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Exhibit 10.39
LEASE BETWEEN
XXXXX-PW HOTEL LIMITED PARTNERSHIP,
as Landlord
and
PAINEWEBBER INCORPORATED
as Tenant
Premises:
Hotel/Office Building
Bldg. B
LINCOLN HARBOR PROJECT
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INDEX
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ARTICLE PAGE
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1. Definitions ......................................... 1
2. Demise and Term ..................................... 7
3. Rent ................................................ 8
4. Use of Building ..................................... 9
5. Preparation of Building ............................. 10
6. Tax and Operating Expense Payments .................. 12
7. Common Areas ........................................ 16
8. Labor Harmony ....................................... 17
9. Subordination ....................................... 17
10. Quiet Enjoyment ..................................... 20
11. Assignment, Subletting and Mortgaging ............... 20
12. Compliance with Laws ................................ 24
13. Insurance and Indemnity ............................. 25
14. Rules and Regulations ............................... 30
15. Alterations ......................................... 31
16. Landlord's and Tenant's Property .................... 33
17. Repairs and Maintenance ............................. 34
18. Electric Energy ..................................... 35
19. Heat, Ventilation & Air Conditioning ................ 36
20. Other Services: Service Interruption ............... 36
21. Access, Changes and Name ............................ 36
22. Mechanic's Liens and Other Liens .................... 37
23. Non-Liability and Indemnification ................... 37
24. Damage or Destruction ............................... 38
25. Eminent Domain ...................................... 43
26. Surrender ........................................... 46
27. Conditions of Limitation ............................ 46
28. Re-Entry by Landlord ................................ 48
29. Damages ............................................. 49
30. Affirmative Waivers ................................. 52
31. No Waivers .......................................... 52
32. Curing Tenant's Defaults ............................ 53
33. Broker .............................................. 53
34. Notices ............................................. 54
35. Estoppel Certificates ............................... 54
36. Arbitration ......................................... 55
37. Memorandum of Lease ................................. 55
38. Miscellaneous ....................................... 56
39. Extension of Term ................................... 60
40. Determination of Fair Market Rent ................... 62
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Exhibits
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Exhibit "A" Description of the Building
Exhibit "B" Demised Premises
Exhibit "C" Fixed Rent
Exhibit "D" Floor Space
Exhibit "E" Land
Exhibit "F" Landlord's Work
Exhibit "G" Loan Terms
Exhibit "H" Operating Expenses
Exhibit "I" Plans and Specifications
Exhibit "J" Tenant's Work
Exhibit "K" Lincoln Harbor Project
Exhibit "L" Parking Plan
Exhibit "M-1" Form of Superior Mortgage Subordina-
tion, Nondisturbance and Attornment
Agreement
Exhibit "M-2" Form of Ground Lessor Superior Lessor
Subordination, Nondisturbance and
Attornment Agreement
Exhibit "N" Form of Ground Lessor Nondisturbance
Agreement
Exhibit "O" Cleaning Standards
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Lease, dated April 14, 1986 between XXXXX-PW HOTEL LIMITED PARTNERSHIP,
a New Jersey limited Partnership, having an office at 000 Xxxxx Xxxxx, Xxxx
Xxxxxx Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000 and PAINEWEBBER INCORPORATED, a
Delaware corporation having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000.
ARTICLE 1 - DEFINITIONS
1.01 As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be Part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
B. Architect: Xxxxxxx Xxxx Xxxxx, or as Landlord may designate, subject
to Tenant's approval, which approval shall not be unreasonably withheld or
delayed.
C. Architect's Certificate: The certificate to be issued by Architect
either (i) if Landlord is not designated by Tenant to perform Tenant's Work,
that Landlord's Work has been completed in accordance with the Plans and
Specifications, to the extent necessary so that Tenant may commence Tenant's
Work, or (ii) if Landlord is designated by Tenant to perform Tenant's Work, that
the Building and the Demised Premises have been Substantially Completed in
accordance with the Plans and Specifications.
D. Broker: Xxxxxx Xxxxxx & Associates Incorporated.
E. Building: The building to be located on the Land as more
particularly described on the plan attached hereto as Exhibit "A" and made a
Part hereof.
F. Calendar Year: Any twelve-month period during the term of this Lease
commencing on a January 1.
G. Commencement Date: The earlier of (a) (i) if Landlord is not
designated by Tenant to perform Tenant's Work, six (6) months from the
completion of the core and shell of the Building to the extent necessary so that
Tenant may commence Tenant's Work, together with the
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delivery of Architect's Certificate, or (ii) if Landlord is designated to
perform Tenant's Work, the date on which Landlord Substantially Completes
Tenant's Work and delivers the Demised Premises to Tenant, provided, however,
that in the case of (i) or (ii) above, the Commencement Date shall not occur
prior to the thirtieth (30th) day after delivery of the Commencement Notice, nor
earlier than January 1, 1999, (b) the date Tenant, or anyone claiming under or
through Tenant, first occupies the Demised Premises or any part thereof and is
open for business, provided that in such event, the Commencement Date shall be
deemed to have occurred only for the floors of the Demised Premises actually so
occupied and provided further that if Tenant shall occupy any part of the
Demised Premises and shall be open for business prior to January 1, 1989, the
Commencement Date shall not be deemed to have occurred until January 1, 1989,
provided that Tenant shall occupy the Demised Premises on all of the terms and
conditions of this Lease and Tenant shall pay as rent hereunder an amount equal
to the product of fifty cents (50cts) and the Floor Space per month as well as
all Additional changes incurred pursuant to the provisions hereof for every
month or portion thereof commencing on the date Tenant shall so occupy the
Demised Premises or any portion thereof and be open for business and terminating
on the day prior to the Commencement Date, or (c) the date upon which the
Commencement Date would have occurred under (a) above, but for delays caused by
the Tenant.
H. Commencement Notice: Thirty (30) days prior written notice from
Landlord to Tenant (i) if Landlord is not designated by Tenant to perform
Tenant's Work, of the date on which Landlord's Work shall be completed to the
extent necessary so that Tenant may commence Tenant's Work, or (ii) if Landlord
is designated by Tenant to perform Tenant's Work, of the date on which the
Building and the Demised Premises shall be Substantially Completed.
I. Common Areas: All areas, spaces and improvements in the Building
(other than the Demised Premises) and/or on the Land, which Landlord makes
available from time to time for the common use and benefit of the tenants and
occupants of the Building, including, without limitation, lobbies, hallways (but
not the lobby (it being understood that a portion of the hotel lobby may be used
in connection with the office portion of the Build-
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ing and, accordingly, such common portion shall be part of the Common Areas) or
hallways of the hotel portion of the Building), and planted areas, if any.
J. Demised Premises: As defined on Exhibit "B" annexed hereto and made
a part hereof.
K. Expiration Date: The date that is the day before the twenty-fifth
(25th) anniversary of the latest to occur of (i) the Commencement Date, or (ii)
the Commencement Date (as such term is defined in the Data Processing Lease,
dated of even date herewith, between Xxxxx-PW Limited Partnership, as landlord,
and Tenant as tenant (the "Data Processing Lease")) of the Data Processing
Lease, or (iii) the Commencement Date (as such term is defined in the Office
Lease) of the Office Lease, if the later to occur of such dates is the first day
of a month, or the twenty-fifth (25th) anniversary of the last day of the month
in which the later to occur of such dates is not the first day of a month.
However, if the Term is extended by the Tenant's effective exercise of any
Renewal Option, the "Expiration Date" shall be changed to the last day of the
applicable Renewal Term. For the purpose of this definition, the earlier
termination of this Lease shall not affect the "Expiration Date."
L. Fixed Rent: As set forth on the Rent Schedule on Exhibit "C" annexed
hereto and made a part hereof as redetermined pursuant to Section 39.02 hereof.
M. Fixed Rent Commencement Date: The date(s) which is the first
anniversary of the Commencement Date (or Dates) subject to adjustment as
provided in Section 5.05 hereof.
N. Floor Space: 141,669, as the same may be increased or decreased
pursuant to Section 38.13 hereof, and as more particularly set forth on Exhibit
"D" annexed hereto and made a part hereof.
O. Ground Lease: The Agreement of Lease, dated of even date herewith,
between Ground Lessor, as landlord, and Landlord, as tenant, pursuant to which
Ground Lessor, leased the Land to Landlord.
P. Ground Lessor: Xxxxx Mountain Industries, Inc. ("Xxxxx"), its
successors and assigns.
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Q. Insurance Requirements: Rules, regulations, orders and other
requirements of the applicable board of underwriters and/or the applicable fire
insurance rating organization and/or any other similar body performing the same
or similar functions and having jurisdiction or cognizance over the Land and
Building, whether now or hereafter in force.
R. Land: The land described on Exhibit "E" annexed hereto and made a
part hereof.
S. Landlord: On the date as of which this Lease is made, shall mean
Xxxxx-PW Hotel Limited Partnership, a New Jersey limited partnership, having an
address at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, but thereafter
"Landlord" shall mean only the ground lessee under the Ground Lease or if the
Ground Lease shall have ceased to exist, the fee owner of the Land, or if there
shall exist another Superior Lease or Leases, the tenant under the Superior
Lease immediately prior in estate to this Lease.
T. Landlord's Work: The materials and work to be furnished, installed
and performed by Landlord at its expense in accordance with the provisions of
Exhibit "F" annexed hereto and made a part hereof in accordance with the Plans
and Specifications.
U. Legal Requirements: Laws and ordinances of all federal, state and
local governments, and rules, regulations, orders and directives of all
departments, subdivisions, bureaus, agencies or offices thereof, and of any
other governmental authorities having jurisdiction over the Land and Building.
V. Mortgage: The mortgage creating a lien on the leasehold estate
created by the Ground Lease, to be entered into pursuant to a loan commitment
substantially on the terms set forth in the schedule annexed hereto as Exhibit
"G" and made a part hereof, and any replacement, extension, modification or
amendment thereto.
W. Operating Expenses: An amount equal to the costs and expenses for
the items set forth on Exhibit "H" annexed hereto and made a part hereof.
X. Permitted Uses: General and executive office use and all uses
incidental to securities trading
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and land sales (including without limitation, retail securities trading and
sales) including, without limitation, operation of trading floors and trading
support systems.
Y. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
Z. Plans and Specifications: The schematics annexed hereto as Exhibit
"I" and made a part hereof which have been approved by Tenant and all plans and
specifications developed for the Building, which shall be subject to Tenant's
prior written approval, which approval shall not be unreasonably withheld or
delayed.
AA. Project Common Areas: All areas, spaces and improvements in the
Lincoln Harbor Project (other than those located on the Land) which are made
available from time to time for the common use and benefit of the tenants and
occupants or the Lincoln Harbor Project, including, without limitation,
non-exclusive parking areas, roads, walkways, sidewalks and landscapes and
planted areas, if any.
BB. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Demised Premises by any federal, state, municipal
or other governments or governmental bodies or authorities. If at any time
during the Term the methods of taxation prevailing on the date hereof shall be
altered so that in lieu of, or as an addition to or as a substitute for, the
whole or any part of such real estate taxes, assessments and special assessments
now imposed on real estate there shall be levied, assessed or imposed on
Landlord specifically in substitution for any of the foregoing Real Estate Taxes
(a) a tax, assessment, levy, imposition, license fee or charge wholly or
partially as a capital levy or otherwise on the rents received therefrom, or (b)
any other such additional or substitute tax, assessment, levy, imposition or
charge, then all such taxes, assessments, levies, impositions, fees or charges
or the part thereof so measured or based shall be deemed to be included within
the term "Real Estate Taxes" for the purposes hereof, calculated as if
Landlord's only asset were the leasehold estate created by the Ground Lease.
CC. Renewal Options: Shall have the meaning set forth in Section 39.01
hereof.
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DD. Renewal Terms: Shall have the meaning set forth in Section 39.01
hereof.
EE. Rent: The Fixed Rent and the Additional Charges.
FF. Rules and Regulations: The reasonable rules and regulations that
may be promulgated by Landlord from time to time as to the office portion of the
Building, as may be reasonably changed by Landlord from time to time.
GG. Substantially Completed: Substantially Completed or terms of
similar import shall mean the completion of construction, and the issuance of a
temporary certificate of occupancy therefore, except for minor details,
designated or punchlists delivered to Tenant, of construction, decoration and
mechanical adjustment, the non-completion of which will not materially interfere
with the performance of Tenant's Work or Tenant's use and occupancy of the
Demised Premises for Tenant's normal business purposes, and the completion of
which is expected to occur within sixty (60) days after such Substantial
Completion.
HH. Successor Landlord: Shall have the meaning set forth in Section
9.03.
II. Superior Lease: Any ground or underlying lease of the Land or the
Building.
JJ. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
KK. Superior Mortgage: Any mortgage, including the Mortgage, which may
hereafter affect the Land, the estate created under the Ground Lease or by any
other Superior Lease, or the Building and all renewals, extensions, supplements,
amendments, modifications, consolidations, and replacements thereof or thereto,
substitutions therefore, and advances made thereunder.
LL. Superior Mortgagee: The mortgagee of a Superior Mortgage at the
time referred to, sometimes herein referred to as a Mortgagee.
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MM. Tenant: On the date of which this Lease is made shall mean
PaineWebber, Inc., but thereafter, "Tenant" shall mean only the tenant under
this Lease at the time in question; provided, however, that the foregoing shall
not be deemed to relieve PaineWebber, Inc. of any liability in the event of an
assignment of its interest in this Lease except in accordance with the
provisions of Section 11.04(b) hereof.
NN. Tenant's Fraction: 44.86%, as the same may be decreased pursuant to
Section 38.12 hereof.
OO. Tenant's Property: Shall have the meaning set forth in Section
16.02.
PP. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, decorate and furnish the Demised Premises for Tenant's initial occupancy
in accordance with the provisions of Exhibit "J" annexed hereto and made a part
hereof.
QQ. Term: The period commencing on the Commencement Date and ending at
11:59 P.M. of the Expiration Date unless otherwise terminated in accordance with
the provisions hereof.
RR. Unavoidable Delays: A delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, accident, riot or
civil commotion, act of war, fire or other catastrophe, Legal Requirement or an
act of the other party and any cause beyond the reasonable control of that
party, provided that the party asserting such Unavoidable Delay has exercised
its best efforts to minimize such delay. The party asserting such delay,
promptly upon becoming aware of such Unavoidable Delay, shall give written
notice of such Unavoidable Delay to the other party.
ARTICLE 2 - DEMISE AND TERM
2.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. Promptly following the
Commencement Date, the parties hereto shall enter into an agreement in form and
substance reasonably satisfactory to Landlord and Tenant setting forth the
Commencement Date.
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ARTICLE 3 - RENT
3.01 Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month beginning on the Fixed
Rent Commencement Date. If the Fixed Rent Commencement Date occurs on a day
other than the first day of a calendar month, the Fixed Rent for such partial
calendar month shall be prorated on a per diem basis and paid on the Fixed Rent
Commencement Date.
3.02 The Rent shall be paid in lawful money of the United States to
Landlord by wire Transfer of immediately available funds to a bank which is a
member of the New York Clearing House Association, or by check to such other
place, as Landlord shall designate by notice to Tenant. Tenant shall pay the
Rent promptly when due and without any abatement, deduction or setoff for any
reason whatsoever, except as may be expressly provided in this Lease. In case of
payment by check, tenant shall assume the risk of lateness or failure of
delivery of the mails, and no lateness or failure of the mails will excuse
Tenant from its obligation to have made the payment in question when required
under this Lease.
3.03 No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment 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.
3.04 If Tenant is in arrears in payments of Rent, Tenant waives
Tenant's right, if any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may apply any payments made by Tenant to
such items as Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items to which any such payments
shall be credited.
3.05 If Tenant shall fail to pay any installment of Fixed Rent within
five (5) days or any other item of Rent within twenty (20) days after the date
when such payment is due and Landlord shall have delivered a xxxx
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for the same (which delivery may be by invoice and shall not be required to
comply with the requirements for copies of notices specified in Article 34
hereof), then, any such payment shall bear interest calculated from the due date
to the date such payment is received by Landlord at a rate equal to two (2)
percentage points in excess of the rate of interest publicly announced from time
to time by Citibank, N.A., or its successor, as its "base rate" (or such other
term as may be used by Citibank, N.A., from time to time, for the rate presently
referred to as its "base rate") (the "Late Payment Rate").
3.06 It is the intention of the parties that the Fixed Rent payable
under this Lease shall be net to Landlord, so that this Lease shall yield to
Landlord the Fixed Rent specified herein during the Term of this Lease, and that
all costs, expenses and obligations of every kind and nature whatsoever relating
to the Demised Premises shall be paid by Tenant, other than liens placed on the
Demised Premises by Landlord, or claims against Landlord for Landlord's
negligence or default under the terms of this Lease (nothing herein shall be
construed as affecting the provisions of any insurance carried by Landlord,
Tenant, subtenant or assign with respect to the Demised Premises, including fire
and hazard insurance, liability insurance and an other insurance).
ARTICLE 4 - USE OF BUILDING
4.01 Tenant shall use and occupy the Demised Premises only for the
Permitted Uses, and any other lawful purpose in keeping with the character of
the Building and the Lincoln Harbor Project (as defined on Exhibit "K", annexed
hereto and made a part hereof), and Tenant shall not use or permit or suffer the
use of the Demised Premises or any part thereof for any illegal or hazardous
purpose.
4.02 On or before the Commencement Date, Landlord shall obtain a
certificate of occupancy for the Building. Each other governmental license or
permit required for the proper and lawful conduct of Tenant's business in the
Demised Premises or any part thereof, shall be duly procured either by Tenant if
Tenant shall perform Tenant's Work, or by Landlord if Landlord shall perform
Tenant's Work, and thereafter Tenant shall maintain such license or permit and
submit the same to Landlord for inspection. Tenant shall at all times comply
with the terms and conditions of each such license or
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permit. Tenant shall not at any time use or occupy, or suffer or permit anyone
to use or occupy the Demised Premises, or do or permit anything on the Demised
Premises in any manner which (a) violates the certificate of occupancy for the
Demised Premises; (b) causes injury to the Building, including the structure,
roof or building Systems thereof, (c) constitutes a violation of the Legal
Requirements or Insurance Requirements; (d) impairs the character, reputation or
appearance of the Building as a first-class office building; or (e) interferes
with the right of quiet enjoyment of tenants or occupants of the Land or
adjacent premises.
ARTICLE 5 - PREPARATION OF BUILDING
5.01 The Building shall be Substantially Completed and prepared for
Tenant's Work in the manner described in, and subject to the provisions of,
Exhibit "F" annexed hereto, on or before July 1, 1988 and Substantially
Completed on or before August 1, 1988, in either event provided that Tenant
shall deliver to Landlord plans and specifications for the core and shell of the
Building on or before December 15, 1986. Such date for Substantial Completion of
the Building shall be postponed one day for each day beyond December 15, 1986 on
which Tenant does not deliver such plans and specifications. Tenant promptly
shall enter the Demised Premises on the later to occur of the delivery of the
Architect's Certificate or the date which is thirty (30) days after receipt of
the Commencement Notice. Landlord shall, from time to time, upon request of
Tenant advise Tenant of the progress of Landlord's Work and the estimated date
that Tenant may commence or cause to be commenced Tenant's Work. Except as
expressly provided to the contrary in this Lease, the commencement by Tenant of
the Tenant's Work shall be evidence that the Demised Premises were in good and
satisfactory condition at the time Tenant's Work was undertaken except as to (i)
any defects in the Demised Premises which were not known or reasonably
discoverable by Tenant by observation or an inspection ("Latent Defects"), (ii)
any items of work performed by Landlord of which Tenant gives Landlord notice
within one hundred twenty (120) days after the Commencement Date, and (iii)
portions of the work performed by Landlord not completed, because under good
construction scheduling practice such work should be done after completion of
still incompleted finishing or other work to be done by or on behalf of Tenant.
Landlord shall complete all such items of work
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not so completed within sixty (60) days after the date of Substantial
Completion. Landlord, its agents, servants, employees and contractors shall have
the right to enter the Demised Premises to complete or repair any such
unfinished items and Latent Defects upon reasonable prior notice to Tenant.
Landlord shall warrant all construction and equipment delivered in or with
Landlord's Work for a period of one (1) year from the Commencement Date.
Landlord covenants that the warranty obtained with respect to the roof shall be
for a minimum of ten (10) years from completion of the roof in accordance with
the Plans and Specifications.
5.02 If the Substantial Completion of the Landlord's Work shall be
delayed due to (a) any act or omission of Tenant or any of its employees, agents
or contractors [including, without limitation, (i) any delays due to changes in
or additions to the Landlord's Work made at the request of Tenant or (ii) any
delays by Tenant in the submission of plans, drawings, specifications or other
information or in approving any working drawings or estimates or in giving any
authorizations or approval(s)], or (b) any additional time needed for the
completion of the Landlord's Work by the inclusion in the Landlord's Work of any
extra work required of Landlord by Tenant, then Landlord's Work in connection
with the Demised Premises shall be deemed Substantially Complete on the date
it would have been Substantially Complete but for such delay(s). Landlord
covenants that the warranty with respect to the roof shall be for a minimum of
ten (10) years from completion of the roof in accordance with the Plans and
Specifications. Landlord promptly and contemporaneously shall notify Tenant of
any delay in completion claimed to be caused by any of the items enumerated in
sub-section (a) above.
5.03 Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, nature and use of
any other improvements on the Land, including without limitation, the right to
move and/or remove same, provided same shall not block or unreasonably interfere
with Tenant's means of ingress or egress to and from the Building. Landlord
shall insure that in connection with the development of the Lincoln Harbor
Project, Ground Lessor shall not deviate materially from the approved site plan
without Ten- ant's prior consent, which consent shall not be unreasonably
withheld or delayed, and provided further that Ten-
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ant may thereupon request a recalculation of Operating Expenses in accordance
with Section 38.10 hereof.
5.04 The interior finish of the Demised Premises is the responsibility
of Tenant as Tenant's Work. Landlord shall provide an allowance ("Tenant's
Fund") equal to the product of Twenty-Four Dollars ($24) and the Floor Space.
5.05 At Tenant's request from time to time, but not more frequently
than once each month, Landlord shall disburse within fifteen (15) days of
verification portions of the Tenant Fund to Tenant in an amount equal to the
product of Twenty-Four Dollars ($24) and the percentage of completion of
Tenant's Work, as certified by Architect or the architect employed by Tenant in
connection with Tenant's Work and verified or objected to by Architect within
fifteen (15) days of receipt thereof (it being agreed that if Architect shall
fail to respond within such fifteen (15) day period, such certification shall be
deemed to have been verified). Landlord shall be permitted to bid upon the
Tenant's Work. Tenant shall be responsible (through a construction manager if
Tenant so desires to employ such at its own expense) for all Tenant Work. In the
event Landlord shall be awarded the bid, Landlord shall complete the Tenant Work
of the Building within four (4) months of the completion of the shell of the
Building; predicated upon Landlord receiving Tenant's request for proposal on or
before February 1, 1988 and Landlord starting the Tenant Work in the tenth
(10th) month of the Building shell construction. This shall provide six (6)
months total elasped time for Tenant s Work. In the event another contractor is
awarded the bid, Landlord shall fully cooperate with such contractor to assist
its timely completion of Tenant's Work and such contractor shall utilize
employees and subcontractors who shall not cause union labor conflicts.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01 On or before the Commencement Date, Landlord shall use its best
efforts to obtain from the City of Weehawken, a separate tax lot and zoning lot
number for the Building. Commencing on the Commencement Date and provided that
Landlord shall have obtained a separate tax lot number for the Building, Tenant
shall pay to Landlord an amount equal to Tenant's Fraction of the Real Estate
Taxes for any year during the Term five (5) busi-
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ness days before any delinquency fee would be imposed upon the payment of the
same. If Landlord shall not have obtained a separate tax lot number for the
Building on or before the Commencement Date, then, commencing on the
Commencement Date, Tenant shall pay to Landlord an amount equal to Tenant's
Proportionate Share (hereinafter defined) of the Real Estate Taxes for the tax
lot of which the Land forms a part not later than five (5) business days before
any delinquency fee would be imposed upon the payment of the same, until such
time as Landlord shall have obtained such separate tax lot number; but in no
event shall Tenant's payment for Real Estate Taxes be more than that amount
which Tenant would have paid if the Building were a separate tax lot. Tenant's
"Proportionate Share" shall mean Tenant's Fraction of the sum of (x) the tax
attributable to the Building and other improvements located on the Land, as may
be separately assessed or as shown on the Tax Assessor's notes, and (y) 2.12% of
the tax attributable to the tax lot of which the Land forms a part. Landlord
agrees that, throughout the Term, the Building will constitute a separate tax
lot, separate and apart from other real property. In determining the amount of
Real Estate Taxes for the partial calendar years in which the Term shall
commence or expire, Real Estate Taxes payable in such calendar year shall be
apportioned for that portion of the Tax Year (hereinafter defined) occurring
within the calendar year and Real Estate Taxes for such calendar year shall be
prorated for the number of days in such calendar year occurring subsequent to
the Commencement Date or prior to the Expiration Date, as the case may be. "Tax
Year" shall mean the period January 1 through December 31 (or such other period
as hereafter may be duly adopted by the City of Weehawken as its fiscal year for
Real Estate Tax purposes), any portion of which occurs during the Term. Tenant
shall have the right to institute, and in good faith prosecute, tax certiorari
proceedings with respect to the Building and the Land. In the event of the
institution of such proceedings, such proceedings shall be at Tenant's sole cost
and expense and Landlord shall cooperate fully with Tenant in connection with
any such proceedings.
6.02(a) Not less than ninety (90) days prior to the Commencement Date,
Landlord shall deliver to Tenant a statement estimating the Operating Expenses
for the partial calendar year commencing on the Commencement Date and Tenant
shall pay to Landlord on the first day of each
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month during the first partial calendar year of the Term an amount equal to such
estimated Operating Expenses divided by the number of months or partial months
in such partial calendar year. On or before March 1 of each calendar year or
partial calendar year subsequent to the first partial calendar year during the
Term, Landlord shall furnish Tenant with an operating statement (the "Operating
Statement") in reasonable detail setting forth the actual Operating Expenses for
the preceding calendar year. If such Operating Statement shall show that the
actual Operating Expenses for the preceding calendar year were in excess of
those estimated by Landlord and previously paid by Tenant, then within thirty
(30) days after receipt of such actual Operating Statement, Tenant shall remit
to Landlord any such deficiency. If such Operating Statement shall show that
Tenant shall have paid amounts in excess of the actual Operating Expenses, then
Landlord shall remit to Tenant, together with such Operating Statement, a check
in the amount equal to such excess payments.
(b) In addition, in each Operating Statement, Landlord may set
forth any estimated increases in Operating Expenses for the then current
calendar year, provided, however, that in no event shall Landlord's estimate
exceed an amount equal to the sum of the actual Operating Expenses for the
preceding calendar year and an amount equal to such actual Operating Expenses
multiplied by the percentage increase in the Consumer Price Index for All Urban
Consumers published by the Bureau of Labor Statistics of the United States
Department of Labor, New York, N.Y. - Northeastern N.J. Area, All Items (1967 =
100), or any successor index thereto, appropriately adjusted (the "CPI"). If the
CPI ceases to be published, and there is no successor thereto, such other index
as Landlord or Tenant shall agree upon in writing shall be substituted for the
CPI. If Landlord or Tenant are unable to agree as to such substituted index,
such matter shall be submitted to the American Arbitration Association or any
successor organization for determination in accordance with the regulations and
procedures thereof then obtaining for commercial arbitration. After receipt of
such Operating Statement, Tenant shall pay to Landlord a sum equal to 1/12th of
the amount shown on such statement multiplied by the number of months of the
Term in said calendar year preceding the demand, less the amount (if any) paid
by Tenant prior to such demand pursuant hereto for such months, and thereafter,
commencing with
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the month in which the demand is made in continuing thereafter for each month of
the Term until the rendition of a new Operating Statement, 1/12th of the amount
shown on such Operating Statement.
6.03 Each such statement given by Landlord pursuant to Section 6.02
shall be conclusive and binding upon Tenant unless within ninety (90) days after
the receipt of the Operating Statement provided for above Tenant shall notify
Landlord that it disputes the correctness of the statement, specifying, to the
extent the information is available, the particular respects in which the
statement is claimed to be incorrect. If such notice is sent, Tenant and its
accountants may examine Landlord's books and records relating to the Operating
Expenses to determine the accuracy of the Operating Statement. If after such
examination, Tenant still disputes such Operating Statement, either party may
refer the decision of the issues raised to one of the so-called "big-eight"
public accounting firms, mutually satisfactory to Landlord and Tenant, or if
Landlord and Tenant shall be unable to agree, then the firm to which the dispute
shall be referred shall be chosen as follows: Landlord and Tenant shall each be
permitted to exclude one of such firms from the pool of acceptable firms; the
firm to whom such decision shall be referred shall then be chosen by lot from
the pool of remaining firms, and if the firm chosen by lot shall refuse to
serve, a substitute firm shall be chosen by lot. The firm so chosen may, in its
discretion, retain one or more consultants to assist in the resolution of the
dispute referred to it. The decision of such accountants, absent manifest error,
shall be conclusively binding upon the parties. The fees and expenses (including
the fees of such consultants) involved in such decisions shall be borne by the
unsuccessful party (and if both parties are partially successful, the
accountants shall apportion the fees and expenses between the parties based on
the degree of success of each party). If such dispute is ultimately determined
in Tenant's favor (either by agreement between Landlord or Tenant or by decision
of the accountants), Landlord promptly after such determination shall pay to
Tenant any amount overpaid by Tenant. Pending the determination of such dispute
by agreement or arbitration as aforesaid, Tenant shall, within ten (10) days
after receipt of such statement, pay the Additional Charges in accordance with
Landlord's statement, without prejudice to Tenant's position.
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ARTICLE 7 - COMMON AREAS
7.01 Subject to the provisions of Section 5.03, Landlord will operate,
manage, equip, light, repair and maintain, or cause to be operated, managed,
equipped, lighted, repaired and maintained, the Common Areas for their intended
purposes and will enforce the Reciprocal Construction Operation and Easement
Agreement, between Ground Lessor and the Township of Weehawken. Landlord
reserves the right, at any time and from time to time, to construct within the
Common Areas kiosks, fountains, aquariums, planters, pools and sculptures, and
to install vending machines, telephone booths, benches and the like provided
same shall not block or interfere with Tenant's means of ingress or egress to
and from the Building.
7.02 Tenant and its subtenants and their respective officers,
employees, agents, customers and invitees, shall have the non-exclusive right,
in common with Landlord and all others to whom such right may have been or may
hereafter be granted, but subject to the Rules and Regulations, if any, to use
the Common Areas. Landlord reserves the right, at any time and from time to
time, to close temporarily all or any portions of the Common Areas (provided
that such closure does not unreasonably interfere with Tenant's business at the
Demised Premises, except in cases of emergency) when in Landlord's reasonable
judgment any such closing is necessary or to (a) permit Xxxxx or its successors
or assigns or designees to make repairs or changes or to effect construction
within the Lincoln Harbor Project; (b) prevent the acquisition of public rights
in such areas; or (c) to protect or preserve natural persons or property.
Landlord may do such other acts in and to the Common Areas as in its reasonable
judgment may be desirable to improve or maintain same, provided, however that
Landlord shall not change the standard of maintenance of the Common Areas
without Tenant's approval, which approval shall not be unreasonably withheld or
delayed. In all such events, Landlord's Work shall be commenced and prosecuted
diligently and with as little interference as possible with Tenant's use of the
Demised Premises.
7.03 Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only where and as permitted by Landlord. Tenant
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will, if and when so requested by Landlord, furnish Landlord with the license
numbers of any vehicles of Tenant, any subtenant or licensee and their
respective officers, employees and agents. Tenant shall be furnished with the
non-exclusive use of one (1) unreserved parking space for every 690 square feet
of Floor Space in the Demised Premises, of which spaces, at Tenant's request,
five percent (5%) shall be reserved for exclusive executive parking, as shown on
the parking plan annexed hereto as Exhibit "L" and made a part hereof. Tenant
shall have access to all such spaces twenty-four (24) hours a day, throughout
the Term. Landlord shall maintain or cause to be maintained all such parking in
a manner reasonably satisfactory to Tenant.
ARTICLE 8 - LABOR HARMONY
8.01 Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing labor disruption or dispute or
any interference with the business of Landlord.
ARTICLE 9 - SUBORDINATION
9.01 Provided that (a) a Superior Mortgagee shall execute and deliver
to Tenant an agreement, in recordable form, substantially in the form attached
hereto and made a part hereof as Exhibit "M-1", to the effect that, provided no
event of default has occurred and is continuing hereunder, such Superior
Mortgagee will not name or join Tenant as a party defendant or otherwise in any
suit, action or proceeding to enforce any rights granted to such Superior
Mortgagee under its Superior Mortgage, and to the further effect that if there
shall be a foreclosure of its Superior Mortgage, that the Superior Mortgagee
will not make Tenant a party defendant to such foreclosure, evict Tenant,
disturb Tenant's possession under this Lease, or terminate or disturb Tenant's
leasehold estate or rights hereunder, or (b) a Superior Lessor shall execute and
deliver to Tenant an agreement, in recordable form, substantially in the form
annexed hereto as Exhibit "M-2", to the effect that, provided no Event of
Default shall have occurred and is continuing hereunder, such Superior Lessor
will not name or join Tenant as a party defendant or otherwise in any suit,
action or proceeding to enforce any rights granted to
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such Lessor under its Superior Lease, and to the further effect that if its
Superior Lease shall terminate or be terminated for any reason, such Superior
Lessor will recognize Tenant as the direct tenant of such Superior Lessor on the
same terms and conditions as are contained in this Lease, (any such agreement,
or any agreement of similar import from a Superior Mortgagee or Superior Lessor,
as the case may be, being hereinafter called a "Nondisturbance Agreement"), this
Lease shall be subject and subordinate to such Superior Mortgage or to such
Superior Lease in respect of which a Nondisturbance Agreement shall have been
delivered, and to all renewals, extensions, supplements, amendments,
modifications, consolidations and replacements of such Superior Mortgage or
Superior Lease or any substitutions therefor, and advances made thereunder. The
provisions of this Section 9.01 shall be self-operative and no further
instrument of subordination shall be required upon delivery of such
Nondisturbance Agreement, however, in confirmation of such subordination, Tenant
shall promptly execute, acknowledge and deliver an instrument of evidencing such
subordination; and if Tenant fails to execute, acknowledge or deliver any such
instruments within thirty (30) days after request therefor, Tenant hereby
irrevocably constitutes and appoints Landlord as Tenant's attorney-in-fact,
coupled with an interest, to execute and deliver any such instruments for and on
behalf of Tenant.
9.02 If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right until and unless (a) it has given written notice of such act or omission
to Landlord and each Superior Mortgagee and each Superior Lessor whose name and
address shall previously have been furnished to Tenant, and (b) such act or
omission shall not have been remedied within thirty (30) days following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same (or such longer period as
may be reasonably required if such condition is not susceptible to remedy within
such thirty (30) day period provided such Superior Lessor or Superior Mortgagee
commences and diligently pursues such remedy, which reasonable period shall in
no event be less than the period to which the
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Landlord would be entitled under this Lease or otherwise, after similar notice,
to effect such remedy).
9.03 If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment provided that such
Successor Landlord shall then be entitled to possession of the Demised Premises
and shall have either agreed to assume the obligations of Landlord hereunder or
shall have entered into a Nondisturbance Agreement with Tenant. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
(unless such Successor Landlord is an affiliated entity of Landlord) shall not
(a) be liable for any previous act or omission of Landlord under this Lease
unless the same shall be continuing; (b) be subject to any offset, not expressly
provided for in this Lease, which theretofore shall have accrued to Tenant
against Landlord; or (c) be bound by any previous modification of this Lease or
by any previous prepayment of more than one month's Fixed Rent or Additional
Charges, unless such modification or prepayment shall have been expressly
approved in writing by the Superior Lessor of the Superior Lease or the
Mortgagee of the Superior Mortgage through or by reason of which the Successor
Landlord shall have succeeded to the rights of Landlord under this Lease.
9.04 If any then present or prospective Superior Mortgagee shall
require any modifications of this Lease, Tenant shall promptly execute and
deliver to Landlord such instruments effecting such modification(s) as Landlord
shall request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this Lease, materially increase
Tenant's obligations under this Lease or materially diminish Landlord's
obligations under this Lease.
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ARTICLE 10 - QUIET ENJOYMENT
10.01 So long as no Event of Default shall have occurred and be
continuing, Tenant shall peaceably and quietly have, hold and enjoy the Demised
Premises without hindrance, ejection or molestation by Landlord or any person
lawfully claiming through or under Landlord, subject, nevertheless, to the
provisions of this Lease and the Ground Lease.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01 Tenant shall have the absolute right, at any time, without
Landlord's consent, to (a) assign or otherwise transfer this Lease, or offer or
advertise to do so, and (b) sublet the Demised Premises or any part thereof, or
offer or advertise to do so, or allow the same to be used, occupied or utilized
by anyone other than Tenant, or (c) mortgage, pledge, encumber or otherwise
hypothecate this Lease in any manner whatsoever.
11.02(a) Notwithstanding anything contained in Section 11.01 hereof,
prior to the earlier to occur of either the fifth anniversary of the
Commencement Date and the date on which the improvements to be constructed in
the Lincoln Harbor Project, as more particularly set forth on Exhibit "K"
annexed hereto and made a part hereof, shall be 90% leased, Tenant may not
assign its interest in this Lease or sublet all or any portion of the Demised
Premises, provided, however, that Tenant shall have the right during such
period, without Landlord's prior consent, to sublet a portion or portions of the
Demised Premises not to exceed 75,000 square feet of floor space in the
aggregate (such amount to be reduced, foot for foot, by an amount equal to the
area sublet by Tenant pursuant to a similar provision in any other lease of
which Tenant is tenant in the Lincoln Harbor Project) which amount Tenant agrees
is fair and reasonable.
(b) Notwithstanding the foregoing, however, the provisions of
clause (a) of this Section 11.02 shall not be deemed to apply to (x) any
assignment of Tenant's interest in this Lease to an Affiliate (hereinafter
defined) or to any assignment, whether by operation of law or otherwise, to a
company which is Tenant's successor-in-interest either by merger or
consolidation, or to any assignment to a purchaser of all or substantially all
of Tenant's assets, or (y) any subleasing of all or
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any portion of the Demised Premises to an Affiliate unless the primary purpose
of any such transaction is to transfer the estate created by this Lease in
violation of Section 11.02(a) hereof. For purposes hereof, "Affiliate" shall be
deemed to mean a corporation or other entity which shall (1) control, (2) be
under the control of, or (3) shall be under common control with, Tenant (the
term "control" as used herein shall be deemed to mean ownership of more than 5%
of the voting stock of a corporation on a fully diluted basis, if such
corporation is publicly traded, or more than 50% of the voting stock of a
privately held corporation, or other majority equity and control interest, if
not a corporation.
11.03 If this Lease is assigned, Landlord may collect rent from the
assignee. If the Demised Premises or any part thereof are sublet or used or
occupied by anybody other than Tenant, Landlord may, after default by Tenant,
and expiration of Tenant's time to cure such default, collect rent from the
subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Article 11,
or the acceptance of the assignee or subtenant as occupant or a release of
Tenant from the performance by Tenant of Tenant's obligations under this Lease.
11.04(a) Any assignment or transfer shall be made only if, and shall
not be effective until, the assignee shall execute, acknowledge and deliver to
Landlord an agreement in form and substance satisfactory to Landlord whereby the
assignee shall assume Tenant's obligations under this Lease and whereby the
assignee shall agree that all of the provisions in this Article 11 shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect to all future assignments and transfers. Notwithstanding any assignment
or transfer, whether or not in violation of the provisions of this Lease, and
notwithstanding the acceptance of Rent by Landlord from an assignee, transferee,
or any other party, the original Tenant and any other person(s) who at any time
was or were Tenant shall remain fully liable for the payment of the Rent and for
Tenant's other obligations under this Lease unless, in the event of such
permitted assignment or transfer, Landlord releases Tenant from its obligations
under this Lease as provided in Section 11.04(b) of this Lease.
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(b) In the event Tenant assigns its interest in this Lease,
Landlord agrees, subject to the prior consent of any Superior Mortgagee, to
release Tenant from its obligations under this Lease provided all of the
following conditions are met:
(i) Such Permitted assignee has a net worth at least
equal to $250,000,000, as the same shall be increased or decreased on each
anniversary of the Commencement Date commencing on the fifth (5th)
anniversary of the Commencement Date by an amount equal to the product of
$250,000,000 and seventy-five percent (75%) of the percentage increase or
decrease in the CPI for the immediately preceding twelve (12) month period,
provided, however, that in no event shall the same be decreased to be less
than $250,000,000; and
(ii) Such permitted assignee is a well known business
entity of high repute having a standing in the business community, in
Landlord's reasonable judgment, at least equivalent to PaineWebber, Inc.;
and
(iii) Such permitted assignee executes an agreement in
substance and form reasonably satisfactory to Landlord whereby such
assignee assumes all of Tenant's obligations under this Lease.
11.05 Promptly after request therefor by Tenant, Landlord shall enter
into a Nondisturbance Agreement with any permitted subtenant of Tenant occupying
one or more full floors of the Demised Premises, substantially in the form
annexed hereto as Exhibit "N".
11.06 The liability of the original named Tenant and any other
Person(s) who at any time was or were Tenant for Tenant's obligations under this
Lease shall not be discharged, released or impaired by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
11.07 The listing of any name other than that of Tenant, whether on the
doors of the Building, the
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Building directory or otherwise, shall not operate to vest any right or interest
in this Lease or in the Building, nor shall it be deemed to be the consent of
Landlord to any assignment or transfer of this Lease or to any sublease of the
Building or to the use or occupancy thereof by others.
11.08 Without limiting any of the provisions of Article 27, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant assigns this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, that if Tenant defaults in the full and prompt
payment and performance of any of its obligations under this Lease, including,
without limitation, the payment of Rent, Landlord may use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any Rent or any other sums as to which such tenant is in default or
for any sum which Landlord may expend or may be required to expend by reason of
Tenant's default in respect of any of such Tenant's obligations under this
Lease, including, without limitation, any damages or deficiency in the reletting
of the Demised Premises, whether such damages or deficiency accrue before or
after summary proceedings or other reentry by Landlord. If Landlord shall so
xxx, apply or retain the whole or any part of the security, Tenant shall upon
demand immediately deposit with landlord a sum equal to the amount so used,
applied and retained, as security as aforesaid. If Tenant shall fully and
faithfully pay and perform all of Tenant's obligations under this Lease, the
security or any balance thereof to which such tenant is entitled shall be
returned or paid over to such tenant after the date on which this Lease shall
expire or sooner end or terminate, and after delivery to Landlord of entire
possession of the Demised Premises. In the event of any sale or leasing of the
Building or leasing of Demised Premises, Landlord shall have the right to
transfer the security to which Tenant is entitled to the vendee or lessee and
Landlord shall thereupon
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be released by such tenant from all liability for the return or payment thereof;
Tenant shall look solely to the new landlord for the return or payment of the
same; and the provisions hereof shall apply to every transfer or assignment made
of the same to a new landlord. Tenant shall not assign or encumber or attempt to
assign or encumber the monies deposited herein as security, and bound by any
such assignment, encumbrance, attempted assignment or attempted encumbrance.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01 Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
cost, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply with any such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
Landlord shall be in full compliance with any Legal Requirements applicable to
Landlord's Work on or before the Commencement Date, and the obligation of Tenant
to comply with any Legal Requirement as set forth immediately above shall not
arise with respect to any such Legal Requirement with which Landlord is not in
compliance as of the Commencement Date, until such time as non-compliance shall
have been cured by Landlord.
12.02 Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord either
(i) the bond of a surety company satisfactory to Landlord, which bond shall be,
as to its provisions and form, satisfactory to Landlord, and shall be in an
amount at least
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equal to 125% of the cost of such compliance (as estimated by a reputable
contractor designated by Landlord) and shall indemnify Landlord against the cost
thereof and against all liability for damages, interest, penalties and expenses
(including reasonable attorneys' fees and expenses), resulting from or incurred
in connection with such contest or noncompliance, or (ii) other security in
place of such bond satisfactory to Landlord; (c) Tenant shall keep Landlord
advised as to the status of such proceedings. Notwithstanding anything herein to
the contrary, the provisions of (b) above shall not apply during such time as
PaineWebber, Inc. remains obligated for Tenant's obligations under this Lease.
Without limiting the application of the above, Landlord shall be deemed subject
to prosecution for a crime if Landlord, or its managing agent, or any officer,
director, partner, shareholder or employee of Landlord or its managing agent, as
an individual, is charged with a crime of any kind or degree whatsoever, whether
by service of a summons or otherwise, unless such charge is withdrawn before
Landlord or its managing agent, or such officer, director, partner, shareholder
or employee of Landlord or its managing agent (as the case may be) is required
to plead or answer thereto.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01(a) Tenant shall at all times during the term hereof maintain or
cause to be maintained business interruption insurance with a rent insurance
endorsement payable to Landlord, covering a period of at least twelve (12)
months. Landlord shall obtain and keep in full force and effect insurance
against loss or damage by fire and other casualty to the Building, including any
item of Tenant's Work, as may be insurable under then available standard forms
of "all risk" insurance policies, in an amount equal to 100% of the replacement
value thereof (and Tenant shall pay Tenant's Fraction of the cost thereof in
accordance with Exhibit "H" annexed hereto and made a part hereof). Tenant shall
notify Landlord of the completion of any Tenant's Work and of the costs thereof,
and shall maintain adequate records with respect to such Tenant's Work to
facilitate the adjustment of any insurance claims with respect thereto. Tenant
shall cooperate with Landlord and Landlord's insurance companies in the
adjustment of any claims for any damage to the Building or to such Tenant's
Work. On or prior to the Commencement Date, Landlord shall deliver to Tenant
appropriate
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certificates of insurance, including evidence of waivers of subrogation required
pursuant to Section 13.05 hereof, required to be carried by Landlord pursuant to
this Article 13. Evidence of each renewal or replacement of a policy shall be so
delivered by Landlord to Tenant at least ten days prior to the expiration of
such policy. Any certificates so deposited by Landlord with Tenant shall
indicate whether the insurance required by this Article 13 is affected under a
blanket insurance policy and, if so, shall certify to the aggregate amount of
such blanket insurance policy and to the fact that there are no sublimits which
derogate from the coverage required by this Article.
13.02 Tenant also shall maintain the following insurance: (a)
comprehensive general public liability insurance in respect of the Demised
Premises and the conduct and operation of business therein, with Landlord as an
additional named insured, and at Landlord's request with any Superior Lessors as
additional named insured(s), with limits of not less than $3,000,000 for bodily
injury or death to any one person and $5,000,000 for bodily injury or death to
any number of persons in any one occurrence, and $500,000 for property damage,
including water damage and sprinkler leakage legal liability, and (b) any other
insurance required for compliance with the Insurance Requirements. Tenant shall
also obtain and keep in full force and effect a policy of insurance against loss
or damage by fire, and such other risks and hazards (including burglary and
theft) as are insurable under then available standard forms of "all risk"
insurance policies, to Tenant's Property, for one hundred percent (100%) of the
replacement value thereof or for such lesser amount as will avoid co-insurance
(including an "agreed amount" endorsement), protecting Landlord, Landlord's
agents, any Superior Mortgagee, any Superior Lessor and Tenant as insured, as
their interest may appear; provided, however, that no such additional insured
party shall be entitled to adjust, or participate in the adjustment of, any loss
or receive any proceeds under any such insurance policy, and the policies may so
provide. Tenant shall deliver to Landlord and any additional named insured(s)
certificates for such fully paid-for policies at least ten (10) days before the
Commencement Date. Tenant shall procure and pay for renewals of such insurance
from time to time before the expiration thereof, and Tenant shall deliver to
Landlord and any additional insured(s) certificates therefor at least 30 days
before
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the expiration of any existing policy. All such policies shall be issued by
companies of recognized responsibility licensed to do business in New Jersey,
and all such policies shall contain a provision whereby the same cannot be
cancelled unless Landlord and any additional insured(s) are given at least 20
days' prior written notice of such cancellation.
13.03 Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect to the Land and Building or any
part thereof shall become void or suspended or whereby any premiums in respect
of insurance maintained by Landlord shall be higher than those which would
normally have been in effect for the occupancy contemplated under the Permitted
Uses. In case of a breach of the provisions of this Section 13.03, in addition
to all other rights and remedies of Landlord hereunder, Tenant shall (a)
indemnify Landlord and the Superior Lessors and hold Landlord and the Superior
Lessors harmless from and against any loss which would have been covered by
insurance which shall have become void or suspended because of such breach by
Tenant and (b) pay to Landlord any and all increases of premiums on any
insurance, including, without limitation, rent insurance, resulting from any
such breach.
13.04(a) Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) Tenant's conduct or management of
the Demised Premises or of any business therein, or any work or thing whatsoever
done, or any condition created (other than by Landlord) in the Demised Premises
during the Term or during the period of time, if any, prior to the Commencement
Date that Tenant may have been given access to the Demised Premises, except to
the extent due to Landlord's wrongful acts or gross negligence; (b) any act,
omission or negligence of Tenant or any of its subtenants or licensees or its or
their partners, joint ventures, directors, officers, agent, employees or
contractors; (c) any accident, injury or damage whatever (except to the extent
caused by
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Landlord's acts or negligence) occurring in the Demised Premises or the Common
Areas; and (d) any breach or default by Tenant in the full and prompt payment
and performance of Tenant's obligations under this Lease; together with all
costs, expenses and obligations under this Lease; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
attorneys' fees and expenses. In case any action or proceeding is brought
against Landlord and/or any Superior Lessor and/or its or their partners, joint
venturers, directors, officers, agents and/or employees by reason of any such
claim, Tenant, upon notice from Landlord or such Superior Lessor, shall resist
and defend such action or proceeding by counsel reasonably satisfactory to
Landlord. Counsel appointed by the insurance company insuring the Building shall
be deemed satisfactory to Landlord.
(b) Landlord shall indemnify and hold harmless Tenant and its
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) Landlord's conduct or management
of the Building or any business therein, or other work or thing whatsoever done,
or any condition created (other than by Tenant), in the Building during the Term
or during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Demised Premises, to the extent due to
Landlord's willful acts or gross negligence; (b) any act, omission or negligence
of Landlord or its agents or their partners, joint ventures, directors,
officers, agents, employees or contractors; (c) any accident, injury or damage
whatever (except to the extent caused by Tenant's acts or negligence) occurring
in the Building and (d) any breach or default by Landlord in the prompt payment
and performance of Landlord's obligations under this Lease; together with all
costs, expenses and liabilities incurred in or in connection with each such
claim or action or proceeding brought thereon, including, without limitation,
all attorneys' fees and expenses. In case any action or proceeding is brought
against Tenant and/or its directors, officers, agents and/or employees by reason
of any such claim, Landlord, upon notice from Tenant, shall resist and defend
such action or proceeding by counsel reasonably satisfactory to Tenant. Counsel
appointed by the insurance company insuring the Building shall be deemed
satisfactory to Tenant.
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13.05 The parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Demised
Premises, the Building and personal property, fixtures and equipment located
thereon or therein, pursuant to which the insurance companies waive subrogation
or consent to a waiver of right of recovery, or an express agreement that the
applicable insurance policy shall not be invalidated if the insured waives, or
has waived before the casualty, the right of recovery, or an express agreement
that the applicable insurance policy shall not be invalidated if the insured
waives, or has waived before the casualty, the right of recovery against any
party responsible for a casualty covered by such policy, and having obtained
such clauses or endorsements or agreements of waiver of subrogation or consent
to a waiver of right of recovery, the parties agree that they will not make any
claim against or seek to recover from the other or anyone acting or claiming
under or through the other or any of their respective officers, directors,
shareholders, partners, employees, agents or contractors, for any loss or damage
to its property or the property of others resulting from fire or other hazards
covered by such fire and extended coverage insurance, provided, however, that
the release, discharge, exoneration and covenant not to xxx herein contained
shall be limited by and coextensive with the terms and provisions of the waiver
of subrogation clause or endorsements, or clauses or endorsements consenting to
a waiver of right or recovery. If the payment of an additional premium is
required for the inclusion of such waiver of subrogation provision, each party
shall advise the other of the amount of any such additional premiums and the
other party at its own election may, but shall not be obligated to, pay the
same. If such other party shall not elect to pay such additional premium or if
such clause may not be obtained, even with the payment of an additional premium,
then (in either event) such party shall so notify the first party and the first
party's agreement not to make any claim or seek recover shall not be effective
thereafter. If either party shall be unable to obtain the inclusion of such
clause even with the payment of an additional premium, then such party shall
attempt to name the other party as an additional insured (but not a loss payee)
under the policy. If the payment of an additional premium is required for naming
the other party as an additional insured (but not a loss payee), each party
shall advise the other of the amount of any such additional premium and the
other party at its own
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election may, but shall not be obligated to, pay the same. If such other party
shall not elect to pay such additional premium, the other party at its own
election may, but shall not be obligated to, pay the same. If such other party
shall not elect to pay such additional premium or if it shall not be possible to
have the other party named as an additional insured (but not loss payee), even
with the payment of an additional premium, then (in either event) such party
shall so notify the first party and the first party's agreement to name the
other party as an additional insured shall be satisfied. If either party shall
fail to have fire or extended coverage insurance in effect as required pursuant
to this Article 13, the agreement not to make any claim or seek recovery
contained in the first sentence of this Section 13.05 shall be in full force and
effect to the same extent as if such required insurance (containing the required
waiver of subrogation clause, endorsement or agreement) were in effect.
ARTICLE 14 - RULES AND REGULATIONS
14.01 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
reasonable judgment, shall be necessary for the reputation, safety, care or
appearance of the Land and Building, or the preservation of good order therein,
or the operation or maintenance of the Building or its equipment and fixtures,
or the Common Areas, and which do not unreasonably affect the conduct of
Tenant's business in the Building; provided, however, that in case of any
conflict or inconsistency between the provisions of this Lease and any of the
Rules and Regulations, the provisions of this Lease shall control. Nothing in
this Lease contained shall be construed to impose upon Landlord any duty or
obligation to enforce the Rules and Regulations against any other tenant or any
employees or agents of any other Tenant, and Landlord shall not be liable to
Tenant for violation of the Rules and Regulations by any other tenant or its
employees, agents, invitees or licensees, provided, however, Landlord shall not
enforce any Rule or Regulation against Tenant which Landlord shall not then be
enforcing against all other office tenants in the Building, in the case of the
Common Areas. If Tenant disputes the reasonableness of any additional
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Rule or Regulation hereafter adopted by Landlord, the dispute shall be
determined by arbitration in the City of Newark in accordance with the rules and
regulations then obtaining of the American Arbitration Association or its
successor. Any such determination shall be final and binding upon the parties
hereto, whether or not a judgment shall be entered in any court.
ARTICLE 15 - ALTERATIONS
15.01 Tenant shall not make any structural alterations or additions to
the Demised Premises which would adversely affect the structural integrity of
the Building, or change the exterior color or architectural treatment of the
Building, or which would otherwise impair the value of the Building without on
each occasion first obtaining the prior written consent of Landlord, it being
acknowledged that Landlord's consent shall not be required for any other
alterations or additions. Tenant shall submit to Landlord plans and
specifications for such work at the time landlord's consent is sought. Tenant
shall pay to Landlord upon demand the reasonable cost and expense of Landlord
for any action of Landlord in excess of (a) reviewing said plans and
specifications and (b) inspecting the alterations to determine whether the same
are being performed in accordance with the approved plans and specifications and
all Legal Requirements and Insurance Requirements including without limitation,
the fees of any architect or engineer employed by Landlord for such purpose.
Before proceeding with any permitted alteration which will cost more than
$350,000 (exclusive of the costs of decorating work and items constituting
Tenant's Property), as estimated by a reputable contractor designated by
Landlord, Tenant shall obtain and deliver to Landlord either (i) a performance
bond and a labor and materials payment bond (issued by a corporate surety
licensed to do business in New Jersey), each in an amount equal to 125% of such
estimated cost and in form satisfactory to Landlord, or (ii) such other security
as shall be satisfactory to Landlord. Notwithstanding anything herein to the
contrary, the provisions of the immediately preceding sentence shall not apply
during such time as PaineWebber, Inc. remains liable for Tenant's obligations
under this Lease. Tenant shall fully and promptly comply with and observe the
Rules and Regulations then in force in respect of the making of such
alterations. Any review or approval by Landlord of any plans and/or
specifications with respect to any such
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alterations is solely for Landlord's benefit, and without any representation or
warranty whatsoever to Tenant in respect to the adequacy, correctness or
efficiency thereof or otherwise.
15.02 Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of alterations and for final
approval thereof upon completion, and shall cause alterations to be performed in
compliance therewith all applicable Legal Requirements and Insurance
Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of the original installations of the Building.
Alterations requiring Landlord's consent shall be performed by contractors
licensed in the State of New Jersey (if applicable), whose use shall not
invalidate any warrants applicable to the Building or its Systems, and which
contractors are either employed in connection with the performance of Landlord's
Work or Tenant's Work or are reputable and skilled in their respective trades.
Alterations shall be made in such a manner as not to unreasonably interfere with
or delay and as not to impose any additional expense upon Landlord in the
maintenance, repair or operation of the Building; and if any such additional
expense shall be incurred by Landlord as a result of Tenant's making of any
alterations, Tenant shall pay any such additional expense upon demand.
Throughout the making of alterations, Tenant shall carry, or cause to be
carried, workmen's compensation insurance in statutory limits and general
liability insurance, with completed operation endorsement, for any occurrence in
or about the Building, under which Landlord and its managing agent and any
Superior Lessor whose name and address shall previously have been furnished to
Tenant shall be named as parties insured, in such limits as landlord may
reasonably require, with issuers reasonably satisfactory to Landlord. Tenant
shall furnish Landlord with reasonably satisfactory evidence that such insurance
is in effect at or before the commencement of alterations and, on request, at
reasonable intervals thereafter during the making of alterations.
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ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Demised Premises at the commencement of or during the Term
at the expense of Tenant (exclusive of the items to which Tenant's Fund has been
applied) shall be deemed to be the property of Tenant.
16.02 All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Building, which are installed in the Demised
Premises by or for the account of Tenant and can be removed without structural
damage to the Building and all furniture, furnishings, and other personal
property owned by Tenant and located in the Demised Premises (collectively,
"Tenant's Property") shall be and shall remain the property of Tenant and may be
removed by Tenant at any time during the Term; provided that if any of the
Tenant's Property is removed, Tenant shall repair or pay the cost of repairing
any damage to the Building or the Common Areas resulting from the installation
and/or removal thereof. 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, shall not
be considered as the Tenant's Property and shall be deemed the property of
Landlord.
16.03 At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall surrender the Demised Premises broom clean,
vacant and in good condition, reasonable wear and tear and damage by casualty,
excepted. Tenant may remove any alterations and fixtures and shall remove any
alterations or fixtures which are not usual or customary for general office use
and which would materially impair the reletting of the Demised Premises for
general office use. Tenant shall repair any structural damage to the Demised
Premises, the Building and the Common Areas and the Project Common Areas
resulting from any installation and/or removal of the Tenant's Property. Any
items of the Tenant's Property which shall remain at 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 Landlord, be deemed to have been
abandoned
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and in such case such items may be retained by Landlord as its property or
disposed of by Landlord, without accountability, in such manner as Landlord
shall determine at Tenant's Expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01 Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein.
Tenant shall be responsible for the cost and expense of all
non-structural repairs (or replacements, if required), ordinary and
extraordinary, in and to the Demised Premises (including the Building systems),
the need for which arises out of (a) the performance or existence of the
Tenant's Work or alterations, (b) the installation, use or operation of the
Tenant's Property in the Demised Premises, (c) the moving of the Tenant's
Property in or out of the Building, or (d) the act, omission, misuse or neglect
of Tenant or any of its subtenants or its or their employees, agents,
contractors, or invitees. Tenant shall promptly replace all scratched, damaged
or broken doors and glass in or about the Demised Premises and shall be
responsible for all repairs, maintenance and replacement of wall and floor
coverings in the Demised Premises and for the repair and maintenance of all
sanitary and electrical fixtures and equipment therein. Tenant shall promptly
make all repairs in or to the Demised Premises for which Tenant is responsible,
provided that any repairs to the mechanical, electrical, plumbing, heating,
ventilating or air conditioning systems of the Building shall only be made by
contractors approved by Landlord in accordance with Section 15.02 hereof. Any
other repairs in or to the Building and the facilities and systems thereof for
which Tenant is responsible shall be performed by Landlord at Tenant's expense;
but Landlord may, at its option, before commencing any such work or at any time
thereafter, during such time as PaineWebber, Inc. is no longer liable for Ten-
ant's obligations under this Lease, require Tenant to furnish to Landlord such
security, in form (including, without limitation, a bond issued by a corporate
surety licensed to do business in New Jersey) and amount, as Landlord shall deem
necessary to assure the payment for such work by Tenant.
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17.02 Landlord shall be responsible for the maintenance, repair and
replacement of the structure of the Building and the roof of the Building and
for the maintenance of the Common Areas, all which shall be maintained in
accordance with standards reasonably satisfactory to Landlord and Tenant. To the
extent that Landlord shall fail to maintain the structure of the Building, the
roof or such Common Areas, Tenant shall have the right to perform any such
maintenance work on behalf of the Landlord and Landlord, promptly after receipt
of demand therefor from Tenant, shall reimburse Tenant for any expenses incurred
by Tenant on behalf of Landlord for such maintenance, together with interest
thereon at the Late Payment Rate, calculated from the date of expenditure by
Tenant through the date of repayment by Landlord.
17.03 Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance or changes which Landlord is required
or permitted by this Lease, or required by Law, to make in or to any portion of
the Building.
ARTICLE 18 - ELECTRIC ENERGY
18.01 Tenant shall purchase the electric energy required by it in the
Demised Premises at its own expense on a direct-metered basis from the public
utility servicing the Building, and Landlord shall permit the rises, conduits
and feeders in the Building, to the extent available, suitable and safely
capable, to be used for the purpose of transmitting such electrical energy
through the Building. Landlord shall not be liable for any failure, inadequacy
or defect in the character or supply of electric current furnished to the
Building except for actual damage suffered by Tenant by reason of any such
failure, inadequacy or defect caused by the negligence or willful acts of
Landlord.
18.02 Tenant's use of electric energy in the Demised Premises shall not
at any time exceed the capacity of any of the electrical conductors and
equipment in or otherwise serving the Building. Any additional risers or other
equipment required by Tenant at any time during
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the Term shall be provided by Landlord and the actual cost thereof shall be paid
by Tenant to Landlord on demand.
ARTICLE 19 - HEAT, VENTILATION AND AIR CONDITIONING
Landlord shall, at Tenant's sole cost and expense, subject to any
guaranties or warranties made by Ground Lessor pursuant to the Guarantee,
maintain and operate the heating, ventilating and air-conditioning systems
("HVAC") serving the Demised Premises, and shall furnish HVAC in the Demised
Premises as Tenant may require.
ARTICLE 20 - OTHER SERVICES: SERVICE INTERRUPTION
20.01 Landlord shall cause the exterior of the windows of the Building
and the Common Areas to be cleaned in accordance with the standards set forth in
Exhibit "Q" annexed hereto and made a part hereof.
20.02 Landlord shall, at Tenants' sole cost and expense, cause water to
be supplied to the Demised Premises and Tenant shall pay for such as shown on
the public utility meters therefore.
ARTICLE 21 - ACCESS, CHANGES AND NAME
21.01 Landlord and its agents shall have the right, with as little
interference of Tenant's business as possible, to enter and/or pass through the
Demised Premises upon reasonable notice and at reasonable times (a) to examine
the Demised Premises and to show them to actual and prospective Superior
Lessors, Superior Mortgagees, or prospective purchasers of the Building, and (b)
to make such repairs, alterations, additions and improvements in or to the
Building and/or its facilities and equipment as Landlord is required or desires
to make. Landlord shall be allowed to take all materials into and upon the
Demised Premises that may be required in connection therewith, without any
liability to Tenant and without any reduction of Tenant's obligations hereunder.
The right of Landlord and Landlord's agent to enter into the Demised Premises
shall not include any area of the Demised Premises designated on written notice
to Landlord as a "security area" unless a representative of Tenant shall be
present, which representative Tenant agrees to have present at the Demised
Premises upon reasonable
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advance oral notice by Landlord, provided, however, that in the event of any
emergency, Landlord shall have the right to enter into any such security area
without being accompanied by such representative of Tenant but shall be
accompanied by a police officer, fireman or other public official. During the
period of eighteen (18) months prior to the Expiration Date, Landlord and its
agents may exhibit the Demised Premises to prospective tenants.
21.02 During such time as PaineWebber, Inc. or an affiliated entity is
the Tenant, Tenant may name the Building any name associated with PaineWebber,
Inc. or its Affiliates, as the same may change from time to time as the result
of mergers or consolidations or otherwise.
ARTICLE 22 - MECHANICS' LIENS AND OTHER LIENS
Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to subject
Landlord's interest or estate to any liability under the mechanic's or other
lien law. If any mechanic's or other lien or any notice of intention to file a
lien is filed against the Land, or any part thereof, for any work, labor,
service or materials claimed to have been performed or furnished for or on
behalf of Tenant or anyone holding any part of the Demised Premises through or
under Tenant, Tenant shall cause the same to be cancelled and discharged of
record by payment, bond or order of a court of competent jurisdiction within
fifteen (15) days after notice by Landlord to Tenant.
ARTICLE 23 - NON-LIABILITY AND INDEMNIFICATION
23.01 In addition to the provisions of Article 13 of this Lease, except
as set forth in the Guarantees, dated of even date herewith, by Ground Lessor
for the benefit of Tenant (collectively, the "Guarantees"), neither Landlord nor
any partner, joint venturer, director, officer, agent, servant or employee of
Landlord shall be liable to Tenant for any loss, injury or damage to Tenant or
to any other Person, or to its or their property, irrespective of the cause of
such injury, damage or loss, except to the extent caused by or resulting from
the negligence of Landlord, its agents, servants or employees in the operating
or maintenance of the Land or Building. Further, neither Landlord nor any
partner, joint ventur-
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er, director, officer, agent, servant or employee of Landlord shall be liable
(a) for any such damage caused by other tenants or Persons in, upon or about the
Land or Building, or caused by operations in construction of any private, public
or quasi-public work; or (b) even if negligent, for consequential damages
arising out of any loss of use of the Demised Premises or any equipment or
facilities therein by Tenant or any Person claiming through or under Tenant.
23.02 Notwithstanding any provision to the contrary, except as set
forth in the Guarantees, Tenant shall look solely to the estate and property of
Landlord in and to the Land and Building (or the proceeds received by Landlord
on a sale of such estate and property net of bona fide liens and expenses. In
the event of any claim against Landlord arising out of or in connection with
this Lease, the relationship of Landlord and Tenant or Tenant's use of the
Building, the Demised Premises, the Common Areas or the Project Common Areas,
Tenant, (and its successor and assigns) agrees that the liability of Landlord
arising out of or in connection with this Lease, the relationship of Landlord
and Tenant or Tenant's use of the Building, the Demised Premises, the Common
Areas or the Project Common Areas shall be limited to such estate and property
of Landlord (or sale proceeds net of bona fide liens and expenses). No other
properties or assets of Landlord or any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of any judgment
(or other judicial process) or for the satisfaction of any other remedy of
Tenant arising out of, or in connection with, this Lease, the relationship of
Landlord and Tenant or Tenant's use of the Building, the Demised Premises, the
Common Areas or the Project Common Areas. If Tenant shall acquire a lien on or
interest in any other properties or assets by judgment or otherwise, Tenant
shall promptly release such lien on or interest in such other properties and
assets by executing, acknowledging and delivering to Landlord an instrument to
that effect prepared by Landlord's attorneys.
ARTICLE 24 - DAMAGE OR DESTRUCTION
24.01 If the Building shall be partially or totally damaged or
destroyed by fire or other casualty (and if this Lease shall not be terminated
as in this
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Article 24 hereinafter provided), Landlord shall repair the damage and restore
and rebuild the Building (except for the Tenant's Property) in accordance with
the Plans and Specifications, together with such changes as may be approved by
Tenant, with reasonable dispatch after notice to it of the damage or destruction
and the collection of the insurance proceeds attributable to such damage.
24.02 Subject to the provisions of Section 24.05, if all or part of the
Demised Premises shall be damaged or destroyed or rendered completely or
partially untenantable on account of fire or other casualty, the Rent shall not
be abated or reduced, as the case may be, to the extent of payments pursuant to
Tenants' business interruption insurance allocable to rental and, subsequent to
the exhaustion of payments thereunder, the Rent shall be abated or reduced, as
the case may be, in proportion to the untenantable area of the Demised Premises
for the period from the date of the damage or destruction to the date the damage
to the Demised Premises shall be substantially repaired; provided, however,
should Tenant reoccupy a portion of the Demised Premises during the period the
repair or restoration work is taking place and prior to the date that the
Demised Premises is substantially repaired or made tenantable the Rent allocable
to such reoccupied portion, shall be payable by Tenant from the date of such
occupancy.
24.03 (a) the Demised Premises shall be totally damaged or destroyed by
fire or other casualty, or (b) the Building shall be so damaged or destroyed by
fire or other casualty that its repair or restoration requires the expenditure,
as estimated by a reputable contractor or architect designated by Landlord and
approved by Tenant, which approval shall not be unreasonably withheld, of more
than twenty percent (20%) of the full insurable value of the Building
immediately prior to the casualty, and, in either event, an engineer selected by
Landlord and approved by Tenant, which approval shall not be unreasonably
withheld or delayed, shall reasonably estimate that there will be less than two
(2) years remaining in the Term (including all Renewal Terms for which Tenant
has validly exercised the applicable Renewal Option) upon completion of
restoration of the Building, then in either such case Landlord or Tenant may
terminate this Lease by giving the other notice to such effect within ninety
(90) days after the date of the fire or other casualty. Notwithstanding anything
contained in this Lease to the
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contrary, if there shall occur such a casualty at such time as there shall be
estimated to be less than two years remaining in the Term of this Lease after
completion of restoration but prior to the time that pursuant to the provisions
of Article 39 hereof Tenant shall have the right to exercise any Renewal Option,
then, prior to Landlord terminating this Lease, Tenant shall have the right to
exercise any such Renewal Option otherwise in accordance with the provisions of
Article 39 hereof. If either party shall elect to so terminate this Lease, the
Term shall expire upon the tenth (10th) day after such notice is given and
Tenant shall vacate the Demised Premises and surrender the same to Landlord in
accordance with the provisions of this Lease. Upon the termination of this Lease
in accordance with this Section 24.03, Tenant's liability for Rent thereafter
due and payable shall cease and any prepaid portion of Rent for any period after
such date shall be refunded by Landlord to Tenant.
24.04 Except as provided for in Section 24.08 of this Lease, Tenant
shall not be entitled to terminate this Lease and 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 pursuant to this Article 24. Landlord shall use its best efforts to
make such repair or restoration promptly and in such manner as to not
unreasonably interfere with Tenant's use and occupancy of the Demised Premises,
but Landlord shall not be required to do such repair or restoration work on an
overtime basis unless fully reimbursed by Tenant.
24.05 Notwithstanding any of the foregoing provisions of this Article
24, if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (a) Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Building by fire or other casualty, or (b) the Demised
Premises shall be damaged or destroyed or rendered completely or partially
untenantable on account of fire or other casualty, then, without prejudice to
any other remedies which may be available against Tenant, there shall be no
abatement or reduction of the Rent. Further, nothing contained in
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this Article 24 shall relieve Tenant from any liability that may exist as a
result of any damage or destruction by fire or other casualty.
24.06 Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage or
to replace the Tenant's Property.
24.07 The provisions of this Article 24 shall be deemed an express
agreement governing any case of damage or destruction of the Building by fire or
other casualty, and any law providing for such a contingency in the absence of
an express agreement, now or hereafter in force, shall have no application in
such case.
24.08 Anything contained in this Article 24 to the contrary
notwithstanding, within thirty (30) days after Landlord has notice of any damage
that materially impairs Tenant's ability to conduct its business in the Demised
Premises, Landlord shall deliver to Tenant a statement prepared by a reputable
contractor approved by Tenant, which approval shall not be unreasonably withheld
or delayed, setting forth such contractor's estimate as to the time required to
repair such damage and the assumptions regarding the use of labor (including
overtime labor, if applicable) and construction methods considered in arriving
at such estimate. If the estimated time period exceeds twelve (12) months from
the date of such damage or if such estimate is not delivered to Tenant as
required, Tenant may elect to terminate this Lease by notice to Landlord not
later than thirty (30) days following receipt of such statement or, if no
statement is delivered, not later than thirty (30) days after the date such
statement was to have been delivered. If Tenant makes such election, the Term
shall expire upon the thirtieth (30th) day after notice of such election is
given by Tenant and Tenant shall vacate the Demised Premises and surrender the
same to Landlord in accordance with the provisions of this Lease. If Tenant
shall not have elected to terminate this Lease pursuant to this Article 24 (or
is not entitled to terminate this Lease pursuant to this Article 24) and such
repairs are (i) not commenced by Landlord within sixty (60) days after the date
Landlord has notice of such damage, (ii) not prosecuted substantially on the
basis specified in the contractor's estimate referred to in this paragraph so
that the re-
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pairs cannot be Substantially Completed within the estimated time period (unless
Landlord agrees to take such other measures required to Substantially Complete
such repairs within such period), or (iii) not Substantially Completed by
Landlord within twelve (12) months after the date Landlord has such notice,
subject to Unavoidable Delays, but in no event later than fifteen (15) months
after Landlord has such notice, Tenant may elect to terminate this Lease by
notice to Landlord not later than fifteen (15) days following the expiration of
either of the periods specified in clauses (i) and (iii) above or fifteen (15)
days notice if Landlord shall not be prosecuting such repairs as required by
clause (ii) hereof. Notwithstanding the foregoing, if at any time Tenant
believes that Landlord shall not be diligently prosecuting such repairs and
shall so notify Landlord, Tenant shall have the right to seek injunctive relief.
If Tenant makes such election, the Term of this Lease shall expire upon the
thirtieth (30th) day after notice of such election is given by Tenant and Tenant
shall vacate the Demised Premises and surrender the same to Landlord in
accordance with the provisions of this Lease. Upon the termination of this Lease
under the conditions provided in this Section, Tenant's liability for Rent
thereafter due and payable shall cease and any prepaid portion of Rent for any
period after such date shall be refunded by Landlord to Tenant. Landlord shall
advise Tenant of any Unavoidable Delays the Landlord shall have incurred in
connection with any such repair, promptly after the same shall have occurred and
the length thereof.
24.09 If, at any time during the Term, the Building shall be so damaged
or destroyed by fire or other casualty that its repair or restoration requires
the expenditure, as estimated by a reputable contractor or architect designated
by Landlord and approved by Tenant, which approval shall not be unreasonably
withheld, of more than twenty-five percent (25%) of the full insurable value of
the Building immediately prior to the casualty and there shall be insufficient
insurance proceeds available to Landlord to pay for the estimated cost of repair
and restoration, then Landlord may terminate this Lease, whether or not Tenant
shall have elected to terminate this Lease pursuant to Section 24.08 hereof, by
giving Tenant notice to such effect within sixty (60) days after the date of the
fire or other casualty. If Landlord shall elect to so terminate this Lease, the
Term shall expire upon the tenth (10th) day after such notice
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is given and Tenant shall vacate the Demised Premises and surrender the same to
Landlord in accordance with the provisions of this Lease. Upon the termination
of this Lease in accordance with this Section 24.09, Tenant's liability for Rent
thereafter due and payable shall cease and any prepaid portion of Rent for any
period after such date shall be refunded by Landlord to Tenant.
24.10 Notwithstanding anything contained in this Lease to the contrary,
if pursuant to the provisions of the Office Center Lease, dated of even date
herewith, between Xxxxx-PW Limited Partnership, as landlord and Tenant, as
tenant, (the "Office Lease") the tenant thereunder shall have the right to, and
shall, terminate the Office Lease in connection with a casualty and such tenant
shall be Tenant or an affiliate of Tenant, then Tenant, at Tenant's sole option,
shall also have the right to terminate this Lease simultaneously with the
termination of the Office Lease. If Tenant shall make such election, the Term of
this Lease shall expire on the date specified in such notice of election, which
date shall be not less than six (6) months nor more than eighteen (18) months
from the date of such notice, and Tenant shall vacate the Demised Premises and
surrender the same to Landlord in accordance with the provisions hereof. Upon
the termination of this Lease hereunder, Tenant's liability for Rent thereafter
due and payable shall cease and any prepaid portion of Rent for any period after
such date shall be refunded by Landlord to Tenant.
ARTICLE 25 - EMINENT DOMAIN
25.01 If the whole of the Demised Premises shall be taken by any public
or quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If fifteen percent (15%) or less of the Floor
Space of the Demised Premises shall be so taken or conveyed, this Lease shall
terminate only in respect of the part so taken or conveyed as of the day
possession shall be taken by such authority. If more than fifteen percent (15%)
of the Floor Space of the Demised Premises shall be so taken or conveyed, this
Lease shall terminate only in respect of the part so taken or conveyed as of the
day possession shall be taken by such authority, but either party shall have the
right to terminate this Lease upon
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notice given to the other party within thirty (30) days after taking such
possession. If so much of the parking facilities shall be so taken or conveyed
that the number of parking spaces necessary, for the continued operation of the
Demised Premises shall not be available, Tenant may, by notice to Landlord,
terminate this Lease as of the day possession shall be taken. If this Lease
shall continue in effect as to any portion of the Demised Premises not so taken
or conveyed, the Rent shall be reduced in the proportion which the area of the
part of the Demised Premises so acquired or condemned bears to the total area
of the Demised Premises immediately prior to such acquisition or condemnation.
Except as specifically provided herein, in the event of any such taking or
conveyance there shall be no reduction in Rent. If this Lease shall be
terminated in accordance with the provisions of this Section 25.01, this Lease
and the Term shall come to an end and expire as of the date of the taking, with
the same effect as if such date were the Expiration Date, and the Rent shall be
apportioned as of the date of such termination and any prepaid portion of Rent
for any period after such date shall be refunded by Landlord to Tenant. If this
Lease shall continue in effect, Landlord shall, at its expense, but shall be
obligated only to the extent of the net award or other compensation (after
deducting all expenses in connection with obtaining same) available to Landlord
for the improvements taken or conveyed (excluding any award or other
compensation for land or for the unexpired portion of the term of any Superior
Lease), make all necessary alterations so as to constitute the remaining Demised
Premises a complete architectural and tenantable unit, except for the Tenant's
Property, and Tenant shall make all alterations or replacements to the Tenant's
Property and decorations in the Demised Premises. All awards and compensation
for any taking or conveyance, whether for the whole or a part of the Land or
Building, the Demised Premises or otherwise, shall be property of Landlord, and
Tenant hereby assigns to Landlord all of Tenant's right, title and interest in
and to any and all such awards and compensation. Tenant shall be entitled to
claim, prove and receive in the condemnation proceeding such award or
compensation as may be allowed for the Tenant's Property, Tenant's trade
fixtures and for loss of business, goodwill, moving and depreciation or injury
to and cost of removal of the Tenant's Property, to the extent such award or
compensation shall be made by the condemning authority in addition to, and shall
not result in a re-
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duction of, the award or compensation made by it to Landlord.
25.02 If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the use and occupancy of the
Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay the Rent
in full when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award or payment which represents
compensation for the use and occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and Landlord
shall receive so much thereof as represents compensation for the period after
the Expiration Date.
25.03 In the event the premises leased pursuant to the Office Lease are
taken or such portions of said facilities are taken resulting in a termination
of the Office Lease or the Office Lease shall be terminated as a result of a
taking of the premises leased pursuant to the Data Processing Lease, and the
tenant under the Office Lease shall be Tenant or an affiliate of Tenant then
Tenant, at Tenant's option, shall have the right to terminate this Lease on the
date specified in such notice of election, which date shall be not less than six
(6) months nor more than eighteen (18) months from the date of such notice;
provided, however, that Tenant shall have the right to continue its occupancy of
the Demised Premises subject to the terms of this Lease on a month-to-month
basis (not to exceed twelve (12) months) until suitable moving arrangements are
made.
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ARTICLE 26 - SURRENDER
26.01 On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore under this Lease,
and Tenant shall remove any item of Tenant's Property therefrom required
pursuant to this Lease.
26.02 If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month subject to all of the provisions of
this Lease, except that the monthly Fixed Rent shall be twice the Fixed Rent in
effect during the last month of the Term.
26.03 No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 27 - CONDITIONS OF LIMITATION
27.01 This Lease is subject to the limitation that whenever Tenant (a)
shall make an assignment for the benefit of creditors, or (b) shall commence a
voluntary case or have entered against it an order for relief under any chapter
of the Federal Bankruptcy Code (Title II of the United States Code) or any
similar order or decree under any federal or state law, now in existence, or
hereafter enacted having the same general purpose, and such order or decree
shall have not been stayed or vacated within 30 days after entry, or (c) shall
cause, suffer, permit or consent to the appointment of a receiver, trustee,
administrator, conservator, sequestrator, liquidator or similar official in any
federal, state or foreign judicial or non-judicial proceeding, to hold,
administer and/or liquidate all or substantially all of its assets, and such
appointment shall not have been revoked, terminated, stayed or vacated and such
official discharged of his duties within 30 days of his appointment then
Landlord, at any time after the occurrence of any such event, may give Tenant a
notice of intention to end
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the Term 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) period, whether or
not the Term shall theretofore have commenced, this Lease shall terminate with
the same effect as if that day were the Expiration Date of this Lease, but
Tenant shall remain liable for damages as provided in Article 29.
27.02 This Lease is subject to the further limitations (collectively,
"Events of Default") that: (a) if Tenant shall default in the payment of any
installment of Fixed Rent, and such default shall continue for five (5) days
after invoice for same by Landlord or for five (5) days after notice of such
default, whichever is shorter, or (b) if Tenant shall, whether by action or
inaction, be in default of any of its obligations under this Lease (other than a
default in the payment of Fixed Rent) and such default shall continue and not be
remedied within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a 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 or any Superior
Lessor or prosecution for a crime (as more particularly described in the last
sentence of Section 12.02) or termination of any Superior Lease or foreclosure
of any Superior Mortgage, if Tenant shall not, (i) within said thirty (30) day
period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (ii) duly commence within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
default, and (iii) complete such remedy within a reasonable time after the date
of said notice by Landlord, (c) if Tenant shall abandon the Demised Premises, or
(d) if there shall be any default by Tenant (or any person which, directly or
indirectly, controls, is controlled by, or is under common control with Tenant)
under any other lease with Landlord (or any person which, directly or
indirectly, controls is controlled by, or is under common control with Landlord)
which shall not be remedied within the applicable grace period, if any, provided
therefor under such other lease, then in any of said cases Landlord may give to
Tenant a notice of intention to end the Term at the expiration of five (5) days
from the date of the service of such notice of intention, and upon the
expiration of said five (5) days, whether or not the Term shall theretofore have
commenced this Lease
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shall terminate with the same effect as if that day were the expiration date of
this Lease, but Tenant shall remain liable for damages as provided in Article
29.
ARTICLE 28 - RE-ENTRY BY LANDLORD
28.01 If this Lease shall terminate as provided in Article 27, Landlord
or Landlord's agents and employees may immediately or at any time thereafter
re-enter the Demised Premises, or any part thereof, either by summary dispossess
proceedings or by any suitable action or proceeding at law, or otherwise,
without being liable to indictment, prosecution or damages therefor, and may
repossess the same, and may remove any Person therefrom, to the end that
Landlord may have, hold and enjoy the Demised Premises. The word "re-enter", as
used herein, is not restricted to its technical legal meaning. If this Lease is
terminated under the provisions of Article 27, or if Landlord shall re-enter the
Demised Premises under the provisions of this Article 28, or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceedings or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the Rent
payable up to the time of such termination of this Lease, or of such recovery of
possession of the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 29.
28.02 In the event of a breach by Tenant of any of its obligations
under this Lease, Landlord shall also have the right of injunction. The special
remedies to which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies to which Landlord may lawfully be
entitled at any time and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not provided for herein.
28.03 If this Lease shall terminate under the provisions of Article 27,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 28, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance Rent, security or other-
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wise, but such monies shall be credited by Landlord against any 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 29 or pursuant to law.
ARTICLE 29 - DAMAGES
29.01 If this Lease is terminated under the provisions of Article 27,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 28, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate
amount of the Rent which would have been payable by Tenant (conclusively
presuming the average monthly Additional Charges payable for the year, or
if less than 365 days have then elapsed since the Commencement Date, the
partial year, immediately preceding such termination of re-entry) 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, over (ii) the aggregate rental value of the Demised Premises for the
same period, which amounts shall be discounted to present worth at a rate
equal to nine percent (9%) per annum; or
(b) sums equal to the Fixed Rent and the Additional Charges 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
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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, without limitation, altering and preparing the Demised Premises
for new tenants, brokers' commissions, legal fees, 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 period ending on the Expiration Date; 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 subdivision (b) to
a credit in respect of any rents from a reletting, except to the extent
that such net rents are actually received by Landlord. If the Demised
Premises or any part thereof should be relet in combination with other
space, then proper apportionment on a square foot basis shall be made of
the rent received from such reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord 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. Landlord shall not be liable in any way
whatsoever for its failure or refusal to relet the Demised Premises or any part
thereof, or if the Demised Premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such refusal or failure
to relet or failure to collect rent shall release or affect Tenant's liability
for damages or otherwise under this Lease.
29.02 Suit or suits for the recovery of such damages or, any
installments thereof, may be brought by Landlord at any time and from time to
time at its elec-
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tion, and nothing contained herein shall be deemed to require Landlord to
postpone suit until the date when the Term would have expired if it had not been
so terminated under the provisions of Article 27, or under any provision of law,
or had Landlord not re-entered the Demised Premises. Nothing herein contained
shall be construed to limit or preclude recovery by Landlord against Tenant of
any sums or damages to which, in addition to the damages particularly provided
above, Landlord may lawfully be entitled by reason of any default hereunder on
the part of Tenant. Nothing herein contained shall be construed to limit or
prejudice the right of Landlord to prove for and obtain as 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, the governing the proceedings
in which, such damages are to be proved whether or not such amount be greater
than, equal to, or less than any of the sums referred to in Section 29.01.
29.03 In addition, if this Lease is terminated under the provisions of
Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 28, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises, or any part thereof; and (c) for the breach of any covenant of Tenant
set forth above in this Section 29.03, Landlord shall be entitled immediately,
without notice or other action by Landlord, to recover, and Tenant shall pay, as
and for liquidated damages therefor, the cost of performing such covenant (as
estimated by an independent contractor selected by Landlord).
29.04 In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 29, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after demand therefor, the
same shall bear interest at the Late Payment Rate from the due date thereof
until paid, and the amounts of such interest shall be Additional Charges
hereunder.
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ARTICLE 30 - AFFIRMATIVE WAIVERS
30.01 Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any any present
or future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
30.02 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, and Tenant's use or occupancy of the
Demised Premises and use of the Common Areas, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the Demised
Premises (unless failure to do so would constitute a waiver thereof) nor attempt
to remove such action or proceeding to the law division of the Superior Court of
New Jersey.
ARTICLE 31 - NO WAIVERS
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. The receipt by Landlord of Fixed Rent or Additional
Charges with knowledge of breach by Tenant of any obligation of this Lease shall
not be deemed a waiver of such breach.
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ARTICLE 32 - CURING TENANT'S DEFAULTS
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 thirty (30) days from the
date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable attorneys' fees and expenses,
involved in collecting or endeavoring to collect the Rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, 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 or in recovering possession of the Demised
Premises after default by Tenant or upon the expiration of the Term or sooner
termination of this Lease, and interest on all sums advanced by Landlord under
this Article at the Late Payment Rate, may be sent to Landlord to Tenant
monthly, or immediately, at Landlord's option, and such among shall be due and
payable in accordance with the terms of such bills.
ARTICLE 33 - BROKER
Landlord and Tenant each represent to the other that no broker except
the Broker was instrumental in bringing about or consummating this Lease and
that it had no conversations or negotiations with any broker except the Broker
concerning the leasing of the Demised Premises. Each party agrees to indemnify
and hold harmless the other against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection therewith,
including, without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by the indemnifying party with any broker
other than the Broker. Landlord shall pay any brokerage commissions due the
Broker pursuant to a separate agreement between Landlord and the Broker.
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ARTICLE 34 - NOTICES
Any notice, statement, demand, consent, approval or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable Legal Requirement,
shall be in writing and shall be deemed to have been properly given, rendered or
made only if hand delivered or sent by United States registered or certified
mail, return receipt requested, addressed to the other party at the address
hereinabove set forth (except that after the Commencement Date, Tenant's
address, unless Tenant shall give notice to the contrary, shall be the Building)
as to Landlord, to the attention of General Counsel with a copy to the attention
of President and to Horowitz, Bross, Sinins and Imperial, 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000, Attention: Xxxxx X. Xxxxxxxx, Esq.,
and as to Tenant, to the attention of Facilities Department-Vice President, with
a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxx, Esq., and shall be deemed to have
been given, rendered or made on the day after the day so delivered or mailed,
unless mailed outside the State of New Jersey in which case it shall be deemed
to have been given, rendered or made on the third business day after the day so
mailed. Either party may, by notice as aforesaid, designate a different address
or addresses for notices, statements, demands, consents, approvals or other
communications intended for it.
ARTICLE 35 - ESTOPPEL CERTIFICATES
Each party shall, at any time and from time to time, as requested by
the other party, upon not less than ten (10) days' prior notice, execute and
deliver to the requesting party 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
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any
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event has occurred which with the giving of notice of passage of time, or both,
would constitute such a default of the requesting party, and, if so, specifying
each such event; any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Each party also shall include in any such statement
such other information concerning this Lease as the other party may reasonably
request.
ARTICLE 36 - ARBITRATION
Landlord or Tenant may at any time request arbitration, of any matter
in dispute. The party requesting arbitration shall do so by giving notice to
that effect to the other party, specifying in said notice the nature of the
dispute, and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the additional
expenses of presenting its own proof.
ARTICLE 37 - MEMORANDUM OF LEASE
This Lease shall not be recorded, however, at the request of either
party, Landlord and Tenant shall promptly execute, acknowledge and deliver to
the other party (i) a memorandum of lease in respect of this Lease sufficient
for recording, and (ii) after each of the Commencement Date, the Fixed Rent
Commencement Date, and any Renewal Term Commencement Date, either an agreement
or a restated memorandum (if a memorandum shall have been executed or recorded
as provided immediately above) stating the Commencement Date, Fixed Rent
Commencement Date or any Renewal Term Commencement Date, as the case may be,
each sufficient for recording. Failure by either party to request or to execute,
acknowledge or deliver any such memorandum or agreement, however, shall not
affect the determination of the Commencement Date, the Fixed Rent Commencement
Date or any Renewal Term Commencement Date, as the case may be. Such memorandum
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shall not be deemed to change or otherwise affect any of the obligations or
provisions of this Lease. Whichever party records such memorandum of Lease shall
pay all recording costs and expenses, including any taxes that are due upon such
recording.
ARTICLE 38 - MISCELLANEOUS
38.01 Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
38.02 No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by Landlord and Tenant.
38.03 If Tenant shall at any time request Landlord to sublet or let the
Demised Premises for Tenant's account, Landlord or its agent is authorized to
receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
38.04 Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that the provisions of
this Section 38.04 shall not be construed as modifying the conditions of
limitation contained in Article 27.
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38.05 Except for Tenant's obligations to pay Rent, the time for
Landlord or Tenant, as the case may be, to perform any of their respective
obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any Unavoidable Delays. Except as
expressly provided to the contrary, the obligations of Tenant hereunder shall
not be affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, (a) because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease due to any of the matters
set forth in the first sentence of this Section 38.05, or (b) because of any
failure or defect in the supply, quality or character of electricity, water or
any other utility or service furnished to the Demised Premises for any reason
beyond Landlord's reasonable control.
38.06 Any liability for payments or reimbursement of payments hereunder
(including, without limitation, Additional Charges) shall survive the expiration
of the Term or earlier termination of this Lease.
38.07 Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Demised Premises for which Landlord might be liable, (b) any
fire or other casualty in the Demised Premises, (c) any damage to or defect in
the Demised Premises, including the fixtures and equipment thereof, for the
repair of which Landlord might be responsible, and (d) any damage to or defect
in any part of the Demised Premises, sanitary, electrical, heating, ventilating,
air conditioning, elevator or other systems located in passing through the
Demised Premises or any part thereof.
38.08 This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. If any provision of this Lease shall, be
invalid or unenforceable, the remainder of this Lease shall not be affected and
shall be enforced to the extent permitted by law. The table of contents,
captions, headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. If any words or phrases in
this Lease shall have been stricken out or otherwise eliminated, whether or not
any other words or phrases have been added, this Lease shall be construed as if
the words or phrases so stricken out or otherwise eliminated were never included
in this Lease and no implication or inference shall be drawn from the
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fact that said words or phrases were so stricken out or otherwise eliminated.
Each covenant, agreement, obligation or other provision of this Lease on
Tenant's part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. All terms and words used in this Lease, regardless of the number or
gender in which they are used, shall be deemed to include any other number and
any other gender as the context may require.
38.09 Within thirty (30) days of each anniversary date of this Lease,
annually Tenant shall furnish to Landlord a copy of its then current audited
financial statement (or form 10-K) which shall not be distributed without the
prior authorization of Tenant.
38.10 At any time after the Commencement Date, but prior to the Fixed
Rent Commencement Date, Tenant shall have the right to request a recalculation
of Floor Space and Tenant's Fraction. In addition, at any time during the Term,
Tenant shall have the right to request a redetermination of Operating Expenses
because of a claimed increase in the floor space of improvements constructed in
the Lincoln Harbor Project, or because of a redetermination of Floor Space
pursuant to this Section, the Floor Space shall be less than 141,669. If Tenant
shall make any such request, then the Architect and an architect appointed by
Tenant shall remeasure the floors of the Demised Premises or the floor space of
the improvements in the Lincoln Harbor Project, as the case may be,in accordance
with the standards set forth on Exhibit "D" annexed hereto and made a part
hereof. If Architect and the architect appointed by Tenant shall agree, the
Floor Space, Tenant's Fraction or the Operating Expenses, as the case may be, as
determined by such architects shall be conclusive and binding upon the parties.
If the Architect and the architect appointed by Tenant shall be unable to agree
as to the Floor Space, Tenant's Fraction, or the Operating Expenses, as the case
may be, then such architects shall select a third architect (or if such
architects shall be unable to agree upon such third architect, the same shall be
selected by the American Arbitration Association or successor organization) and
such third architect shall select either the Floor Space, Tenant's Fraction or
the Operating Expenses, as the case may be, as calculated by the Architect or
the Floor Space, Tenant's Fraction or the Operating Expenses, as the case may
be, as calculated by the architect appointed
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by Tenant. In no event, however, may either the Floor Space, Tenant's Fraction
or the Operating Expenses be increased from the amounts set forth herein. Such
finding shall be conclusive and binding upon the parties.
38.11 Notwithstanding anything contained in this Lease to the contrary,
if pursuant to Section 38.12 of the Office Lease, the tenant thereunder shall
elect to cancel the Office Lease, then Tenant shall have the option to cancel
this Lease and the Term by giving thirty (30) days' notice to Landlord of such
cancellation no later than the tenth (10th) day after such date. Upon the giving
of such notice, this Lease and the Term shall expire and come to an end as of
the expiration of such thirty (30) day period provided that Landlord shall not
have delivered such premises to Tenant during such period, and Landlord and
Tenant shall be released and discharged of and from all liabilities under the
provisions of this Lease as of the date of such Termination.
In addition, if for any reason other than Tenants' fault, the
Commencement Date shall not have occurred on or before July 1, 1989, as to which
date time shall be of the essence, then, in addition to any other remedies set
forth in this Lease, Tenant shall have the option to cancel this Lease and the
Term by giving thirty (30) days' notice to Landlord of such cancellation no
later than the fifteenth (15th) day after such date. Upon the giving of such
notice, this Lease and the Term shall expire and come to an end as of the
expiration of such thirty (30) day period provided that the Commencement Date
shall not have occurred during such period, and Landlord and Tenant shall be
released from all liabilities under the provisions of this Lease as of the date
of such termination. In addition, if for any reason other than Landlord's or
Tenant's fault, the Commencement Date shall not have occurred on or before
February 1, 1990, then, on the later to occur of February 1, 1990, and the date
on which construction on the Building and the Demised Premises shall have
experienced Unavoidable Delays equal to twelve (12) months in the aggregate,
Landlord and Tenant each shall have the option to cancel this Lease and the Term
by giving thirty (30) days' notice of such cancellation to the other party. Upon
the giving of such notice, this Lease and the Term shall expire and come to an
end as of the expiration of such thirty (30) day period, and Landlord and Tenant
shall be
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released from all liabilities under the provisions of this Lease as of the date
of such Termination.
38.12 Tenant acknowledges that pursuant to the provisions of the
Agreement of Limited Partnership, dated of even date herewith, of Landlord,
Tenant, as limited partner thereunder, has pledged its partnership interest
thereunder to secure its obligations hereunder for a period of five years from
the Fixed Rent Commencement Date.
38.13 Notwithstanding anything contained herein to the contrary, Tenant
shall have the right, by written notice given to Landlord at any time prior to
October 14, 1986, to increase or decrease the Floor Space of the Demised
Premises by an amount, in the case of an increase, not to exceed the remaining
portion of the office space in the Building, and in the case of a decrease, by
any amount, including all the Floor Space, resulting in a termination of this
Lease. Within ten (10) business days after the giving of such notice (except in
the case of a decrease resulting in a termination of this Lease), the parties
hereto shall enter into an amendment to this Lease (and to any memorandum of
lease recorded in connection herewith), setting forth the amended Floor Space,
Tenant's Fraction and Tenant's Proportionate Share, if applicable.
ARTICLE 39 - EXTENSION OF TERM
39.01 Tenant shall have the option (the "Renewal Option") to extend the
Term for two (2) additional periods of ten (10) years each (the "Renewal
Terms"), shall (i) commence on the original Expiration Date and end on the date
preceding the tenth (10th) anniversary of the original Expiration Date (the
"First Renewal Term"), and (ii) commence on the date immediately succeeding the
last day of the First Renewal Term and end on the date preceding the twentieth
(20th) anniversary of the original Expiration Date (the "Second Renewal Term")
provided that (a) this Lease shall not have been previously terminated and (b)
no material Event of Default shall have occurred and be continuing as of the
date Tenant shall give the Renewal Notice (hereinafter defined). Each Renewal
Option may be exercised with respect to the entire Demised Premises only and
shall be exercisable by Tenant delivering to Landlord written notice (the "Renew
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al Notice") of Tenant's election to exercise the applicable Renewal Option at
least nine (9) months prior to the original Expiration Date with respect to the
First Renewal Term, and at lease nine (9) months prior to the tenth (10th)
anniversary of the Commencement Date with respect to the Second Renewal Term.
Upon the giving of the Renewal Notice with respect to the Second Renewal Term,
Tenant shall have no further option or right to extend the Term. If Tenant
exercises a Renewal Option, the Renewal Term with respect to which Tenant shall
exercise the Renewal Option shall be on the same terms, covenants, and
conditions as those contained in this Lease, except (i) the Fixed Rent payable
for the Demised Premises during each Renewal Term shall be determined as
provided in Section 39.03 hereof, and (ii) the provisions of Section 39.01
hereof with respect to Tenant's right to renew the Term of this Lease shall not
be applicable during the Second Renewal Term. It is expressly understood that
during the First Renewal Term that Tenant shall have the right as set forth in
Section 39.01 only with respect to the Second Renewal Term, that during the
Second Renewal Term Tenant shall have no further right to renew this Lease.
39.02 If Tenant exercises the Renewal Option applicable to the First
Renewal Term or the Second Renewal Term, as the case may be, the Fixed Rent for
the Demised Premises shall be an amount equal to the Fair Market Rent
(hereinafter defined), determined in accordance with Article 40 hereof, for the
Demised Premises.
39.03 If, for any reason whatsoever, the Fair Market Rent shall not
have been determined pursuant to Article 40 hereof by the commencement of the
First Renewal Term or Second Renewal Term, as the case may be, the Tenant shall
pay to Landlord in monthly installments until such determination, on account of
the Fixed Rent, an amount equal to the Fixed Rent in effect on the date
immediately prior to commencement of the First Renewal Term or Second Renewal
Term, as the case may be. Following the final determination of Fair Market Rent,
a reconciliation shall be made as follows: if the monthly installments of Fixed
Rent determined pursuant to this Article 39 are more than the amounts Tenant had
paid therefor, Tenant shall pay to Landlord within ten (10) days of such
determination the amount of such underpayment of Fixed Rent due.
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ARTICLE 40 - DETERMINATION OF FAIR MARKET RENT
40.01 For purposes of this Lease the term "Fair Market Rent" shall mean
the annual fair market rental value of the Demised Premises determined as if the
Demised Premises were available in the then rental market for comparable office
space in the northern New Jersey area on the terms of this Lease and assuming
that Landlord has had a reasonable time to locate a tenant who rents with the
knowledge of the uses permitted pursuant to this Lease, and that neither
Landlord nor the prospective tenant is under any compulsion to rent, and taking
into account: (i) tenant is required to pay the Operating Expenses; (ii) the
remaining Term of this Lease and any remaining Renewal Term, as well as the
portion of the Term then elapsed; (iii) the fact that the tenant is a major
tenant; (iv) the fact that Landlord will not be obligated to perform any work in
the Demised Premises to prepare the same for Tenant's occupancy or to contribute
or to loan any money on account thereof whether in the form of rent, credit,
cash or otherwise.
40.02 The Fair Market Rent shall be determined on the basis set forth
in Section 40.01 of this Article and with the assumption that the tenant need
not perform any work in order to occupy the Demised Premises for the conduct of
business.
40.03 Landlord shall give Tenant written notice (the "Rent Notice")
setting forth Landlord's determination of the Fair Market Rent (the "Landlord's
Determination"). Such notice will be sent not later than forty-five (45) days
after receipt by Landlord of each of the Renewal Notices.
40.04 Tenant shall give Landlord written notice ("Tenant's Notice"),
within forty-five (45) days after Tenant's receipt of the Rent Notice, as to
whether Tenant accepts or disputes Landlord's Determination or any portion
thereof. If Tenant in Tenant's Notice accepts Landlord's Determination, or if
Tenant fails or refuses to give Tenant's Notice as aforesaid, Tenant shall be
deemed to have accepted Landlord's Determination. If Tenant in Tenant's Notice
disputes any portion of Landlord's Determination, Tenant shall deliver to
Landlord together with Tenant's Notice, Tenant's determination of the Fair
Market Rent of the portion of the Demised Premises for which Tenant disputes
Landlord's
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Determination (the "Tenant's Determination"); simultaneously therewith Tenant
shall notify Landlord of an individual ("Tenant's Advisor") selected by Tenant
to act on its behalf for the purposes of this Article 40.
40.05 Landlord shall give Tenant written notice ("Landlord's Notice")
within ten (10) business days of after Landlord's receipt of Tenant's
Determination, as to whether Landlord accepts or disputes Tenant's
Determination. If Landlord in Landlord's Notice accepts Tenant's Determination
or if Landlord fails or refuses to give Landlord's Notice as aforesaid, Landlord
shall be deemed to have accepted Tenant's Determination. If Landlord in
Landlord's Notice disputes Tenant's Determination, Landlord shall in such Notice
advise Tenant of the name of an individual ("Landlord's Advisor") selected by
Landlord to act on its behalf for the purposes of this Article 40. If within
twenty (20) days after Tenant's receipt of Landlord's Notice, Landlord's Advisor
and Tenant's Advisor shall mutually agree upon the determination ("Mutual
Determination") of the Fair Market Rent, their determination shall be final and
binding upon the parties. If Landlord's Advisor and Tenant's Advisor shall be
unable to reach a Mutual Determination within said twenty (20) day period, both
of the advisors shall jointly select an independent real estate appraiser (the
"Appraiser") whose fee shall be borne equally by Landlord and Tenant. In the
event that Landlord's Advisor and Tenant's Advisor shall be unable to jointly
agree on the designation of the Appraiser within five (5) days after they are
requested to do so by either party, then the parties agree to allow the American
Arbitration Association or any successor organization to designate the Appraiser
in accordance the rules, regulations and/or procedures of the American
Arbitration Association or successor organization then obtaining with respect to
real estate valuation disputes.
40.06 The Appraiser shall proceed to determine the Fair Market Rent in
accordance herewith. The two determinations of the Advisors and the Appraiser
which are closest shall then be averaged and such averaged amount shall be
conclusive and binding upon Landlord and Tenant. Each party shall pay its own
counsel fees and expenses, if any, in connection with any arbitration under this
Article 40, including the expenses and fees of any Advisor selected by it in
accordance with the provisions of this Article 40. The Appraiser appointed
pursu-
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ant to this Article 40 shall be a real estate appraiser with at least ten (10)
years experience in the leasing of office space in, and valuation, of properties
which are similar in character to the Building, a member of the American
Institute of Appraisers of the National Association Real Estate Boards or
successor organization and a member of the Society of Real Estate Appraiser or
its successor organization. Neither the Appraiser nor the Advisors shall have
the power to add to, modify or change any of the provisions of this Lease.
40.07 If the Fair Market Rent shall be finally determined to be in
excess of five percent (5%) greater than Tenants' Determination, then Tenant,
within ten (10) days after receipt of the final determination may notify
Landlord of its election not to renew the Term, in which event, Tenant shall be
deemed not to have exercised the applicable Renewal Option and this Lease and
the Term shall expire as if such applicable Renewal Option had not been
exercised.
40.08 It is expressly understood that any determination of the Fair
Market Rent pursuant to this Article 40 shall be based upon the criteria stated
herein.
40.09 Anything herein to the contrary notwithstanding, the Fair Market
Rent shall not be less than the Fixed Rent payable immediately prior to the
commencement of the Renewal Term in question.
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40.10 After final determination has been made of Fair Market Rent for
any purpose of this Lease, the parties shall execute and deliver to each other
an instrument setting forth the amount thereof and the amount of Fixed Rent
payable as a result of such determination; provided, however, that failure to
execute such supplementary agreement shall not affect the determination of Fixed
Rent.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
Landlord:
XXXXX-PW HOTEL LIMITED
PARTNERSHIP
By: Xxxxx Mountain
Industries, Inc.,
general partner
By: /s/ Xxxxxxx X. Xxxxx,
----------------------------
Xxxxxxx X. Xxxxx,
Vice President
Tenant:
PAINEWEBBER INCORPORATED
By: /s/ Xxxxxx Xxxxxx,
---------------------------------
Xxxxxx Xxxxxx,
Senior Vice President
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Exhibit "A"
Description of the Building
The proposed Tower II Building is to be located at Lincoln Harbor,
Weehawken, New Jersey. The 11 story building will consist of lobbies and retail
(42,300+ square feet) on the grade and mezzanine levels. A hotel (121,700+
square feet) on the second thru fifth floors and office space on the sixth thru
eleventh floors. The gross square footage of office space is 273,500+ including
penthouse, lobby, and a portion of the atrium lobby.
The core mechanical design (HVAC, electric, plumbing, and sprinklers)
is designed to meet the build out standards in this specification. Any
modification to the base mechanicals will be at tenant's expense.
A-1
70
Exhibit "B"
Demised Premises
Floors 6, 7 and 8
B-1
71
Exhibit "C"
Fixed Rent
(a) Commencing on the Fixed Rent Commencement Date: $11.97 for years 1-4,
$13.47 for years 5-9, $16.47 for years 10-14, or $20.47 for years 15-19.
(b) Commencing on the twentieth anniversary of the Commencement Date and
terminating on the original Expiration Date, the Fixed Rent shall be an
amount equal to the lesser of (x) the Fair Market Rent, determined in
accordance with Article 40 hereof and (y) the product of the Floor Space
and Forty-Two and 45/100 Dollars. ($42.45), but in no event less than the
Fixed Rent payable during the twentieth (20th) year of the term.
C-1
72
Exhibit "D"
Floor Space
As to a demised premises, the sum of the floor area stated in square
feet bounded by the exterior faces of the exterior walls, or by the exterior or
common areas face of any wall between the premises and any portion of the common
areas, or by the center line of any wall between the premises and space leased
or available to be leased to another tenant or occupant. Any reference to floor
space of a building shall mean the floor area of all levels or stories of such
building, excluding any roof, except such portion thereof as is permanently
enclosed, and including any interior basement level or mezzanine area not
occupied or used by a tenant on a continuing or repetitive basis, and any
mechanical room, enclosed or interior truck dock, interior common areas, and
areas used by a landlord for storage, for housing meters and/or other equipment
or for other purposes. Any reference to the floor space is intended to refer to
floor space of the entire area in question irrespective of the person(s) who may
be the owner(s) of all or any part thereof.
The anticipated Floor Space of the Demised Premises is estimated to be
141,669.
D-1
73
Exhibit "E"
HOTEL/OFFICE
Land
BLOCK 34C LOT 4.04
TOWNSHIP OF WEEHAWKEN
XXXXXX COUNTY, NEW JERSEY
Commencing at a point in the easterly line of Park Avenue, said point
being N 21 degrees-21'-30"E, 1129.16 feet along the same from its intersection
with the northerly line of 15th Street, all as shown on a map entitled
"Subdivision of Properties of Xxxxx Mountain Industries, Inc.," and prepared by
Assolina & Xxxxx Engineering Company, dated March 14, 1986, revised to March 14,
1986, and running; thence,
A) N 21 degrees-21'-30" E, along said property line 86.70 feet to a point on
curve; thence,
B) Northeasterly, along the property line on a curve to the left having a
radius of 1093.01 and a radial bearing of N 14 degrees-11'-23" W through a
central angle of 25 degrees-01'-56", for an arc distance of 477.53 feet;
thence,
C) Along said property line, N 38 degrees-30'-00" E, 550.05 feet; thence,
D) Departing said property line, S 50 degrees-33'-12" E, 86.23 feet to a
point; thence,
E) N 38 degrees-52'-10" E, 383.37 feet to a point of curvature; thence,
F) Northeasterly, on a curve to the right having a radius of 40 feet through a
central angle of 90 degrees-00'-00" for an arc distance of 62.83 feet;
thence,
G) S 51 degrees-07'-50" E, 156.00 feet to a point; thence,
H) S 38 degrees-52'-10" W, 35.00 feet to the point of beginning; thence,
E-1
74
1) S 51 degrees-07'-50" E, 101.00 feet; thence,
2) N 38 degrees-52'-10" E, 121.00 feet; thence
3) S 51 degrees-07'-50" E, 124.00 feet; thence,
4) S 38 degrees-52'-10" W, 122.13 feet; thence,
5) S 8 degrees-06'-20" E, 41.04 feet; thence,
6) S 38 degrees-52'-10" W, 91.74 feet; thence,
7) S 85 degrees-50'-40" W, 41.04 feet; thence,
8) S 38 degrees-52'-10" W, 102.13 feet; thence,
9) N 51 degrees-07'-50" W, 225.00 feet; thence,
10) N 38 degrees-52'-10" E, 251.00 feet to the point of beginning.
Containing 75,071 square feet (1.72 acres).
E-2
75
[SURVEY OF LINCOLN HARBOR]
E-3
76
Exhibit "F"
Landlord's Work
F-1
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EXHIBIT "F"
XXXXX MOUNTAIN INDUSTRIES, INC.
LINCOLN HARBOR TOWER II
HOTEL/OFFICE BUILDING
March 17, 1986
78
PROJECT DESCRIPTION
The proposed Tower II Building is to be located at Lincoln Harbor,
Weehawken, New Jersey. The 11 story building will consist of lobbies & retail on
the grade and mezzanine levels. A hotel on the second thru fifth floors and
office space on the sixth thru eleventh floors. The gross square footage of
office space is 269,500+ including penthouse, lobby, and a portion of the atrium
lobby.
The core mechanical design (HVAC, electric, plumbing, & sprinklers) is
designed to meet the build out standards in this specification. Any modification
to the base mechanicals will be at tenant's expense.
In addition to the requirements described herein, the construction of
the building and all related facilities shall be in conformance with the most
recent editions of all applicable codes, standards, specifications, and
regulations.
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SITE DEVELOPMENT (Same as Xxxxx Xxxxxx Operations Building)
A. Site Preparation: Sufficient fill will be brought into the site so that all
occupied first floor elevation will be at +11.0 feet. This is above the 100 year
flood level.
1. All utilities, which will be underground, will be brought to the building
site.
2. All major supporting roads on the site will be constructed to insure
adequate access and traffic circulation, to include a bridge over railroad
right of way.
B. Building Foundations: Foundation will be supported by end bearing piles which
will be driven to bedrock. Piles will be concrete filled, steel casing, rated at
100 tons. Concrete pile caps will complete the foundation.
C. Parking: Decked parking will be provided at one (1) space for 690 sq. ft.
D. Landscaping: The area to the east of the new office building will be
developed into a large plaza leading to Harbor Boulevard.
1. All areas around building will be heavily landscaped.
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STRUCTURAL: (Same as Xxxxx Xxxxxx Operations Building)
A. Structural System Description: The primary structural system for the building
shall be concrete flat plate design for the hotel floors and structural steel
rolled members with composite deck and concrete slab and steel columns for the
office floors above.
B. Structural Loadings:
1. Live Loads
Typical Floor 100 psf
Roof per Code (incl.
(boca snow drift)
Print Center 200 psf minimum
(subject to ventilation)
of equipment)
Live Load reduction per code on floor girders, columns and foundations
only.
2. Lateral Loads
Structural Frame per Code
Cladding 30 psf minimum
C. Structural Materials:
1. Structural Steel A - 36 or A - 527,
gr. 50
2. Concrete for a 4000 psf. min.
- 3 -
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EXTERIOR ENCLOSURE (Same as Xxxxx Xxxxxx Operations Building)
A. Vertical Walls Above Grade: Wall system shall be based upon two distinct
lines of defense against water and air infiltration.
1. Wall system shall resist positive and negative loads of 35 psf.
2. Glazing System: Facade glass to be insulating type with CPA
certification. All glass thickness and heat treatment to sustain wind
loads and to resist temperature stress breakage. Limit breakage to
certification per 1,000. Fixed aluminum frames with continuous PVC
thermal break with either hardcoat anodized finish or resinous ("Kynar")
coated of selected color. Provide a glazing system utilizing neoprene
gaskets and a pressure plate system designed using the pressure equalized
rain screen principle.
3. Insulation: Rigid insulation with vapor barrier which will achieve a
total wall "R" value of 12.5 minimum installed.
4. Water Control: Control is at lime coincident with head of windows at
each level to anticipate water infiltration potential at sealant points.
Weep system incorporated at glazing enframement. There will be a
continuous vapor barrier between internal and external spaces.
5. Mock-Up and Testing: Cladding material, anchorage, glazing enframement,
glass, sealant and flashing systems will be tested for air infiltration,
water penetration, and structural performance. Extent of mock-ups will be
shown on drawing.
6. Roofing: The roofing is to be designed for controlled flow drainage.
Provide a complete insulated membrane (XXXX) roofing system; consisting of
steel framing with metal decking, covered with 5/8" type x gypsum board. A
three ply build up roof consisting of fiberglass xxxxx to be applied over
gypsum board covered by styrofoam F. M. brand insulation with a "U" value
of 0.08 BTU sq. ft. Deg F. and stone ballast.
- 4 -
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C. Parking Structure: Requirements to be determined.
D. Moisture Protection: Provide the following systems as required in
conjunction with other assemblies as follows:
1. Waterproofing: Provide fluid applied two-part urethane rubber
waterproofing (Gates) with protection board as specified by the
manufacturer.
2. Damproofing: Provide a cold applied asphalt based damproofing to all
exterior foundations not requiring waterproofing. Provide asphalt
protection board.
3. Elevator Pit Waterproofing: Capillary waterproofing (Vandex).
4. Sealants: Provide two component urethane sealant (Tremco/Dymeric) for
all building seals other than structural glazing.
5. Flashing: ASTM X000, Xxx 000, deal soft fully annealed, 0.015 in. unless
greater thickness required.
6. Roof Accessories: Premanufactured products best suited for intended use.
Provide stainless steel fabrications.
7. Insulation:
a. Fire Safing: Thermafiber Safing US Gypsum
b. Insulation: Rigid fiberglass board insulation with reinforced foil
vapor barrier facing on each side. Thickness as required for "U" value
required.
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INTERIOR - BASE BUILDING: (Same standards as Xxxxx Xxxxxx Operation
Building)
A. Entrance Lobby:
1. Floors: Granite. (costing no more than $15.00 per sq. ft.) 3 cm. min.
set in a full mortar bed (see sample)
2. Walls: Granite adhesive applied (see sample)
3. Ceilings: Portland cement plaster on suspended metal lath.
4. Lighting: Recessed incandescent.
B. Typical Floor Elevator Lobbies:
1. Floors: Carpet (allowance $2.00 per sq. ft.)
2. Walls: Vinyl (allowance $1.50 per sq. ft.)
3. Ceilings: Gypsum wallboard.
4. Lighting: Recessed incandescent.
C. General Effects Area:
1. Floors: Steel troweled concrete, sealed for dustproofing.
D. Toilets and Vestibules:
1. Floors: 1" x 1" ceramic mosaic tile with sanitary cove base, of color to
be selected, set onto waterproof membrane.
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2. Walls: All walls with 2" x 2" ceramic tile, of color to be selected, set
on moisture resistant gypsum wallboard with organic adhesive, extending to
ceiling.
a. Shaft Walls: Cavity walls with 2 hr. fire-rating, minimum STC of 47
db., consisting of 1" shaft wall liner panel, C-H studs 24" o.c., and
two layers 1/2" gypsum wallboard.
b. Fire-rates Walls: 2 hr. fire-rating and minimum STC of 48 db.,
consisting of two layers 5/8" gypsum wallboard on each side of metal
studs spaced 24" o.c., painted.
c. Non-Fire-rated Walls: One layer 5/8" gypsum wallboard on each side of
metal studs (with insulation to underside of construction, STC 45 db.)
3. Ceilings: Suspended 5/8" thick gypsum wallboard with required metal
access panels, painted with enamel.
4. Lighting: Recessed parabolic fluorescent fixtures.
5. Doors, Frames, Hardware:
a. Doors: Flush seamless hollow metal 1-3/4" thick, 16 ga., full height,
width as required, factory primed, field painted, and labeled as
fire-rated walls and partitions.
b. Frames: Welded hollow metal, 16 ga., size as required, factory
primed, field painted, and labeled at pre-rated walls and partitions.
c. Hardware: Mortise locksets with lever handles, ball
bearing hinges and parallel arm closeures; polished stainless steel
finish.
6. Toilet Partitions: Ceiling hung flush metal type with baked enamel
finish and vandalproof hardware.
7. Toilet Accessories: Stainless steel units with No. 4 satin finish,
including combination towel dispenser and disposal, napkin dispenser and
disposal, tissue dispenser, soap dispenser, grab bars, mirrors and shelves.
Provide 1/4" thick mirrors complying with F5 DD-G-451 type 1 class 1
quality 9.
8. Lavatory Countertops: "Corian" on marble grade plywood with back and
side splashes with miscellaneous metal framing.
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85
E. Stairs:
1. Stairs and Landings: Cement filled steel pan, surfaces hardened and
sealed. Underside and other exposed metal surfaces finish painted.
2. Railings, Guards: 1-1/2" diameter steel tube, finish painted.
3. Walls: Continuous metal stud and gypsum board partitions for full height
of stair enclosure. Painted finish.
4. Ceilings: Exposed construction, painted.
5. Lighting: Strip fluorescent fixtures, surface mounted.
F. Doors and Frames, Hardware.
1. Doors: Flush, hollow metal, 1-3/4" thick, 18-gauge at interior, 16-gauge
galvanized at exterior, ceiling high, width as required, factory prime,
field painted, labeled at rated walls and partitions. Provide
vision panel in all service vestibule doors.
2. Frames: Welded hollow metal, 16-gauge at interior, 14-gauge galvanized
at exterior, size as required, factory prime, field painted, labeled at
rated walls and partitions.
3. Hardware: Same as Dbc.
G. Electrical and Telephone Closets:
1. Shaft Walls: Cavity walls with 2 hr. fire-rating and minimum STC of
47db. consisting of 1" shaft wall liner panel, C-H studs at 24" o.c. and
two layers 1/2" gypsum wallboard on room side, painted. Spacing of studs to
be doubled at blind shaft condimones.
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H. Parking Area:
1. Floor: All floors above occupied areas to be waterproofed.
I. Interior Masonry Walls: Concrete masonry units complying with ASTM C90,
Grade N-1 and ASTM C145, Grade N-1, maximum density of 95 lbs.
Provide portland-cement-lime mortar complying with ASTM C270, Type N.
J. Miscellaneous Metals: Shop primed A36 steel, rolled sections. Sizes and
shapes best suited for intended use and capable of sustained imposed loads.
K. Rough Carpentry: Provide rough carpentry as required for use with other
work. Provide fire - resistance treated wood for all interior locations.
L. Ornamental Metals: ASM A167, Type 3C2 and 304 stainless steel, No.
6 mirror finish. Thickness is required to provide flat surfaces free from
distortion.
M. Paint: First line quality, alkyd enamel of PPG. Xxxxxxx or Xxxxxxxx Xxxxx.
Provide enamel finish.
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VERTICAL TRANSPORTATION
A. Materials & Equipment
1. Elevators serving the office floors of the building will consist of (5)
4000 lb. passenger elevators operating at 350 F.P.M. with 48" wide center
opening doors.
2. The elevators will be designed to provide a five minute handling
capacity of 14% of the population at an interval of 27.1 seconds.
3. Passenger elevators shall be based on Westinghouse Epoch Supervisory
Control System, center opening doors, and traffic sentinel door controls
(or equal).
4. One service elevator with a 6000 lb. capacity will be installed.
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Plumbing:
A. Sanitary System: Provide a complete system of sanitary services, including
toilet facilities, fixtures, drains, vents, water, etc., including all
connections to the work services.
1. Provide a complete plumbing system with mens and ladies facilities on
each floor to handle the total population of the Tenant. A minimum of 7
flush valve fixtures and 4 lavatories shall be provided on each floor for
each sex. Toilet facilities shall be so located that no point on the floor
is more than 200 feet from a Toilet room. Provisions shall be made in each
toilet for the physically handicapped. Four drinking fountains shall be
provided per floor.
2. Provide 4 wet stacks consisting of soil vent, cold water and hot water
to facilitate future Tenant installations.
3. All branch water connections shall include a stop valve for maintenance
purposes.
B. Hot and Cold Water Piping System:
1. Provide a system of hot and cold water piping, as required, for plumbing
fixtures, interior and exterior hose xxxxx, water coolers, etc. The hot
water system shall include a central heating plant utilizing the most
efficient energy source available. Submit for Xxxxx Xxxxxx approval an
economic analysis for the various fuel sources considered. Provide
circulation pumps and piping to assure prompt availability of water at a
minimum of 110 degrees F. The cold water system shall include pumps,
tanks and valves as required to supply water to fixtures at a minimum of
25 psig and a maximum of 85 psig.
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89
2. Provide for flushing and sterilization as required by code of all
domestic water piping.
C. Sanitary Drains and Vents: Provide a system of drains and vents to convey
sanitary wastes from the building to the sewer system.
D. Storm Drainage: Provide a system of drains and piping to convey the storm
water from the building to a point of disposal on the site.
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90
E. Plumbing Fixtures:
1. Plumbing fixtures specified are as manufactured by Kohler or American
Standard, or the equal may be furnished at Xxxxx Xxxxxx'x option.
2. Flush valves specified are as manufactured by Xxxxx. The U type flush
valves as manufactured by Xxxxxxx may be furnished at the
Contractor's option.
3. Carriers as manufactured by Xxxx, X.X. Xxxxx or Xxxx shall be
furnished.
4. All exposed metal parts and fittings on plumbing fixtures shall be
chrome plated unless otherwise called for.
5. Provide stop valves on hot and cold water lines at all plumbing
fixtures.
F. Water Closets:
1. Vitreous china, wall hung, siphon jet action, elongated bow 1-1/2
inch top spud for chrome plated exposed flush valve metal oscillating
handle 1 inch screwdriver angle stop valve, flush connection, coupling
for 1-1/2 inch top spud wall and spud flanges. White seat, with
extended back for elongated bowl, open front, no cover, stainless
steel check hinge.
2. Horizontal or vertical carrier with short foot. Use neopore gaskets
and bolt carrier to floor. Mount closet with the rim inches above
floor.
3. Equipment manufacturers and model numbers are as follows:
Bowl Afwall
Flush Valve 110
Seat Xxxxxxx 5326.114, units
G. Lavatories: Vitreous china, front overflow, antisplash rim, cast-in soap
dish American Standard "Roxalyn" pattern in 20 size. Fittings to be
American Standard "heritage" 2131 combination supply and drain fitting
with aerator spout. Drain plug with integral perforated grid and 1-1/2
inch tailpiece. Provide 3/8 inch chrome plated supply stop valves
R-2624-1 with screwdriver stop and escutcheons.
H. Drinking Fountains: Remote, wall recessed cooler, completely automatic with
precooler, tank, cooling coil, hermetic condensing unit, insulated cooling
system, serving stainless steel wall mounted fountains. A minimum of one
dual level fountain for handicapped shall be provided per floor.
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91
I. Materials:
Service Materials
------- ---------
Underground water and site Cement lined ductile iron
fire protection
Underground gas and air Welded wrapped black steel
Site storm drainage 12 inches and below - PVC or
concrete pipe
14 inches and above - reinforced
concrete
Site sanitary Cast iron or PVC
Underslab sanitary Cast iron or PVC
Above slab sanitary Cast iron
Plumbing vents Cast iron
J. Insulation: Insulate pipes and other surfaces inside the building as
follows:
1. Hot water pipes.
2. Cold water pipes.
3. Horizontal storm pipes over concreted areas including leader to roof
drain.
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Fire Protection
A. Provide a full standpipe and sprinkler system in accordance with applicable
NFPA Standards. Sprinkler system shall be hydraulically designed to deliver .1
gpm/sq. ft. in offices areas and appropriate densities in ordinary hazard areas.
Sufficient heads shall be allowed for partitioning. Standpipe system shall
include pumps and valves as required, but hose may be eliminated if permitted by
the authorities.
Xxxxx will, as part of its "base building" provide for system in the core of
the building. Distribution into floors will be part of tenant allowance.
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93
ELECTRICAL Electrical Design of the office portion of the
building is based on the following criteria. The
core work will stop at the riser panels on the
individual floors and sized to meet the following
specifications.
SCOPE The work to be furnished shall consist of the
furnishing of all labor, materials, equipment, and
appliances for the complete execution of all
electrical work indicated on the plans and/or
called for in this specification as required by
the site conditions for the proposed building, in
accordance with all rules and regulations of the
municipality and all other authorities having
jurisdiction including National Electric Code.
The scope of the work to be performed shall
include but not be limited to the following:
1. Temporary power and power provisions.
2. Installation of Distribution Switch Board and
Accessories.
3. Excavation, trenching and backfilling.
4. Installation of underground duct bank system
for primary services, and Telephone Co.
provisions.
5. Conduit and wiring for lighting and power
distribution systems.
6. Installation of all control devices and
accessories for all equipment furnished under
other divisions of these specifications.
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94
Office Building
Scope 7. Distribution equipment, panelboards, and
(Continued) feeders.
8. Distribution transformers, and accessories.
9. Lighting fixtures, lamps and installation.
10. Lighting, receptacle and power panelboards.
11. Metering provisions and equipment.
12. Misc. step-down transformers.
13. Connections to all motorized equipment and
accessories furnished by other trades.
14. Lighting standards.
15. Concrete work.
16. Devices and accessories.
17. Wire mold and wireways.
Materials and All materials, devices, appliances and
Workmanship specialties, when in multiple use, shall be
of a single manufacture to simplify spares
and repairs.
Whenever specified, or called for, the
Contractor shall furnish the following:
guarantees of durability operating capacity,
manufacturer's certified drawings, test
certificates, performance curves, etc. This
shall also include manufacturer's supervised
installation of equipment, adjustments, or
any other special service that may be
required.
Main Distribution Furnish and install where indicated, series I
Switchboards building type switchboards. Switchboards
shall consist of a completely enclosed,
self-supporting metal structure of the
required number of formed and welded vertical
panel sections, incorporation circuit
breakers, switches and other associated
equipment as indicated on the plans. All
fastenings between vertical panel sections
shall be bolted.
Lighting - Receptacle Furnish and install
and Power Panels automatic circuit break type panelboards. The
panelboards shall be of the dead-front type
and shall be in accordance with Underwriters'
Laboratories, Inc., "Standard for
Panelboards" and
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95
Office Building
Lighting-Receptacle "Standard for Cabinets and Boxes" and shall be
and Power Panels so labeled. Where panelboards are to be used as
service entrance equipment, they shall be so
labeled.
Lighting Fixtures Provide all lighting fixtures and lamps required
and Lamps for a complete installation. Fixtures shall be
mounted individually or continuous as indicated
and shall be suitable for type of mounting
shown.
Lighting circuits shall be connected to switches
and panels as indicated. Where the unbalance on
any one light panel exceeds 10 percent, this
Contractor shall rearrange the circuits to
attain an unbalance of 10 percent or less.
Provide lamps in each fixture of size and type
as called for in schedule on drawings. Lamps
shall be as manufactured by Westinghouse, G.E.
or Sylvania. All fluorescent lamps shall be cool
white, unless noted otherwise. All mercury vapor
lamps shall be delux white.
All fixtures shall be U.L. approved and shall
contain all labels.
Parking Lot and In accordance with the drawings, furnish and
Exterior Lighting install all exterior pole standards, flood
lights, bases, grounding, brackets, supports and
miscellaneous components complete with required
luminaries, feeder runs and all connections to
accommodate exterior lighting throughout.
Disconnect Switches Where required by code and as noted on drawings,
provide and install all disconnect switches to
disconnect all circuit wiring to all motor or
miscellaneous motorized units.
Fire Alarm and The Owner shall furnish, install and place in
Detection System operating condition an electronically operated,
(if required by Code) closed circuit fire alarm system as described
herein and as per local codes. All units of the
alarm system shall be listed by Underwriters
Laboratories, Inc. for fire alarm use, and the
control panel shall bear the UL label. The
system shall be installed in accordance with
requirements of the National Electric Code and
in compliance with applicable provisions of
Standard #72 published by the National Fire
Protection Assoc.
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96
Office Building
Telephone and Conduit Furnish and install conduit for underground
telephone service from exterior of building to
telephone equipment room.
Furnish black painted 1" plywood mounting board
in telephone equipment room.
SPECIFICALLY EXCLUDED:
Telephone service
Telephone equipment
All telephone wiring within the building
including but not limited to wiring, shielded
cable, conduit telephone floor and wall outlets,
and any other equipment required for public or
private telephone system.
Equipment Furnished by The Electrical Contractor shall provide all
Others labor and material required for all equipment
furnished by others or as indicated on the
drawings. The Electrical Contractor shall be
fully responsible for a complete electrical
system left in operating order. This work shall
include but not be limited to the following
principal items of work:
1. HVAC equipment.
2. Plumbing equipment including starters,
aquastats, solenoid valves, etc.
3. Miscellaneous motor starters, thermostats,
and accessories.
4. In general - special owners equipment and
misc. areas where solid connections are
required.
5. Miscellaneous vending equipment.
6. Electrical contractor shall furnish and
install all connections to starters and
equipment furnished by all trades and or
the Owners.
Emergency and Exit
Lighting Units Furnish and install all 12 volt - D. C.
emergency lighting units as manufactured by the
Dual-Lite Company, Lightalarm Co., or approved
equal. Unit shall contain Underwriters Labels.
Wiring for Elevators Provide all power and control wiring to
facilitate the elevator installation, all in
accordance with manufacturers detail drawings
and diagrams. Provide all required disconnect
switches, pit lights, shaft outlets, control and
lighting circuits, and all wire.
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Office Building
Wiring for Elevators conduit, etc. as required for the complete
(Continued) installation.
Service and Metering Provide two 4" schedule 40 PVA-conduits from the
Utility Company pole to the transformer pad.
Primary feeder will be installed and connected
by the Utility Company. The conduit riser on the
pole and transformer pad to be galvanized rigid
steel.
General Lighting and General office lighting shall be 75 F.C. using
Convenience Receptacles commercial recessed 2' x 4' fluorescent
fixtures.
Allowance to be 1 per 80 square feet of net
office area.
Hallways shall contain maximum 20 F.C.
fluorescent fixtures.
Lobby lighting shall be as designed and directed
to the Owner.
All fluorescent fixture lamps shall be as
manufactured by G.E., Sylvania, or Westinghouse
equal.
One (1) 110 volt duplex receptacle on standard
Circuiting allowed shall be for each 100 sf
of floor area.
SPECIFICALLY EXCLUDED
FORM ELECTRICAL WORK Music systems
Intercom systems
Specific tenants equipment electrical
requirements for computer room or other
specialty equipment.
HEATING, VENTILATING, AND
AIR CONDITIONING Design for the office space is based on the
following criteria. The core work stops at the
vertical risers ready for horizontal
distribution on the floors.
Design Conditions Summer Outside 95 degrees F.D.B. 76 degrees F.W.B.
Summer Inside 78 degrees F.D.B.+2 F 50 percent R.H.+5
Winter Outside 13 degrees F. 15 MPH wind
Winter Inside 72 degrees F.D.B.
Zoning Each area having different heat gain
characteristics caused by exposure i.e. North,
East, West, South and corners will be zoned.
Interior zones based on approximately one (1)
per 3000 sq.ft. with one (1) office per 250
sq.ft. Equipment, machine placement, people
density may be separately zoned and
independently temperature-controlled during the
heating and cooling cycle.
Human Occupancy Cooling Design: 250 BTU sensible heat and 200
latent heat per person using 1
person per 200 sq. ft.
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98
Office Building
Air Quantities Primary air to be based upon a 20-22 degree
temperature difference. A supply air limit of 3
degrees F. of heat pickup is to be transferred
from the supply duct work to the surrounding
ambient.
Ventilation air quantities.
Electric Loads Based upon actual installed wattage of ceiling
lights or a maximum of 3 1/2 xxxxx per sq. ft.
for all office areas including 1/2 watt per sq.
ft. for outlets.
Design of Ductwork Size according to static regain method as
derived from data in ASHRAE Guide.
Grilles, Registers, and Supply grilles or registers face velocities
Ceiling Outlets limited to 800 FPM, supply grilles to be
equipped with volume control.
Return air grilles or registers; face velocity
limit to 600 FPM.
Ceiling diffusers shall be perforated face type.
Ceiling diffuser neck velocities limited to 800
FPM equipped with control grids and selected for
NC 45 maximum.
Office Areas The basic engineering concept of HVAC for use in
this building incorporates the latest
technological information available, to provide
a system which will be most economical to
maintain, both from the usage of energy as well
as the life of the equipment installed.
The envelope system of heating, using hot water
baseboard, together with a variable air volume
cooling system provides the most versatile and
most comfortable environment for this climate.
The primary heating of the building is provided
along the perimeter areas of the building, using
hot water baseboard heating which is continually
modulated in temperature with the outdoor
temperature.
The air system which provides ventilation and
cooling is a variable air volume system so that
just the right amount of air is provided for
minimum ventilation re-
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99
Office Building
Office Areas quirements and minimum cooling requirements to
(Continued) maintain the space temperatures.
The air conditioning, heating and ventilating
system will be designed and installed to conform
to local codes, ordinances, as well as the BOCA
Code.
The system will consist of chilled water air
conditioning units with associated duct work to
provide adequate air distribution to all parts
of the building. All duct work will be installed
in accordance with SMACNA and ASHRAE.
Cafeteria, computer rooms, special use areas,
special exhaust requirements, etc. can be
provided with individual controls, but are not
included in base building.
Fresh air will be provided through the air
conditioning units to provide filtered and
tempered fresh air during the operation of
system.
All toilets and janitor's closets will be
exhausted by fans, using excess air from the air
conditioning systems.
During occupied periods, fans in the air
handling units will run constantly. The
operation of all equipment will be completely
automatic to maintain the temperature of the
building based upon the requirements for heating
or cooling.
All refrigeration piping will be Type L copper
tubing with brazed joints.
All hot water piping will be schedule 40 black
steel cast fittings, or copper tubing.
Exhaust Ventilation Lunch rooms and conference room to be exhausted
with manual switches.
General Mechanical Building heating system shall consist of a
Notes boiler system sized for 120% of the building
heating loss.
Entire ceiling void to be used as a return air
renew.
Office system is to be set for economy winter
cycle below 55 degrees with the ability to use
100% outside air for cooling by modulating fresh
air, return and release.
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100
Office Building
General Mechanical All equipment shall be installed properly
Notes isolated from building structures to prevent
noise and vibration.
Elevation of thermostat to be 5'0" above floor
or in return air slots of light fixtures.
Control system to be proportioning type. Except
limit control being two (2) position.
Refrigeration units shall be of centrifugal
electric drive type with fire proof water tower
with capacity for unloading each compressor.
All refrigeration lines are to be sized with
manufacturer's recommendations.
Static pressure controller shall be provided for
fans equipped with variable volume inlet vanes.
Control panels where applicable shall be
provided with indicating pilot lights for
operation of fans condensing units, boilers,
and pumps showing on or off mode. Supply air
temperature, return air temperature, mixed air
temperature and outside air temperature.
All chilled water piping is to be insulated with
3'4 molded fiberglass pipe insulation with
vapor barrier hot water as required by BOAC.
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101
Exhibit "G"
Loan Terms
PRINCIPAL AMOUNT: Up to $87 per square foot of
Floor Space
SECURITY: Senior leasehold mortgage, subordinated fee, no
personal liability
G-1
102
Exhibit "H"
Operating Expenses
Operating Expenses: The sum of the following: (a) The operating cost
and expense (whether or not within the contemplation of the parties) for the
repair, maintenance, and operation of the Common Areas, of the Building and
Land, as set forth in detail below; and (b) the Operating Expenses (as such term
is defined in the Ground Lease of the Land upon which this Building is located,
dated of even date herewith) attributable to the Demised Premises thereunder
through the RCOEA. Operating Expenses shall mean the operating costs specified
in Category A hereof to the extent that such costs are properly allocable to the
operation, repair and maintenance of the Common Areas of the Building and Land
during the year, it being understood that, notwithstanding anything to the
contrary contained herein:
(i) any cost allocable to the items specified in Category B hereof
shall be excluded from Operating Expenses; and
(ii) the Operating Expense for each year shall, if the Building shall
not have been ninety-five percent (95%) occupied by tenants
during such year, be calculated as though the Building had been
ninety-five percent (95%) occupied by tenants during such year
(in no event, however, shall Tenant be required to pay in excess
of Landlord's actual cost).
Items Included in Building and Land Common Area Operating Expense
("Category A"):
1. Labor costs (as hereinafter defined) for the services of the
following classes of employees of Landlord for the portion of
their time reasonably devoted to performing services required in
connection with the operation, repair and maintenance of the
Common Areas of the Building and Land;
(i) the property manager, his
H-1
103
assistants and the clerical staff attached to the Building superintendent's
office; provided, however, that such expenses with regard to a property
manager and his staff shall not be included within Operating Expenses in
the event Landlord engages a managing agent;
(ii) elevator operators;
(iii) window cleaners, miscellaneous handymen, and cleaning
services for the Common Areas;
(iv) cleaners and janitors employed in the Building for the
performance of services with respect to the exterior or interior of the
Common Areas of the Building and Land or the sidewalks adjoining the
Building;
(v) watchmen, caretakers and persons engaged in patrolling and
protecting the Common Areas of the Building and Land; and
(vi) carpenters, engineers, firemen, mechanics, electricians and
plumbers engaged in the operation, repair and maintenance of any part of
the Common Areas of the Building and Land, and the heating, air
conditioning, ventilating ("HVAC") plumbing, electrical and elevator
systems of the Common Areas of the Building and Land.
2. the cost of tools, equipment, materials and supplies used in the
operation, repair and maintenance of the Common Areas of the Building;
3. amounts charged to Landlord by independent contractors for services,
materials, and supplies furnished in connection with the operation, repair,
maintenance and cleaning of any part of the Common Areas of the Building and
Land excluding such work or service performed for a tenant, and the HVAC,
plumbing, electrical and elevator systems of the Common Areas of the Building;
4. premiums for casualty, including fire (with extended coverage) and
public liability insurance maintained by Landlord in respect of the Common
Areas, the Building and the Land;
H-2
104
5. charges (including applicable taxes) for utilities (except utilities
for the use of any tenant) required in the operation of the Common Areas of the
Building and Land;
6. water charges and sewer rents of the Common Areas of the Building;
7. the cost of painting or otherwise decorating any part of any Floor
Space in the Common Areas of the Building, but such cost shall not include any
painting, repainting, decorating cost incurred in connection with the
occupancy of any tenant;
8. the cost of furnishing HVAC services during business hours on
business days to the Common Areas of the Building;
9. the management fees paid to a third party managing the Building
which are not in excess of the then prevailing rates for management fee of other
first-class office facilities in Xxxxxx County;
10. reasonable legal, accounting and other professional fees with
respect to operation of the Building, except insofar as related to the
financing, refinancing, construction on, or sale of the Land and/or Building;
and
11. if no managing agent is employed four percent (4%) of the resulting
total (excluding those items contemplated in (i) and 9.) of all of the foregoing
items for Landlord's office administration and overhead.
Operating Expense shall be "net" only, and for that purpose shall be
reduced by the amounts of any reimbursement or credit in respect of any
Operating Expense received by Landlord.
"Labor Costs" shall mean all expense incurred by Landlord which shall
be directly related to employment of personnel, including amounts incurred for
wages, salaries and other compensation for services, payroll, social security,
unemployment and other similar taxes, workmen's compensation insurance,
disability benefits, pensions, hospitalization, retirement plans and group
insurance, uniforms and working clothes and the cleaning thereof,
H-3
105
and expenses imposed on Landlord pursuant to any collective bargaining
agreement.
Notwithstanding anything to the contrary contained in this Lease these
items are excluded from Building Operating Expense ("Category B"):
1. the cost of any electric current furnished to the Demised Premises
or to other leased or leasable portions of the Building;
2. the cost of any work or service performed for or facilities
furnished by any tenant or by Landlord pursuant to an agreement with any such
tenant (including Tenant) at such tenant's cost either directly or through rent,
including without limitation, the cost of tenant installations and decorations
incurred in connection with preparing space for new tenants;
3. the cost of installing, operating and maintaining any special
facilities, such as broadcasting facilities or luncheon, athletic or
recreational club;
4. Landlord's costs in respect of officers and executives of Landlord;
however, the property manager shall not be deemed such an officer or executive;
5. the cost of any insurance premium to the extent that Landlord is
entitled to be reimbursed therefor by any tenant in the Building;
6. the cost of any work or service performed for or facilities
furnished to any tenant of the Building (other than Tenant);
7. the cost of any items for which Landlord is reimbursed through the
proceeds of insurance or otherwise compensated or has the right to be
compensated by any tenant (including Tenant) of the Building;
8. the cost of any tools, equipment, materials and supplies, repairs,
alterations, additions, charges, replacements and other items which under
generally accepted accounting principles are or should be properly classified as
capital expenditures except for the portion of the useful life thereof that
falls within such year;
H-4
106
9. any costs directly or indirectly incurred in furnishing overtime
HVAC or overtime use of elevators or other services to Tenant or any other
tenant of the Building;
10. depreciation of the Building or interest or amortization expense
with respect to the Building Mortgage;
11. any costs allocable to activities relating to the solicitation or
entering into of leases of space in the Building or in connection with the
collection of money under such lease or the enforcement of same;
12. any monies whatsoever owed by another tenant of the Building to
Landlord;
13. leasing commissions;
14. franchise or income taxes imposed upon Landlord;
15. ground rent;
16. financing costs; and
17. legal fees incurred in connection with the negotiation of, or
disputes arising out of, any space lease in the Building.
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Exhibit "I"
Plans and Specifications
The Plans and Specifications for Landlord's work are contained in the
Exhibit entitled Landlord's Work. In addition to the Plans and Specifications
for Landlord's Work, such Exhibit includes items in excess thereof, which items
are identified as budgeted amounts, which amounts are based upon and price as of
the date hereof, and which prices are used for estimating purposes only.
In the event Tenant elects to have those budgeted items of Tenant's
Work performed by the Landlord, Tenant shall reimburse Landlord in such amount
for that specific work, increased by such increases, if any, as may occur in
construction or labor costs.
I-1
108
Exhibit "J"
Tenant's Work
Tenant's Work shall consist of the work performed by Tenant in addition
to Landlord's Work to finish the interior of the shell of the Building to
Tenant's requirements.
Within the Landlord's Work Exhibit are items in excess of Landlord's
Work obligation which items are identified as budgeted amounts, which amounts
are based upon the 1986 price and which prices are used for estimating purposes
only.
In the event Tenant elects to have those budgeted items of Tenant's
Work performed by the Landlord, Tenant shall reimburse Landlord in such amount
for that specific work, increased by such increases, if any, as may occur in
construction or labor costs.
J-1
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Exhibit "K"
Lincoln Harbor Project
K-1
110
[SURVEY OF LINCOLN HARBOR PROJECT]
111
Exhibit "L"
Parking Plan
The parking shall be located on the parking decks constituting a portion of the
premises based pursuant to the Office Lease.
L-1
112
Exhibit "M-1"
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ____ day of ___________, 198__, by and
between ___________ , a ________ corporation having an office at
________________ (the "Mortgagee"), and PAINEWEBBER INCORPORATED having an
office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Space
Tenant").
WITNESSETH :
WHEREAS, the Mortgagee is the owner and holder of a Promissory Note,
dated of even date herewith, in the amount of $______ by XXXXX-PW HOTEL LIMITED
PARTNERSHIP (the "Landlord"), payable to the Mortgagee (the "Note"), which Note
is secured by a Mortgage, dated of even date herewith, between the Landlord, as
mortgagor, and the Mortgagee, as mortgagee (the "Mortgagee"), covering the
Landlord's right, title and interest in the Building and any other improvements
located on the Land, as such terms are defined in the Agreement of Lease (the
"Ground Lease"), dated __________ , 1986, between Fee Owner, as landlord, and
the Landlord, as tenant, and the leasehold estate created thereby (the
"Leasehold Estate") in the land, located in the Lincoln Harbor Project, in
Weehawken, New Jersey, as such land is more particularly described in Exhibit
A annexed hereto and made a part hereof (said Land, Building, improvements and
such other property being hereinafter collectively referred to as the
"Premises"), and pursuant to which Mortgage Xxxxx Mountain Industries, Inc.
("Fee_Owner") executed the same for purposes of subordination of its fee
interest in the Land to the Mortgagee; and
WHEREAS, the Space Tenant has entered into a lease (the "Space Lease")
with the Landlord, dated as of ___________ , 1986, covering a portion of the
Premises (the "Demised Premises"); and
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WHEREAS, the parties hereto desire to provide inter alia for the
non-disturbance of the Space Tenant by the Mortgagee.
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, and intending to be legally bound thereby, the Mortgagee and
the Space Tenant hereby covenant and agree as follows:
1. The Space Tenant covenants and agrees that the Space Lease shall at
all times be subject and subordinate in each and every respect to the Mortgage
and the lien thereof and to all renewals, extensions, supplements, amendments,
modifications, consolidations and replacements of such Mortgage, with the same
force and effect as if the Mortgage had been executed and delivered prior to the
execution and delivery of the Space Lease and without regard to the order of
priority of recording of the Mortgage and the Space Lease or any Memorandum of
the Space Lease.
2. Mortgagee expressly agrees that no subsequent modification of the
Mortgage shall adversely affect in any material respect any of Space Tenant's
rights under the Space Lease, materially increase Space Tenant's obligations
under the Space Lease or materially diminish Landlord's obligations under the
Space Lease.
3. The Space Tenant and Mortgagee agree that if any act or omission of
Landlord would give Space Tenant the right, immediately or after lapse of a
period of time or after notice or after both, to cancel or terminate the Space
Lease, or which Space Tenant claims gives it the right, immediately or after
lapse of a period of time or after notice or after both, to cancel or terminate
the Space Lease, or to claim a partial or total eviction, Space Tenant shall not
exercise such right (a) until and unless it has given written notice of such act
or omission to Mortgagee and any successor or assign whose name and address
shall previously have been furnished to Space Tenant, and (b) until a thirty
(30) day period for remedying such act or omission shall have elapsed following
the giving of such notice and following the time when Mortgagee shall have
become entitled under the Mortgage to remedy the same or such longer period as
may be reasonably required if such condition is not susceptible to remedy within
such thirty (30) day period provided Mortgagee commences and diligently pursues
such
M-1-2
114
remedy (which reasonable period shall in no event be less than the period to
which Landlord would be entitled under the Space Lease or otherwise, after
similar notice, to effect such remedy).
The Space Tenant and Mortgagee further agree that in the event of any
default on the part of the Landlord, arising out of or accruing under the
Mortgage, whereby the Mortgage might be accelerated, terminated or foreclosed by
the Mortgagee, by reason of any such default or defaults, the Mortgagee will
given written notice thereof to the Space Tenant at the address set forth
herein, or its successor or assigns whose name and address previously shall have
been furnished to the Mortgagee in writing, and after the time when the Landlord
shall have become entitled under the Mortgage to cure such defaults, grant to
the Space Tenant a reasonable time (in no event to exceed ninety (90) days, for
all defaults other than payment of principal or interest on the Mortgage, for
which the time period shall be limited to ten (10) business days), which shall
be not less than the period of time granted to the Landlord by the terms of the
Mortgage, after the giving of such notice by the Mortgagee to the Space Tenant
to cure or to undertake the elimination of such defaults, provided that after
receipt of such notice, Space Tenant shall with due diligence give the Mortgagee
notice of intention to remedy such act or omission, and to the extent possible
and reasonably reasonable shall commence and continue to remedy such act or
omission, it being expressly understood that such right on the part of the Space
Tenant to cure any such default or defaults shall not be deemed to create any
obligation on the Space Tenant's part to cure or to undertake the elimination of
any such default or defaults.
4. As long as no default under the Space Lease exists which is
continuing beyond the expiration of any applicable grace period, which would
entitle the Landlord to terminate the Space Lease or dispossess the Space Tenant
thereunder as of the date Mortgagee files a lis pendens in, or otherwise
commences, a foreclosure action or any time thereafter, the Mortgagee shall not
name the Space Tenant as a party defendant to any action for foreclosure or
other enforcement thereof, nor shall the Space Lease be terminated by the
Mortgagee in connection with or by reason of foreclosure or other proceedings
for the enforcement of the Mortgage or by reason of a transfer of the Landlord's
interest under the Space Lease or under
M-1-3
115
the Ground Lease or the Fee Owner's interest in the Land pursuant to an
assignment in lieu of foreclosure, or otherwise, and any sale, or assignment
pursuant thereto shall be subject to the Space Lease nor shall the Space Tenant
S use or Possession of the Demised Premises be interfered with by the Mortgagee
or any such assignee or purchaser, except that the person acquiring the interest
of the Landlord or Fee Owner as a result of any such action or proceeding and
such person's successors and assigns (any of the foregoing being hereinafter
referred to as the "Successor") shall not be (a) subject to any credits,
offsets, defenses or claims, not expressly provided for in the Space Lease,
which the Space Tenant might have against any prior landlord, (b) bound by any
previous modification or amendment of the Space Lease or by any prepayment of
more than one month's Fixed Rent or Additional Charges (as such terms are
defined in the Space Lease), unless such modification or prepayment shall have
been made with the Mortgagee's prior written consent, or (c) liable for any act
or omission of any prior landlord which constitutes a default under the Space
Lease, provided, however, Successor shall be liable for any such default or
defaults which are continuing beyond the time where the interest of the Landlord
under the Space Lease has been transferred to the Successor.
5. If the interest of the Landlord under the Space Lease or under the
Ground Lease or the interest of Fee Owner in the Land shall be transferred to
the Mortgagee by reason of foreclosure or other proceedings for enforcement of
the Mortgage or pursuant to any assignment in lieu of foreclosure, or otherwise,
the Space Lease shall not terminate but shall continue in full force and effect
as, or as if it were, a direct lease between the Successor, or its designee and
Space Tenant, whereby the Space Tenant shall be bound to the Successor, and,
except as provided in this Agreement, the Successor shall be bound to the Space
Tenant, under all of the terms, covenants and condition. of the Space Lease for
the balance of the term thereof remaining, and the Space Tenant does hereby
agree to attorn to the Successor, including the Mortgagee if it be the
Successor, as its landlord, to affirm its obligations under the Space Lease and
does agree to make payments of all sums due under the Space Lease to the
Successor. Space Tenant shall promptly execute and deliver any instrument that
Mortgagee may reasonably request to evidence such attornment.
M-1-4
116
6. If and to the extent that the Space Lease or any provision of law
shall entitle the Space Tenant to notice of any mortgage, the Space Tenant
acknowledges and agrees that this Agreement shall constitute said notice to the
Space Tenant of the existence of the Mortgage.
7. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
their respective heirs, representatives, successors and assigns.
8. Nothing contained in this Agreement shall in any way impair or
affect the lien created by the Mortgage, except as specifically set forth
herein.
9. The Space Tenant agrees that this Agreement satisfies any condition
or requirement in the Space Lease relating to the granting of a non-disturbance
agreement. The Space Tenant and Mortgagee agree that Mortgagee shall be deemed a
"Superior Mortgagee" as such term is defined in the Space Lease, subject however
to the terms and provisions of this Agreement. The Space Tenant further agrees
that in the event there is any inconsistency between the terms and provisions
hereof and the terms and provisions of the Space Lease dealing with
non-disturbance by the Mortgagee, the terms and provisions hereof shall be
controlling.
The Mortgagee agrees that this Agreement satisfies any condition or
requirement in the Mortgage (or mortgage commitment) relating to the granting of
a subordination agreement and attornment agreement. The Mortgagee further agrees
that in the event there is any inconsistency between the terms and provisions
hereof and the terms and provisions of the Space Lease dealing with
subordination and attornment by the Space Tenant, the terms and provisions
hereof shall be controlling.
10. The Space Tenant acknowledges that it has notice that the Space
Lease and the rent and all other sums due thereunder have been assigned to the
Mortgagee as part of the security for the note secured by the Mortgage.
11. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement must
M-1-5
117
be in writing and mailed to the party to whom the notice, demand or request is
being made by certified or registered mail, return receipt requested, at its
address set forth above. Any party may change the place that notices and demands
are to be sent by written notice delivered in accordance with this Agreement.
12. This Agreement shall be governed by the laws of the State of New
Jersey. If any term of this Agreement or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the remainder
of this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
13. Each of the parties hereto agrees to execute and deliver, upon the
request of the other, such documents and instruments (in recordable form, if
requested) as may be necessary or appropriate to fully implement or to further
evidence the understandings and agreements contained in this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
Mortgagee:
By: ________________________
Space Tenant:
PAINEWEBBER INCORPORATED
By: _______________________
M-1-6
118
[NOTARY PAGE]
M-1-7
119
EXHIBIT A
Land
M-1-8
120
Exhibit "M-2"
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ___ day of ___________, 1986, by and
between ___________, a ________________ having an office at ______________
("Superior Lessor"), and PAINEWEBBER INCORPORATED having an office at 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Space Tenant").
WITNESSETH:
WHEREAS, XXXXX MOUNTAIN INDUSTRIES, INC. ("Ground Lessor") is the owner
of the land (the "Land") described in Schedule "A" annexed hereto and made a
part hereof; and
WHEREAS, Ground Lessor has entered into a ground lease (the "Superior
Lease"), dated as of __________ , whereby Ground Lessor demised and leased, as
ground lessor, all of the Land to Superior Lessor; and
WHEREAS, Superior Lessor has become the landlord under the entered
ground lease (the "Ground Lease"), dated as of __________, 1986, whereby Ground
Lessor demised and leased, all of the Land to XXXXX-PW HOTEL LIMITED
PARTNERSHIP ("Ground Lessee"); and
WHEREAS, Space Tenant has entered into a lease (the "Space Lease") with
Ground Lessee, dated as of ___________, 1986, covering a portion of the space in
the building known as the [Hotel/Office Building] (the "Demised Premises"), as
more fully described in such Space Lease; and
WHEREAS, the parties hereto desire to provide inter alia for the
non-disturbance of Space Tenant by Superior Lessor.
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, and intending to
M-2-1
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be legally bound thereby, Superior Lessor and Space Tenant hereby covenant and
agree as follows:
1. Space Tenant covenants and agrees that the Space Lease shall at all
times be subject and subordinate in each and every respect to the Ground Lease
and to all renewals, extensions, supplements, amendments, modifications,
consolidations and replacements of such Ground Lease, with the same force and
effect as if the Ground Lease had been executed and delivered prior to the
execution and delivery of the Space Lease and without regard to the order of
priority of recording of the Ground Lease and the Space Lease or any Memorandum
of the Space Lease.
2. Space Tenant and Superior Lessor agree that if any act or omission
of Ground Lessee would give Space Tenant the right, immediately or after lapse
of a period of time or after notice or after both, to cancel or terminate the
Space Lease, or which Space Tenant claims gives it the right, immediately or
after lapse of a period of time or after notice or after both, to cancel or
terminate the Space Lease, or to claim a partial or total eviction, Space Tenant
shall not exercise such right (a) until and unless it has given written notice
of such act or omission to Ground Lessee and Superior Lessor whose name and
address shall previously have been furnished to Space Tenant, and (b) until a
thirty (30) day period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when Superior Lessor
shall have become entitled under the Ground Lease to remedy the same or such
longer period as may be reasonably required if such condition is not susceptible
to remedy within such thirty (30) day period provided Superior Lessor commences
and diligently pursues such remedy (which reasonable period shall in no event be
less than the period to which Ground Lessee would be entitled under the Space
Lease or otherwise, after similar notice, to effect such remedy).
3. As long as no default under the Space Lease exists which is
continuing beyond the expiration of any applicable grace period, which would
entitle Ground Lessee to terminate the Space Lease or dispossess Space Tenant
thereunder, Superior Lessor shall not name Space Tenant as a party defendant or
otherwise in any suit, action or proceeding brought to enforce any rights
granted to Superior Lessor under its Ground Lease, and Superior Lessor will not
terminate the Space Lease or take any
M-2-2
122
action to recover the premises demised to Space Tenant or affect or disturb
Space Tenant's possession or rights under the Space Lease.
4. If Superior Lessor shall enter into and become lawfully possessed of
the Demised Premises and shall succeed to the rights of Ground Lessee under the
Space Lease by reason of the termination of the Ground Lease or otherwise, and
if Space Tenant is not then in default under the Space Lease beyond the time
permitted therein to cure such default, then (a) the Space Lease shall not
terminate, (b) Space Tenant shall attorn to Superior Lessor, and recognize it as
its landlord, such attornment to be upon the then executory terms and conditions
of the Space Lease, and (c) Superior Lessor shall accept such attornment and
recognize Space Tenant as Superior Lessor's lessee under the Space Lease. Upon
such attornment and recognition, the Space Lease shall continue in full force
and effect as, or as if it were, a direct lease between Superior Lessor and
Space Tenant, upon all of the then executory terms, conditions and covenants as
set forth in the Space Lease and which shall be applicable after such
attornment, except that Superior Lessor shall not be (i) liable for any previous
act or omission of Ground Lessee which constitutes a default under the Space
Lease; (ii) subject to any offset or defenses not expressly provided for in the
Space Lease which Space Tenant might have against Ground Lessee; (iii) bound by
any prepayment of more than one month's [Fixed Rent] or [Additional Charges] (as
such terms are defined in the Space Lease); and (d) bound by any amendment or
modification of the Space Lease made without Superior Lessor's prior written
consent.
5. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
their respective heirs, representatives, successors and assigns.
6. Space Tenant and Superior Lessor agree that this Agreement satisfies
any condition or requirement in the Space Lease relating to the granting of a
non-disturbance agreement. Space Tenant and Superior Lessor agree that Superior
Lessor shall be deemed a "Superior Lessor" as such term is defined in the Space
Lease, subject however to the terms and provisions of this Agree-
M-2-3
123
ment. Space Tenant and Superior Lessor further agree that in the event there is
any inconsistency between the terms and provisions hereof and the terms and
provisions of the Space Lease dealing with non-disturbance by Superior Lessor,
the terms and provisions hereof shall be controlling.
7. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement must be in writing and mailed to the party to whom the
notice, demand or request is being made by certified or registered mail, return
receipt requested, at its address set forth above. Any party may change the
place that notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
8. This Agreement shall be governed by the laws of the State of New
Jersey. If any term of this Agreement or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Agreement or the application of such term to any person or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
9. Each of the parties hereto agrees to execute and deliver, upon the
request of the other, such documents and instruments (in recordable form, if
requested) as may be necessary or appropriate to fully implement or to further
evidence the understandings and agreements contained in this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
Superior Lessor:
By:_______________________
Space Tenant:
PAINEWEBBER INCORPORATED
By: ______________________
M-2-4
124
[ACKNOWLEDGEMENTS]
M-2-5
125
Schedule "A"
Land
M-2-6
126
Exhibit "N"
NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of the ___ day of ___________, 198_, between
XXXXX:-PW HOTEL LIMITED PARTNERSHIP, a New Jersey limited partnership, having an
office at 000 Xxxxx Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000
("Landlord"), and __________, a ___________ having an office at ___________
("Subtenant").
WITNESSETH:
WHEREAS, Landlord has entered into an Agreement of lease, dated as of
the ___ day of ______________, 1986, (the "Space Lease"), with PAINEWEBBER
INCORPORATED (the "Space Tenant") pursuant to which Landlord leased and demised
to Space Tenant a portion of the space in the building known as the
[Hotel/Office Building] (the "Demised Premises") as more fully described in such
Space Lease;
WHEREAS, Space Tenant has entered into an Agreement of Sublease (the
"Sublease"), dated as of the _____ day of ___________, 19 , pursuant to which
Space Tenant subleased and demised to Subtenant [the Demised Premises or a
portion thereof] , as more fully described in Exhibit "A" annexed hereto and
made a part hereof; and
WHEREAS, the parties hereto desire to provide inter alia for the
non-disturbance of Subtenant by Ground Lessor.
NOW, THEREFORE, the parties hereto agree as follows:
1. So long as the Sublease is in full force and effect, and no default
of Subtenant exists nor has any event occurred which with the passage of time or
notice would entitle Space Tenant to terminate the Sublease or dispossess
Subtenant, Landlord will not name or join Subtenant as a party defendant or
otherwise in any suit, action or proceeding brought to enforce any rights
granted to Landlord under the Space Lease or to terminate
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127
such Space Lease, and the Landlord will not terminate the Sublease or take any
action to recover Possession of the premises demised to Subtenant or affect or
disturb Subtenant's possession or rights under the Sublease.
2. If Landlord or its designee shall enter into and become lawfully
possessed of the Demised Premises and shall succeed to the rights of Space
Tenant under the Space Lease by reason of the termination of the Space Lease or
otherwise, and if Subtenant is not then in default under the Sublease beyond the
time permitted therein to cure such default, then (a) the Sublease shall not
terminate, (b) Subtenant shall attorn to Landlord or its designee, and recognize
it as its landlord, such attornment to be upon the then executory terms and
conditions of the Sublease, and (c) Landlord or its designee shall accept such
attornment and recognize Subtenant as the Landlord lessee under the Sublease.
Upon such attornment and recognition, the Sublease shall continue in full
force and effect as, or as if it were, a direct lease between the Landlord or
its designee and Subtenant, upon all of the then executory terms, conditions and
covenants as set forth in the Sublease and which shall be applicable after such
attornment, except that Landlord shall not be (i) liable for any previous act or
omission of Space Tenant which constitutes a default under the Sublease; (ii)
subject to any offset or defenses not expressly provided for in the Sublease
which the Subtenant might have against Space Tenant; (iii) bound by any
Prepayment of more than one month's [Fixed Rent] or [Additional Charges] (as
such terms are defined in the Sublease); and (d) bound by any amendment or
modification of the Sublease made without Landlord's prior written consent.
3. The terms of this Agreement shall bind and inure to the benefit of
the parties hereto, and their respective heirs, successors and assigns.
4. All notices and other communications hereunder shall be in writing
and shall be hand delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed (a) if to Landlord at 000 Xxxxx
Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000, Attention: General
Counsel, with a copy to Horowitz, Bross, Sinins & Imperial, P.A., 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxxxxx, Esq., or at such
other address as Landlord
N-2
128
shall have furnished to Subtenant in writing, or (b) if to Subtenant, at
________________________________________ ____________ Attention: ___________, or
at such other address as Subtenant shall have furnished to Landlord in writing.
5. This Agreement shall be governed by the laws of the State of New
Jersey. If any term of this Agreement or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Agreement or the application of such term to any person or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
6. This Agreement may not be discharged or modified orally or in any
manner other than by an agreement in writing specifically referring to this
Agreement and signed by the party or parties to be charged thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXX-PW HOTEL LIMITED
PARTNERSHIP
By: Xxxxx Mountain Industries, Inc.
By: ___________________________
[SUBTENANT]
By: _______________________________
N-3
129
[NOTARY PUBLIC PAGE]
N-4
130
EXHIBIT "A"
Demised Premises
N-5
131
Exhibit "O"
Cleaning Standards
NIGHTLY ENTRANCE LOBBY AREAS
Sweep and wash flooring including spray buffing.
Wash all rubber mats.
Clean all cigarette urns and replace sand and water as necessary.
Vacuum floors, dust and rub down walls, metalwork and saddles in all
elevator cabs.
NIGHTLY FOR GENERAL CLEANING
Thoroughly vacuum all carpeted areas moving light furniture.
Wash all stairways.
MONTHLY HIGH DUSTING
Dust all pictures, frames, charts and other wall hangings not reached in
nightly cleaning.
Dust all vertical surfaces such as walls, partitions, doors, brick,
louvers, not reached in nightly cleaning.
Dust all window frames.
Machine scrub all ceramic tile floors.
Thoroughly wash and polish all wall tile and stalls in toilet areas.
Dust and wash down lobby walls.
OTHER SPECIAL CHORES NOT DESCRIBED IN NIGHTLY, WEEKLY OR MONTHLY CLEANING
SERVICES
Window washing will be performed TWO times per year.
O-1
