Tenant's use and occupancy of the Demised Premises.
39.02. Landlord represents and warrants to the best of its knowledge,
that the Building, Demised Premises and Land and their existing and prior uses
shall, as of the last Rent Commencement Date comply with, and Landlord has, to
the best of its knowledge, not been in violation of, and has not violated, in
connection with the ownership, use and maintenance or operation of the Building,
39
Demised Premises or Land and the conduct of the business related thereto, any
applicable federal, state, country or local statutes, laws, regulations rules,
ordinances, codes, standards, orders, licenses and permits of any governmental
authorities relating, without limitation, to fire, health, safety and
environmental matters (collectively, "Laws"). In the event that the Building,
the Demised Premises and Land are not in compliance with any Laws as of the last
Rent Commencement Date (provided that such noncompliance is not attributable to
any act or omission of the Tenant or any of the Tenant Parties), then Landlord
shall at its expense promptly comply with any such Law. If Landlord shall
default in its obligations under this Section 39.02, Tenant may proceed in
accordance with Section 26.04.
39.03. Landlord shall indemnify, defend, and save harmless Tenant 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 at the Demised Premises which occurred or were on the Land, Building
and/or Demised Premises prior to the term of this Lease, or which occur during
the term of this Lease and were caused by Landlord or its agents or contractors,
and from all fines, suits, procedures, claims, and actions of any kind arising
out of Landlord's or Landlord's agents failure to provide all information, make
all submissions and take all actions required by the Bureau or any other
division of NJDEP. This paragraph shall survive the termination of this Lease.
39.04. As a condition precedent to entering into this Lease, Landlord
represents and warrants to Tenant that (i) neither the Building or the Demised
Premises, nor the Land have been used by Landlord to dump, discard, landfill,
deposit or dispose of any substance material above, on or below ground which is
toxic or hazardous to human health, which would constitute unlawful disposal
and/or which would require clean up, removal or special disposal under current
federal and/or state environmental laws or regulations; nor to Landlord's
knowledge has there been any such occurrence; (ii) to Landlord's knowledge there
are no underground tanks or toxic hazardous substances used in or about the
Building, Land or Demised Premises including, but not limited to PCB's,
asbestos, Urea Formaldehyde Foam Insulation or the like; and (iii) to Landlord's
knowledge, the Building, Demised Premises and the Land are in full compliance
with all laws, including but not limited to, all applicable rules and
regulations related thereto. Landlord shall indemnify and hold Tenant harmless
from and against any liabilities, losses and costs, including Tenant's
reasonable attorney's fees, which Tenant may incur by reason of Landlord's beach
of the foregoing warranties and representations and shall, at Landlord's sole
cost and expense, immediately remove any hazardous substance from the Demised
Premises which is not attributable to the acts or omissions of Tenant, its
agents, contractors, invitees and employees. The foregoing provisions shall
survive the termination, expiration or cancellation of this Lease.
ARTICLE 40
HOLDING OVER
40.01. Tenant will have no right to remain in possession of all or
part of the Demised Premises after the expiration of the term. If Tenant remains
in possession of all or any part of the Demised Premises after the expiration of
the Lease, without the express consent of Landlord: (a) such tenancy will be
deemed to be a periodic tenancy from month-to-month only; (b) such tenancy will
not constitute a renewal or extension of this Lease for any further term; and
(c) such tenancy may be terminated by Landlord upon the earlier of (i) thirty
40
(30) days prior written notice, or (ii) the earliest date permitted by law. In
such event, monthly rent will be increased to an amount equal to one hundred
fifty percent (150%) of the monthly rent payable during the last month of the
term for the first month of holdover, and thereafter to two hundred percent
(200%) of the monthly rent payable during the last month of the term for each
subsequent month of holdover, and any other sums due under this Lease will be
payable in the amount and at the times specified in this Lease. Such
month-to-month tenancy will be subject to every other term, condition, and
covenant contained in this Lease. The provisions of this Section shall not be
construed to relieve Tenant from liability to Landlord for damages resulting
from any such holding over in excess of thirty (30) days (it being understood
that Tenant shall have no liability for such damages accruing during the initial
thirty days of holdover), or preclude Landlord from implementing summary
dispossess proceedings. Tenant further acknowledges that its failure to perform
any restoration required of it under this Lease shall be deemed the same as its
remaining in possession of the Demised Premises after the expiration of the
term, subjecting it to hold-over rent in accordance with this Section 40.02.
40.02 Landlord and Tenant agree that the following specific provision
shall apply in connection with any holdover claim due solely to restoration.
Upon request by Tenant, Landlord and Tenant agree that ninety (90) days prior to
the Expiration Date, Landlord and Tenant shall conduct a walk through of the
Demised Premises. At such walk through, Landlord shall re-confirm to Tenant the
restoration which it required pursuant to the terms of this Lease. Tenant
acknowledges that certain of the restoration may in fact take a longer period
than ninety (90) days to perform but that such period shall have no significance
to the terms and conditions hereof. Tenant shall then have any one of the
following three options:
A. Perform the restoration by the Expiration Date;
B. Pay to Landlord an amount which Landlord or X. Xxxxxxx Co.,
Inc. states in writing is the amount due for restoration, which payment shall be
made by the Expiration Date, in which event Tenant shall have no further
obligation for restoration and shall not be deemed a holdover, or
C. Take no action. In the event Tenant takes no action, Landlord
agrees that it shall perform the restoration within a reasonable commercial time
period after the Expiration Date. Tenant shall pay holdover rent to Landlord
from and after the Expiration Date until such time as Landlord completes the
restoration. Tenant shall still remain liable for the actual costs of
restoration. This Section shall not in any way limit Landlord's rights with
respect to any other holdover event nor shall it be applicable if the Lease is
terminated early by reason of Tenant's default.
ARTICLE 41
CERTAIN DEFINITIONS AND CONSTRUCTIONS
41.01. For the purpose of this Lease and all agreements supplemental
to this Lease, unless the context otherwise requires, the definitions set forth
in Exhibit F annexed hereto shall be utilized.
41.02. The various terms which are italicized and defined in other
Articles of this Lease or are defined in Exhibits annexed hereto, shall have the
41
meanings specified in such other Articles and such Exhibits for all purposes of
this Lease and all agreements supplemental thereto, unless the context shall
otherwise require.
41.03. The submission of this Lease for examination does not
constitute a reservation of, or option for, the Demised Premises, and this Lease
becomes effective as a Lease only upon execution and delivery thereof by
Landlord and Tenant.
41.04. The Article headings in this Lease and the Index prefixed to
this Lease are inserted only as a matter of convenience in reference and are not
to be given any effect whatsoever in construing this Lease.
ARTICLE 42
OPTION TO RENEW
42.01. Provided that Tenant is not then in default of the terms,
covenants, and provisions of this Lease, Landlord hereby grants to Tenant the
right to renew the term of this Lease for one (1) additional period of five (5)
years (the "Renewal Period") commencing on the day after the initial Expiration
Date upon the same terms and conditions as set forth in this Lease other than
the fixed annual rental which shall be the Fair Market Rental of the Demised
Premises at the time of the commencement of the Renewal Period, adjusting as
necessary for the lapse of time between the date of Tenant's notification of
intent to exercise its option to renew and the date on which the Renewal Period
is scheduled to commence but in no event shall be less than the fixed rent
during the initial term. Said fixed annual rental shall be payable in equal
monthly installments in advance on the first day of each and every month of the
Renewal Period. Tenant shall exercise the within Option by giving written notice
to Landlord not later than nine (9) months prior to the initial Expiration Date,
TIME BEING OF THE ESSENCE. If Tenant fails to give such notice, Tenant will be
deemed to have waived such Renewal Option and the provisions of this Section
shall be null and void. Fair Market Value shall mean the rents obtainable for
comparable space in the Red Bank, New Jersey market area.
ARTICLE 43
SATELLITE DISH
43.01 Permission is granted, free of rental charge, for the Tenant to
install one (1) satellite dish not to exceed two one-half (2 1/2) feet in
diameter nor protrude above the lowest part of the roof line by more than 4
feet, including all cable, wiring, conduits and related equipment necessary for
the reception (but not the transmission) of radio and satellite-generated
television transmissions (collectively the "Antenna") at the Demised Premises on
the roof of the Building, at Tenant's sole cost and expense, subject to the
following restrictions:
(a) The location and means of securing the Antenna must be
approved by Landlord or its designated agent, and such location shall be
selected with the goal of minimizing its visual impact. Roof penetration will
not be accepted except if performed by Landlord or its designated agent, all at
Tenant's sole cost and expense. Tenant shall be responsible for any damage to
42
the Building roof or any surrounding property resulting from the installation or
operation of the Antenna, including, but not limited to, damage resulting from
wind, ice or any other causes. The Antenna shall not damage the Building or the
system of communication devised by any other user authorized by Landlord or
users at neighboring properties. If such damage or interference shall occur,
Tenant shall correct same promptly.
(b) Prior to installation, Tenant must provide Landlord with a
copy of all zoning or use approvals which may be required, including, without
limitation, any Federal Communications Commission ("FCC") licenses or approvals.
Landlord agrees to reasonably cooperate with Tenant in such regard, all without
cost to Landlord.
(c) Tenant agrees to maintain the Antenna in a proper and safe
operating condition and shall procure separate liability insurance naming
Landlord as an additional insured.
(d) Tenant shall comply with all applicable codes, rules,
regulations and conditions of the FCC, Federal Aviation Agency, and local
governmental agencies, and shall pay for all legal, engineering and other
expenses incident thereto including all matters relating to hearings pursuant to
the Municipal Land Use Law.
(e) Installation of the Antenna shall be performed in a
responsible and workmanlike manner by a recognized professional satellite dish
installer at Tenant's sole cost and expense, through or under the supervision of
Landlord. Prior thereto, Tenant shall provide complete structural details signed
and sealed by an appropriately licensed engineer of the State of New Jersey, as
well as a sketch of the roof showing the proposed location of the antenna and
all relevant distances and heights. Landlord's supervision fee and, if the
presence or advice of Landlord's building engineer is required, Landlord's
building engineer fee, shall be reimbursed to Landlord by Tenant for actual time
spent by Landlord's architect and building engineer at prevailing rates. Prior
to installation, Tenant shall provide Landlord with a copy of its FCC
construction permit, license, or evidence of authority to operate from this
location. Landlord shall have final approval with respect to, as well as the
right to perform at Tenant's cost and expense, all roof penetrations and
repairs.
(f) Installations or substitutes shall meet all codes and shall
be made using Teflon wire (or by running wires through approved conduits),
rust-proof clamps, non-rustable hardware U-bolts, or other similar devices of
the highest quality commonly found in the industry, capable of the bearing of
the stress and strain of the installation without impairing use and occupancy of
the Building and without adverse aesthetic impact upon any portion of the
Demised Premises.
(g) Tenant shall be responsible for any costs associated with
furnishing electricity for the Antenna.
(h) Tenant shall not sublet, license or otherwise permit any
third party use of the Antenna.
(i) Access to the Antenna for inspection, servicing or any other
reason will only be allowed with prior permission and supervision by Landlord or
its agents and Tenant shall reimburse Landlord and/or its agents at prevailing
rates (during normal business hours) for time spent by Landlord and/or its
agents.
43
(j) Landlord reserves the right to require the removal of the
Antenna at such time as the Landlord may have made provisions for acceptable
alternative arrangements, subject to Tenant's consent as to what constitutes an
acceptable alternative arrangement, which consent shall not be unreasonably
withheld. Landlord shall provide Tenant with prior notice of the amount of time,
if any, satellite services would be interrupted and coordinate work with Tenant
to avoid interruption of Tenant's business.
(k) Tenant shall remove the Antenna and restore the roof to its
original condition at the earlier of Tenant's cessation of use of the Antenna or
the expiration of the term of this Lease or any renewal term thereof, at
Tenant's sole cost and expense, notwithstanding any other provision of the
44
Lease. The Antenna shall, at all times, remain the property of Tenant and Tenant
shall have the right to remove it at any time, subject to the terms and
conditions herein.
(l) Tenant acknowledges that it has been advised by Landlord that
a new roof was installed at the Building which is still the subject of a
manufacturers/installers warranty/guarantee. Tenant must install, maintain and
remove the Antenna in such a manner as to be consistent with said
warranty/guarantee and not perform or fail to perform any act which would void,
or cause to be voidable, Landlord's warranty/guarantee.
(m) Tenant shall be responsible for implementing appropriate
screening as required by Landlord.
(n) Tenant agrees to indemnify, defend and hold Landlord harmless
from any claim resulting from property damage or personal injury arising in
connection with the installation, maintenance, existence or removal of the
Antenna and shall carry insurance to cover such liability and property damages.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this
Lease as of the day and year first above written.
WITNESS: LANDLORD:
SHAV ASSOCIATES
a New Jersey Partnership
------------------------------- /s/ Xxxxxxx Xxxxxxx
--------------------------------
By: Xxxxxxx Xxxxxxx
Title: General Partner
ATTEST: TENANT:
GLOBESPAN, INC.
a Delaware Corporation
------------------------------- /s/ Xxx XxXxxxxx
--------------------------------
By: Xxx XxXxxxxx
Title: CFO
45
ADDENDUM TO LEASE BETWEEN
SHAV ASSOCIATES, AS LANDLORD AND
GLOBESPAN, INC., AS TENANT
000 XXXXXX XXXXX
XXX XXXX, XXX XXXXXX
Landlord and Tenant agree that this Addendum is hereby made a part of and is
attached to that certain Lease between Landlord and Tenant respecting 000 Xxxxxx
Xxxxx, Xxx Xxxx, XX. This Addendum shall be deemed dated as of the same date of
the Lease to which it is attached.
Landlord and Tenant agree that the Lease shall contain the following additional
articles:
ARTICLE 44
RIGHT OF FIRST NEGOTIATION
44.01. Provided Tenant is not in default of this Lease, upon
reasonable written request of Tenant, Landlord shall provide Tenant with a list
of existing leases setting forth termination dates and option periods, if any,
on any space in Tri-Park Corporate Park. Landlord and Tenant agree to negotiate
towards a fair market value rental as well as acceptable lease terms and
conditions, for any space which Tenant notifies Landlord it is interested in
renting and is available or will become available, subject to the rights of
other tenants in Tri-Park Corporate Park. For purposes of this Section, "rights"
of existing tenants shall include an existing tenant's right of first refusal,
an option to expand, an option to renew, or a renewal of an existing lease
whether or not pursuant to an option. The foregoing shall not obligate either
Landlord or Tenant to enter into a lease for any space which is the subject of
negotiation by Landlord or Tenant pursuant to the foregoing, and the Landlord
shall be free to lease such space to any third party even though such
negotiations are ongoing.
ARTICLE 45
TAX APPEALS
45.01 By way of supplement to Article 5A, Tenant shall have the right
to file and prosecute a tax appeal respecting the Demised Premises subject to
and in accordance with the terms and conditions set forth in this Article.
45a
45.02 Not less than 60 days prior to the deadline for filing a tax
appeal, Tenant shall notify Landlord that it intends to file a tax appeal.
Within 30 days after receipt of such notice Landlord shall have the right to
notify Tenant that it will file the tax appeal, but only if Landlord intends to
file a tax appeal regarding 000 Xxxxxx Xxxxx and/or the 000 Xxxx Xxxx Xxxx
buildings in Tri-Park Corporate Park. By giving such notice, Landlord shall be
obligated to file the tax appeal for the Demised Premises and 000 Xxxxxx Xxxxx
and/or 000 Xxxx Xxxx Xxxx. Such appeal and the prosecution thereof shall be at
Landlord's initial cost and expense; provided however, that if the appeal serves
to reduce the real estate taxes on the Demised Premises, then Tenant shall, at
the conclusion of the matter, reimburse Landlord for its prorata share (either
one half or one third - depending upon the number of properties appealed) of alt
costs and expenses incurred by Landlord in the prosecution of the appeal,
including filing fees, court costs, legal fees and the cost of appraisals and
expert witnesses but in no event shall such reimbursement exceed the savings
realized by Tenant. In the event the appeal results in an increase in real
estate taxes respecting the Demised Premises, then Tenant shall be obligated to
pay such increase. Upon request, Landlord agrees to notify Tenant as to the
status of the tax appeal. Notwithstanding the foregoing, in no event shall
Tenant be permitted to file a tax appeal respecting the last 12 months of the
term of this Lease, nor shall Tenant be permitted to enter into any settlement
regarding a tax appeal which will affect the real estate taxes beyond the
Expiration Date of this Lease.
45.03 If Landlord does not elect to file the tax appeal in accordance
with Section 45.02, then Tenant shall have the right to file and proceed with
the tax appeal at its sole cost and expense. In the event the appeal results in
an increase in real estate taxes respecting the Demised Premises, then Tenant
shall be obligated to pay such increase. Upon request, Tenant agrees to notify
Landlord as to the status of the tax appeal.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
WITNESS: LANDLORD
SHAV ASSOCIATES
a New Jersey Partnership
--------------------------------- /s/ Xxxxxxx Xxxxxxx
------------------------------------
By: Xxxxxxx Xxxxxxx
Title: General Partner
ATTEST: TENANT:
GLOBESPAN, INC.
a Delaware Corporation
--------------------------------- /s/ Xxx XxXxxxxx
------------------------------------
By: Xxx XxXxxxxx
Title: CFO
45b
EXHIBIT A
DESCRIPTION OF LAND
000 XXXXXX XXXXX
ALL that certain tract or parcel of land and premises, situate, lying and being
in the Township of Middletown, in the County of Monmonth, State of New Jersey,
more particularly described herein.
BEING known and designated as Lot 2 in Block 296, on a map entitled "Final Map
for (the SHAV Corporation consisting of Lots 16, l6-D, 17, 18 and 19 in Block
000, Xxxxxxxxxx Xxx, Xxxxxxxx Co." dated June 2, 1980 and filed December 1, 1980
in the Monmouth County Clerk's Office as Case 170-6.
BEING more particularly described in accord with said filed map as follows:
BEGINNING at the point of intersection of the northerly line of the Garden State
Parkway and the westerly line of Xxxxxx Drive as marked by a monument and
running thence:
1. North 52 degrees 20' 10" West for a distance of 185.59 feet to Garden State
Parkway Monument #A-165; thence
2. North 47 degrees 42' 50" West for a distance of 374.45 feet to Garden State
Parkway Monument #A-167; thence
3. North 34 degrees 29' 19" West for a distance of 90.96 feet to a monument;
thence
4. North 2 degrees 51' 30" West for a distance of 258.85 feet; thence
5. South 87 degrees 26' 27" East for a distance of 313.90 feet; thence
6. South 7 degrees 42' 18" West for a distance of 34.64 feet; thence
7. South 82 degrees 17' 42" East for a distance of 265.00 feet to the said
westerly line of Xxxxxx Drive; thence
8. South 7 degrees 42' 18" West for a distance of 620.57 feet along the said
westerly line of Xxxxxx Drive to the place and point of Beginning.
Being now known as Xxx 00, Xxxxx 0000, as shown on the Tax Maps of the Township
of Middletown.
Subject to easements, restrictions and covenants of record and such state of
facts as an accurate survey may reveal.
LAND100S
02/20/01
EXHIBIT F
DEFINITIONS
(a) The term "mortgage" shall mean an indenture of mortgage and deed
of trust to a trustee to secure an issue of bonds, and the term "mortgagee"
shall mean such a trustee.
(b) The terms "include," "including," and "such as" shall each be
construed as if followed by the phrase "without being limited to."
(c) References to Landlord as having no liability to Tenant or being
without liability to Tenant, shall mean the Tenant is not entitled to terminate
this Lease, or to claim actual or constructive eviction, partial or total, or to
receive any abatement or diminution of rent, or to be relieved in any manner of
any of its other obligations hereunder, or to be compensated
(d) The term laws and/or requirements of public authorities and words
of like import shall mean laws and ordinances of any or all of the Federal,
state, city, county, and borough governments and rules, regulations, orders
and/or directives of any or all departments, subdivisions, bureaus, agencies, or
office thereof, or of any other governmental, public, or quasipublic
authorities, having jurisdiction in the premises, and/or the direction of any
public officer pursuant to law.
(e) The term requirements of insurance bodies and words of like import
shall mean rules, regulations, orders, and other requirements of the New Jersey
Board of Fire Underwriters and/or similar body performing the same or similar
functions and having jurisdiction or cognizance of the Building and/or the
Demised Premises.
(f) The term repair shall be deemed to include restoration and
replacement as may be necessary to achieve and/or maintain good working order
and condition.
(g) Reference to termination of this Lease includes expiration or
earlier termination of the term of this Lease or cancellation of this Lease
pursuant to any of the provisions of this Lease or to law. Upon a termination of
this Lease, the term and estate granted by this Lease shall end at noon of the
date of termination as if such date were the date of expiration of the term of
this Lease and neither party shall have any further obligation or liability to
the other after such termination (i) except as shall be expressly provided for
in this Lease, or (ii) except for such obligation as by its nature or under the
circumstances can only be, or by the provisions of this Lease, may be performed
after such termination and, in any event, unless expressly otherwise provided in
this Lease, any liability for a payment which shall have accrued to or with
respect to any period ending at the time of termination shall survive the
termination of this Lease.
1F
