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Exhibit 10.37
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LEASE BETWEEN
XXXXX-PW LIMITED PARTNERSHIP,
as Landlord
and
PAINEWEBBER INCORPORATED
as Tenant
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Premises:
Operations Center
LINCOLN HARBOR PROJECT
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INDEX
ARTICLE PAGE
1. Definitions ............................. 1
2. Demise and Term ......................... 7
3. Rent .................................... 7
4. Use of Building ......................... 9
5. Preparation of Building ................. 10
6. Tax and Operating Expense Payments ...... 12
7. Common Areas ............................ 15
6. Retail Space ............................ 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 ................... 31
15. Alterations ............................. 32
16. Landlord's and Tenant's Property ........ 34
17. Repairs and Maintenance ................. 35
18. Electric Energy ......................... 37
19. Heat, Ventilation & Air Conditioning .... 37
20. Other Services: Service Interruption ... 37
21. Access, Changes and Name ................ 38
22. Mechanic's Liens and Other Liens ........ 38
23. Non-Liability and Indemnification ....... 39
24. Damage or Destruction ................... 40
25. Eminent Domain .......................... 45
26. Surrender ............................... 47
27. Conditions of Limitation ................ 48
28. Re-Entry by Landlord .................... 49
29. Damages ................................. 50
30. Affirmative Waivers ..................... 53
31. No Waivers .............................. 54
32. Curing Tenant's Defaults ................ 54
33. Broker .................................. 55
34. Notices ................................. 55
35. Estoppel Certificates ................... 56
36. Arbitration ............................. 56
37. Memorandum of Lease ..................... 57
38. Miscellaneous ........................... 57
39. Extension of Term ....................... 62
40. Determination of Fair Market Rent ....... 63
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Exhibits
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" Parking Plan
Exhibit "L" Lincoln Harbor Project
Exhibit "M" Retail Space
Exhibit "N-1" Form of Superior Mortgage Subordination,
Nondisturbance and Attornment Agreement
Exhibit "N-2" Form of Superior Lessor Subordination,
Nondisturbance and Attornment Agreement
Exhibit "O" Form of Ground Lessor Nondisturbance
and Attornment Agreement
Exhibit "P" Cleaning Standards
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Lease, dated April 14, 1986 between XXXXX-PW 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, eight (8) months from the completion of
Landlord's Work to the extent necessary so that Tenant may commence Tenant's
Work, together with the delivery of
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Architect's Certificate, or (ii) if Landlord is designated to perform Tenant's
Work, the date on which Landlord Substantially Completes Landlord's Work and
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 July 1, 1988, (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, 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, parking areas,
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 of the Data Processing Lease (hereinafter defined) (as such
term is defined in the Data Processing Lease), or (iii) the Commencement Date
(as such term is defined in the Agreement of Lease, dated of even date herewith,
between Xxxxx-PW Hotel Limited Partnership, as landlord, and Tenant, as tenant,
for certain office premises in the Lincoln Harbor Project (the "Hotel/Office
Lease")) of the Hotel/Office Lease, if the later to occur
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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 occurs if 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 Sec-
tion 5.05 hereof.
N. Floor Space: 578,028, as the same may be increased or decreased pursuant
to Section 38.11 hereof, and as more particularly set forth on Exhibit "D"
annexed hereto and made a part hereof.
0. 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.
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 Limited Partnership, a New Jersey limited partnership, having an
address at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, but thereafter
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"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.
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 and 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
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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.
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 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
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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.
MM. Tenant: On the date of which this Lease is made shall mean PaineWebber
Incorporated, but there after, "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 Incorporated 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: 95.62%, as the same may be decreased pursuant to
Section 38.11 hereof.
00. 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, deco-
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rate 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 Commencment 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.
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 Clearinghouse 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
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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 Ten-
ant 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 for the same
(which delivery may be by invoice and shall not be required to comply with the
requirements for 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 publically 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
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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 any 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 core and shell of the Building. Each
governmental license or permit, including the certificate of occupancy or its
lawful functional equivalent, 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
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.
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ARTICLE 5 - PREPARATION OF BUILDING
5.01 The Building shall be prepared for Tenant's Work in the manner
described in, and subject to the provisions of, Exhibit "F" annexed hereto, on
or before November 1, 1987, and Landlord's Work shall be Substantially
Completed on or before December 1, 1987, in either event provided that Tenant
shall deliver to Landlord plans and specifications for the core and shell of the
Building on or before April 15, 1986. Such date for Substantial Completion of
the Building shall be postponed one day for each day beyond April 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 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 shall assign such longer warranties as may be
provided with any item of equipment or material installed in the Building shell
to Tenant, or, if the same are not assignable, shall assign to Tenant the right
to enforce the same. Landlord covenants that the warranty obtained
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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
shall furnish Tenant with an assignment of such warranties to the extent that
same are given by subcontractors or materialmen.
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 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 Tenant's prior consent, which consent shall not be unreasonably
withheld or delayed, and provided further that Tenant may thereupon request a
recalculation of Operating Expenses in accordance with Section 38.11 hereof.
5.04 The interior finish of the Demised Premises is he 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.
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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 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 (and may employ 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 six (6) months of the completion of the
shell of the Building; predicated upon Landlord receiving Tenant's request for
proposal on or before August 1, 1987 and Landlord starting the Tenant Work in
the tenth (10th) month of the Building shell construction. This shall provide
eight (8) 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) business 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
for any year during the Term not later than five (5) business days before any
delinquency
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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 or less 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) 4.42% of the tax
attributable to the tax lot of which the Land forms a portion. 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 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
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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 hereafter, commencing
with the month in which the demand is made in continuing hereafter 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
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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 he
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 he 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.
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,
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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 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 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 use of 1 unreserved
parking space for every 690 square feet of Floor Space in the Demised Premises,
as more particularly shown on Exhibit "K" annexed hereto and made a part hereof,
of which spaces, at Tenant's request, five
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percent (5%) shall be reserved for exclusive executive parking. 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 - RETAIL SPACE
8.01 Upon sixty (60) days' prior written notice from Tenant, Landlord will
cause Xxxxx Mountain Industries, Inc. to enter into an agreement of sublease,
substantially similar to the provisions hereof, to include up to 5,000 square
feet of floor space (measured in accordance with Exhibit "C" annexed hereto and
made a part hereof) in the retail area of the Building as shown on Exhibit "M"
annexed hereto and made a part hereof, provided that such notice shall be given
prior to the date which is the later to occur of (a) three (3) months from the
date hereof, and (b) the date on which Landlord gives Tenant ten (10) business
days' notice that there is a prospective lessee for such space and within such
ten (10) business day period Tenant elects not to lease the same. The Fixed
Rent, Operating Expenses and Tenant's Proportionate Share shall be determined in
accordance with the ratio of such space to the aggregate rentable Floor Space in
the retail area of the Building. Tenant shall use such space for the conduct of
retail operations in connection with its normal business operations.
8.02 Landlord agrees that if Tenant shall exercise its option pursuant to
Section 8.01 hereof to lease retail space in the Building, Landlord shall not
lease, nor permit there to be used, any other space in the Lincoln Harbor
Project for a retail brokerage operation; provided, however, that Landlord may
lease other space in the Lincoln Harbor Project for a retail brokerage
operation if the same is required by another major office tenant of the Lincoln
Harbor Project in connection with the execution of such tenant's lease for
office space in the Lincoln Harbor Project.
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 "N-1", to the effect that, provided
no event of default has occurred and is continuing hereunder, such Superior
Mortgagee will not
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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 "N-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 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, con-
solidations 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 exer-
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cise 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 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
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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.
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 "L" 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
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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 any portion of the Demised Premises to an Affiliate un-
less 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 publically 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 obliga-
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tions 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.
(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
$500,000,000, 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
$500,000,000 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 $500,000,000; 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 Xxxxx Xxxxxx, 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.
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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 "O".
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 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
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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
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 neither Landlord
nor its successors or assigns shall be 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
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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 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 Xxxxx Xxxxxx, 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 a 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
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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
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 less-
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er 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 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)
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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 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 wrongful 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
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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.
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
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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 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
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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 Regula-
tions 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 tenants
in the Building, in the case of the Common Areas. If Tenant disputes the
reasonableness of any additional 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
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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 Xxxxx
Xxxxxx, 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. My review or
approval by Landlord of any plans and/or specifications with respect to any such
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 warranties 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 Supe-
rior 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
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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.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01 All fixtures, equipment, improvements and appurtenances attached to
or built into the Building 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 Building 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 Building (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 Xxx-
00
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ject 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 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), including, but not
limited to, repairs 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 Xxxxx Xxxxxx, Inc. is no longer liable for
Tenant's obligations under this Lease, require Tenant to furnish to Landlord
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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.
17.02 Tenant shall be responsible for the ordinary maintenance, but not the
repair or replacement, of the roof of the Building. Landlord shall be responsi-
ble for the repair and replacement of the structure of the Building and the roof
of the Building in excess of the Reserve Amounts (hereinafter defined) 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 Tenant shall deposit with Landlord, on or before the tenth (10th) day
of each calendar year or portion thereof during the term, commencing on the
Fixed Rent Commencement Date, an amount equal to the product of the Floor Space
and three cents (.03 cents) (collectively, the "Reserve Amount") (which amount
shall be prorated on a pro rata basis for any partial year during the Term
hereof). Landlord shall hold such funds in escrow for the benefit of Tenant and
shall invest such amounts as Tenant shall reasonably approve. Landlord shall
have the right to apply any such amounts, together with all interest thereon, to
the cost of any bona fide roof repairs to the Building (excluding, however, any
amounts which are reimbursed to Landlord by reason of insurance, condemnation
awards, warranties or otherwise, and any amounts required to fulfill Landlord's
obligations hereunder with respect to the satisfactory completion of Landlord's
Work), up to an amount not to exceed Tenant's Fraction of such cost. To the
extent that as of the Expiration Date there shall remain any such funds,
Landlord shall promptly return the same to Tenant, together with a full
accounting thereof, on the Expiration Date.
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17.04 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 re-
quired 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 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
Tenant 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.
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ARTICLE 20 - OTHER SERVICES: SERVICE INTERRUPTION
20.01 Landlord shall cause the Common Areas to be cleaned in accordance
with the standards set forth in Exhibit "P" 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 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 Xxxxx Xxxxxx, Inc. or an affiliated entity is the
Tenant, Tenant may name the Building, the Xxxxx Xxxxxx Building, or any other
name associated with Xxxxx Xxxxxx, Inc. or its Affiliates, as the same may
change from time to time as the result of mergers or consolidations or
otherwise.
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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 venturer, 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 net of bona fide liens and
expenses received by Landlord on a sale of such estate and property). In the
event of any
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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
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
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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 If (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 or the Demised Premises, as the case may be, 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
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,
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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 process
(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 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
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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 repairs 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
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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 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 Data Processing Center Lease, dated of even
date herewith, between Landlord, as landlord and Tenant, as tenant, (the "Data
Processing Lease") the tenant thereunder shall have the right to, and shall,
terminate such
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lease in connection with a casualty and such tenant shall be Tenant or an
affiliate of Tenant (and, if either the Demised Premises or the premises leased
pursuant to the Data Processing Lease shall have been sublet, operations in one
premises shall be dependent upon operations in the other premises) then Tenant,
at Tenant's sole option, shall also have the right to terminate this Lease
simultaneously with the termination of the Data Processing 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 expro-
priation, 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 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 Xx-
00
00
mised 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, good will, 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 reduction 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,
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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 Data Processing
Lease are taken or such portions of said facilities are taken resulting in a
termination of the Data Processing Lease, and the tenant under the Data
Processing Lease shall be Tenant or an affiliate of Tenant (and, if either the
Demised Premises or the premises leased pursuant to the Data Processing Lease
shall have been sublet, operations in one premises shall be dependent upon
operations in the other premises) 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.
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.
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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 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 in-
stallment of Fixed Rent, and such default shall continue
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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 shall terminate with the same
effect as if that day were the expiration date of this Lease, but Tenant shall
re main 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
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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 posses-
sion 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 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
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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 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 Prem-
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ises 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
election, 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
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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 Land lord 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.
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.
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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.
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
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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.
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, Atten-
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tion: 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 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
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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 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
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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.
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.
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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 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.
38.08 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,
airconditioning, elevator or other systems located in passing through the
Demised Premises or any part thereof.
38.09 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 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.
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38.10 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.
38.11 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 578,028. 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 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.
38.12 Notwithstanding anything contained in this Lease to the contrary, if
Landlord shall have failed to deliver to Tenant the premises demised to Tenant
pursuant to the Data Processing Lease on or before January 1, 1987, as the
same may be extended by reason of Un-
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avoidable Delays to a date no later than June 1, 1987, as to which date time
shall be of the essence, 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, Substantial
Completion of Landlord's Work shall not have occurred on or before January 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 August 1, 1989, then, on the later to occur of August 1, 1989 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 released from all liabilities under the provisions of this Lease as of
the date of such termination.
38.13 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
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thereunder pursuant to Section 14.13 thereof to secure its obligations hereunder
for a period of five (5) years from the Fixed Rent Commencement Date.
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
"Renewal 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.
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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.
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
buildings in the Northern New Jersey metropolitan 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, occupying in excess of 200,000 square feet; (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.
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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 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 determina-
tion ("Mutual Determination") of the Fair Market Rent, their determination shall
be final and binding upon the
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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
pursuant 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.
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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.
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 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 Operations Center is to be located at the Lincoln Harbor
Project. The 10-11 story, center core building, of approximately 604,528 gross
square feet, will house a retail area, cafeteria, print center, bulk storage and
mail area. The Operations Center is to be connected by a "skywalk" to the
existing Data Processing Center.
A-1
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EXHIBIT "B"
Demised Premises
The Demised Premises shall consist of all of that space, including the
"skywalk," excluding retail space and the Common Areas.
B-1
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EXHIBIT "C"
Fixed Rent
The Fixed Rent during the Term, subject to adjustment as provided in this
Lease, shall be determined as follows:
(a) Commencing on the Fixed Rent Commencement Date and terminating on the
day prior to the nineteenth (19th) anniversary of the Fixed Rent
Commencement Date, the Fixed Rent shall be equal to the sum of (i) the
Base Amount (as defined below), and (ii) 77.56% of debt service* per
annum (principal and interest) under the Mortgage. The percentage of
debt service for the Mortgage shall be determined by dividing (x)
the Floor Space of the Demised Premises by (y) the floor space upon
which the Mortgage is based (578,028 / 745,926 = .7756). Debt
service shall be determined by using a debt service constant not to
exceed 11.979.
Years Commencing on the
Fixed Rent Commencement Date "Base Amount" per Year
--------------------------- ----------------------
1 - 4 $ 545,692.00
5 - 9 $ 996,627.00
10 -14 $2,717,511.00
15 -19 $5,012,023.00
----------------
* The stated percentage is predicated upon there being one (1) mortgage
covering both the Ground Lease and the Agreement of Ground Lease, dated of
even date herewith, between Fee Owner, as landlord, and Landlord, as
tenant, for the premises known as the Operations Center and the Data
Processing Center, respectively. In the event that a separate mortgage is
obtained in connection with each such leasehold estate this Exhibit shall
be amended accordingly.
C-1
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(b) Notwithstanding the foregoing, in no event shall the Fixed Rent
(inclusive of the "Base Amount") per square foot exceed $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.
(c) 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.
Promptly after the closing of the Mortgage and upon each occasion of
redetermination of Fixed Rent, as provided in this Lease, the parties hereto
shall prepare and execute a revised schedule of such redetermined Fixed Rent.
C-2
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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
578,028.
D-1
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EXHIBIT "E"
Land
(including skywalk easement)
BLOCK 34C XXX 0.00
XXXXXXXX XX XXXXXXXXX
XXXXXX XXXXXX, XXX XXXXXX
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 Xxxxxxxx &
Xxxxx Engineering Company, dated February 27, 1986, revised to March 19, 1986,
and running; thence,
A) N 21 degrees-21'-30" E, 86.70 feet along said property line 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 from said property line, S 50 degrees-33'-12" E, 86.23 feet
to the point of beginning; thence,
1) N 38 degrees-52'-10" E, 383.37 feet to a point of curvature;
thence,
2) 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,
3) S 51 degrees-07'-50" E, 156.00 feet; thence,
4) S 38 degrees-52'-10" W, 286.00 feet; thence,
E-1
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5) Along the outer face of the wall of Tower 1, S 51 degrees-07'-50"
E, 392.18 feet; thence,
6) S 38 degrees-52'-10" W, 132.37 feet to a point of curvature;
thence,
7) Southwesterly, 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,
8) N 51 degrees-07'-50" W, 513.18 feet to a point of curvature;
thence
9) Northwesterly, on a curve to the right having a radius of 35 feet
through a central angle of 90 degrees-00'-00" for an arc distance
of 54.98 feet to the point or place of beginning.
Containing 156,420 square feet (3.59 acres).
and
The easement created pursuant to the Reciprocal Easement and
Maintenance Agreement, dated of even date herewith, among Xxxxx, Landlord and
Landlord for the "skywalk."
E-2
76
[SURVEY OF SUBDIVISION OF LINCOLN HARBOR]
E-3
77
EXHIBIT "F"
Landlord's Work
F-1
78
[PAINEWEBBER LETTERHEAD]
March 4, 1986
Xxxxxxx X. Xxxxx, Vice President
Xxxxx Mountain Industries
000 Xxxxx Xxxxx
Xxxxxxxx, XX
RE: PaineWebber, Inc.
Dear Xxxxx:
I have reviewed the two feasibility studies and have found the following changes
required to be made:
Data Center
We have added two pages (6A and 6B) plus section 12 which is a summary of
budgetary costs of PaineWebber data center.
Operations Building
We have added the summary of budgetary costs of PaineWebber operations center
(page 30).
If you have any questions, please call at (000) 000-0000.
Sincerely
/s/ Xxxxxx X. Xxxxxx/at
Xxxxxx X. Xxxxxx
Senior Vice President
at
Attachments
79
Exhibit "F"
XXXXX MOUNTAIN INDUSTRIES, INC.
LINCOLN HARBOR FEASIBILITY STUDY
OPERATIONS BUILDING
80
PROJECT DESCRIPTION
The proposed Xxxxx Xxxxxx Operations Building is to be located at Lincoln
Harbor, Weehawken, New Jersey. The 10-11 story, center core building, of
approximately 550,000 gross square feet, will have a population of 3300 and will
house a cafeteria, print center, bulk storage and mail area. The Operations
Center is to be connected by above ground bridge, to the existing Seatrain
Building.
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.
- 1 -
81
SITE DEVELOPMENT
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: Grade and structured parking will be provided for a total of 1,000
cars. About 350 parking spaces will be provided in a structure on the south side
of the existing office building (data center).
1. Elevated covered walkway will be provided to connect this structure to
both office buildings. The remaining 650 spaces will be provided in a
parking structure to the immediate west of the new office building, part of
which will be above the print plant/mail room.
2. Structure will be designed and constructed so as to have normal drainage
and waterproofing expected of a structural roof.
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 both buildings will be heavily landscaped.
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STRUCTURAL
A. Structural System Description: The primary structural system for the building
shall be a structural steel frame. All steel members shall be standard rolled
sections.
The typical floor and roof slab consist of composite metal decking and
concrete reinforced with welded wire fabric. The floor framing shall be sized to
act compositely with the metal deck slab. Floor framing shall be evaluated by
deflection and vibration control criteria in addition to strength. Floor framing
shear connections shall be sized for a minimum of 125% of the maximum uniform
load capacity of the composite member.
The minimum structural bay size shall be 30 ft. by 30 ft. Steel columns
shall transmit the gravity loads. A positive means of resisting laterals loads
shall be provided. The structure shall be spray-fireproofed to the applicable
ratings required by code.
B. Structural Loadings:
1. Live Loads
Typical Floor 100 psf
Roof per Code (incl.
(boca snow drift)
Print Center 200 psf minimum
(subject to verification
of equipment)
Live Load reduction per code on floor girders,
columns and foundations only.
2. Lateral Loads
Structural Steel per Code
Cladding plus/minus 30 psf minimum
C. Structural Materials:
1. Structural Steel A-36 or A-527, gr. 50
2. Concrete fc = 4000 psi min.
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83
EXTERIOR ENCLOSURE
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 CBA
certification. All glass thickness and heat treatment to sustain wind loads
and to resist temperature stress breakage. Limit breakage to 8 lites per
1,000. Fixed aluminum frames with continuous PVC thermal break with either
hard coat 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: Continuous at line coincident with head of windows at
each level to anticipate water infiltration potential at sealant joints.
Weep system incorporated at glazing enframement. There will be a continuous
vapor barrier between interior and exterior 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.
The entire exterior wall system is estimated to be 140,000 square feet and is
budgeted to cost no more than $22.00 per square foot or $3,080,000 complete,
including mock-up test estimated at $100,000.
B. 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 R M brand insulation with a "U" value of 0.08 BTU/sq./ft. Deg F. and
stone ballast.
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84
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 orethane 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 asphaltic
protection board.
3. Elevator Pit Waterproofing: Capillary waterproofing (Vandex).
4. Sealants: Provide two component urethane sealant (Tramco/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.
E. Roll-Up Doors: Electrically operated automatic roll-up doors (Cornell Iron
Works)
F. Loading Dock Equipment: Provide manual dock levelers, dock bumpers and
other accessories (Xxxxx Dock Levelers).
G. Ornamental Metals: ASTM X000, Xxx 000 or 304 stainless steel, No. 8 mirror
finish. Thicknesses as required to provide flat surfaces free from distortion.
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85
INTERIOR - BASE 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 Office 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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86
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
at fire-rated walls and partitions.
b. Frames: Welded hollow metal, 16 ga., size as required, factory
primed, field painted, and labeled at fire-rated walls and partitions.
c. Hardware: Mortise locksets with lever handles, ball bearing hinges
and parallel arm closers; 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 FS DD-G-451 type 1 class 1
quality 9.
8. Lavatory Countertops: "Corian" on marine grade plywood with back and
side splashes with miscellaneous metal framing.
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87
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 D5c.
G. Electrical and Telephone Closers:
1. Floors: Steel troweled concrete, sealed for dustproofing. Alternate: 8"
raised floor consisting of 2' x 2' steel panel with high pressure plastic
laminate finish.
Alternate: Add raised flooring in electrical and telephone closets. Based
on 1,900 square feet total areas and sevein model 50 by Xxxx Corporation
1,900 sq. ft. @ $7.11 per sq. ft. $14,650
2. 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 conditions.
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88
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 302 and 304 stainless steel, No. 8 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 eggshell finish.
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89
VERTICAL TRANSPORTATION:
A. Materials and Equipment:
1. Elevators required to serve a building population of approximately 3300
people on Floors 2 - 11 will consist of two (2) groups of six (6) elevators
each at approximately 1/3 points of the long dimension of the building.
Each group will be six (6) 4000 pound elevators operating at 350 fpm, with
48 inch wide center-opening doors.
2. The elevators are designed to provide a five minute handling capacity of
14.1% 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. Two (2) service elevators are required. Each will have a capacity of
6000 pounds and be designed to handle 10 foot sections of drywall.
B. Materials Handling: A materials handling system is recommended to provide
both vertical and horizonal delivery of documents from central mail, file,
supply and reproduction center. Such system will consist of self-propelled
automatic "tote" boxes on a dedicated track system operating in vertical
shaftways and ceiling space. Multiple entry and re-entry stations are envisioned
on each floor.
This item description is too vague and has not been priced and it is not the
obligation of Xxxxx.
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90
Plumbing:
A. Sanitary System: Provide a complete system of sanitary services, including
toilet facilities, fixtures, drains, veins, water, etc., including all
connections to site 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 12
flush valve fixtures and 8 lavatories shall be provided on each floor for
each sex. Toilet facilities shall be so located that no paint 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 8 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.
- 11 -
91
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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92
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 same 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 for all plumbing
fixtures.
F. Water Closets:
1. Vitreous china, wall hung, siphon jet action, elongate bowl, 1-1/2
inch top spud for chrome plated exposed flush valve with metal
oscillating handle 1 inch screwdriver angle stop vacuum breaker, 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 neoprene gaskets
and bolt carrier to floor. Mount closet with rim 15 inches above
floor.
3. Equipment manufacturers and model numbers are as follows:
Bowl Afwall
Flush Valve 110
Seat Church 5320.114, white
G. Lavatories: Vitreous china, front overflow, antisplash rim, cast-in soap
dish American Standard "Roxalyn" pattern in 20 inch size. Fittings to be
American Standard "Heritage" N2131 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-2604-1 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.
- 13 -
93
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 - reinforce
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 tenanted areas including leader to roof
drain.
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94
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 office 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 the system in the core
of the building. Distribution into floors will be part of tenant allowance at an
estimated cost of $320,000. This price is based on chrome pendant heads.
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95
ELECTRICAL (Core Work)
A. Electric Service:
1. Electric service to be capable of supporting the demand load on a first
contingency basis for service feeders and transformers.
2. If unit substations are employed, they shall be primary selective
double-ended with secondary tie. Each transformer shall be sized to
accommodate the total demand load based on an overload rating with forced
air cooling.
3. Two levels of ground fault protection shall be provided at 460 volt.
4. Provide (2) 4160 volt emergency feeder from generator distribution
switchgear located in Data Center Building sized to support, in addition to
code required systems, a unit demand load density of 7.2 xxxxx per sq. ft.
of gross area distributed as detailed in Paragraph B below.
B. Normal/Emergency Lighting and Utility Distribution: Interior distribution for
lighting and utility shall all be on emergency service, and be sized at 8.5
xxxxx per sq. ft. demand at 265/460 volts, 3 phase 4 wire through two (2)
vertical risers of plug-in bus ducts. Local dry type transformers shall be
provided for 5 xxxxx per sq. ft. at 120/208 volts, 3 phase 4 wire with the
number of branch circuits based on a per circuit loading of 1200 xxxxx, equally
distributed on the floor at four (4) closet locations.
The number of branch circuits for lighting panels shall be based on a per
circuit loading of 3600 xxxxx equally distributed on the floor at two (2) closet
locations.
H. Life Safety System: Shall be in accordance with governing high rise Code
requirements.
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96
HEATING, VENTILATING AND AIR CONDITIONING:
A. Temperature and Humidity Design Conditions:
Summer: Outside Air: Dry bulb: 91 degrees F.
Wet bulb: 76 degrees F.
Inside Air: Dry bulb: 75 degrees F.
Wet bulb: 63 degrees F.
Winter: Outside Air: Dry bulb: 0 degrees F.
Inside Air: Dry bulb: 70 degrees F.
Cooling Tower
Summer Design: Wet bulb: 78 degrees F.
Return Water
Temperature: 95 degrees F.
Supply Water
Temperature: 85 degrees F.
B. Load Conditions: In addition to the solar and transmission loads, the
supply air quantities and refrigeration tonnage shall be designed for the
following unit load densities:
Lighting: 2.0 xxxxx/sq.ft. useable
Power: 3.0 xxxxx/sq.ft. useable
C. Air Conditioning Systems:
1. The air conditioning system shall be an all air-variable air volume
system. Supply air shall originate at a central Fan Room consisting of
multiple supply air and return air systems. The supply air systems
shall be built-up type arranged in a blow-through configuration,
utilizing vane-axial fans with variable speed motors. The return air
fans shall also be vane-axial type with variable speed motors. The
supply fans shall be headered together for operating flexibility and
reliability.
2. Supply air to and return air from each floor shall be distributed to
the various floors by means of four (4) riser shafts with a supply air
takeoff on each floor off of each riser. A pneumatically operated
two-position automatic damper shall be provided in each supply air and
return air duct tap on each floor. Supply duct construction from
fan discharge to capped outlets on each floor shall be of medium
pressure construction with all seams and joints sealed and completely
insulated.
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97
3. The air quantities shall be based on a room temperature minus entering
room supply air temperature differential of 18 degrees F.
D. Heating Systems:
1. The building will be heated by forced hot water convectors located at
the perimeter of the building below the sill of the window. The system
will be fed by a pair of supply and return risers located every 60
feet at the perimeter columns and piped in a reverse return
arrangement. An automatic control valve shall be provided for every 30
lineal feet of exterior wall. Convector lengths and locations shall be
arranged such that each curtain wall module is covered by a heating
element.
2. Operating supply water temperature shall be 180 degrees F. with a 20
degrees F. or 30 degrees F. temperature differential. An alternate
price shall be provided for a system utilizing heat pump water at a
supply temperature of 105 degrees F. and a 10 degrees F. temperature
differential.
3. The boiler plant shall consist of three packaged hot water fire tube
boilers with dual fuel burners (natural gas and No. 2 fuel oil). NOTE:
The primary fuel should be natural gas with fuel oil as a backup. Two
boilers shall be each sized at 67% of total load. The third boiler
shall be sized for summertime domestic hot water load requirements.
E. Refrigeration Plant: Shall consist of three machines, one sized at 20% of
the total load and the other two each sized at 40% of load. Machines shall be
hermetic electric motor driven type. Space shall be provided for a redundant or
standby machine of each size. A chilled water and condenser water pump shall be
provided for each machine plus a standby pump for each service and size.
Machines shall be piped in a parallel flow arrangement. Refrigeration machines
shall produce 44 degrees F. supply water with a 56 degrees F. return water
temperature with condenser water at 85 degrees F. supply and 95 degrees F.
return.
F. Cooling Tower:
1. Cooling tower shall consist of multiple cells sized for tonnage
required plus an allowance of 400 tons of additional capacity for
future needs. A spare cooling tower cell shall be provided.
2. Cooling tower cells shall be of the packaged cross-flow type with
two-speed reversing motors. Towers shall have stainless steel basins
and sumps with hot dipped galvanized frames and noncombustible fill.
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98
3. Each cooling tower cell shall be winterized. 400 ton space capacity is
to be distributed by means of a separate pair of risers sized for the
full capacity from top to bottom of the building. A separate set of
circulating pumps shall be provided (three pumps each sized at 50% of
1200 qpm). Valved outlets shall be provided at floor (sized at 4
inches).
G. Automatic Controls and Building Automation System:
1. The building control system shall be, in general, a pneumatic system.
Building automation system shall be an electronic microprocessor based
system employing direct digital control technology. Each main air
handling system and each water system shall be provided with a
separate DDC cabinet.
2. System shall be able to start and stop all equipment remotely and
monitor and reset from a remote location air system supply air
temperatures, outside air temperatures, fan discharge temperatures,
return air temperatures, supply and return temperatures of all water
systems with reset of supply water temperatures. In addition to points
required for the operations building allow five hundred (500) points
for data center.
3. System shall provide alarms for all off-normal conditions and status
of remotely controlled motors by either pressure or floor switches.
4. System graphics shall be provided for each system.
5. System shall remotely control each supply air and each return air
automatic damper in the duct tape at each floor from a central
location both for part load operation and smoke control.
6. Provide a duplicate operators console (color CRT, alarm printer,
logging printer, etc.) at data center in addition to that required at
operations center.
H. Boiler Plant Fuel Oil System: Provide a fuel oil system for the boiler
plant.
Provide a 15,000 gallon fuel oil tank (No. 2 fuel oil) for main storage
with fuel oil transfer pumps and day tank at the boiler room.
I. Life Safety System and Smoke Control System: In general, the normal
building air conditioning supply and return fans shall be utilized for
smoke control by means of pressurization and exhaust.
J. Elevator Machine Rooms: Elevator Machine Rooms shall be air conditioned
utilizing packaged DX condenser water cooled units.
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99
The HVAC system as specified will result in an additional cost to Xxxxx
Xxxxxx of $716,500 which is above the Xxxxx $1,700,000 cost for the base system
in the core. The additional items of cost are broken down as follows:
Increased prices / JB - B outline specifications over Xxxxx standard.
1. Refrigeration Plant
JB-B 3 chillers
Xxxxx design 2 dual chillers
increase chiller cost plus
piping and rigging 22,000
2. Increase air system
JB-B 18 degrees X X
Xxxxx design 20 degrees D T
V A V system increase 40,000
cfm @ $3.50 140,000
@ $3.50
3. Spare 400 tons capacity in cooling
tower with 3 pumps @ 600 gpn and 8" pipe
with capped valves 37,500
4. Spare cell with cooling tower 600
T.R. 30,000
5. Stainless Steel Basin and Sump in
lieu of standard 20,000
6. Condenser water and chilled water
pumping system
JB-B 5 pumps ea system
Xxxxx design 4 pumps ea system 8,500
7. Back-up fuel oil system 18,000
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100
8. V A V Fan system control
JB-B variable speed,
motor drive
Xxxxx Design vortex inlet dampers 88,500
9. Control system
JB-B pneumatic control
Xxxxx Design electric controls 98,000
10. Baseboard Radiation 7200 lf
JB-B Architectural covers 254,000
w/Z tier 105 degrees
radiation
total increase in
base design cost $716,000
NOTE: No cost has been developed for heat recovery piping system between
buildings.
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101
INTERIOR - TENANT WORK:
* A. General Office Area: Usable Sq. Ft.
------------------- --------------
1. Space Allocation:
*SEE NEXT PAGE
FOR a. Enclosed Offices 10'-0"X15'-0" 100,000 sq.ft.
VERIFICATION
b. Low Wall Partition Cubicles 10'-0"X10'-0" 50,000 sq.ft.
c. Open Office Area 240,000 sq.ft.
d. Vault 5,000 sq.ft.
e. Print Shop/Mail Room 40,000 sq.ft.
f. Bulk Storage Room 20'-0"Xceiling 10,000 sq.ft.
-------
445,000 sq.ft.
2. Finishes
a. Floors: High quality modular carpet tile of
anti-static synthetic fiber, PLUS Xxxxxxxx Xxxxxx
Duct.
* Alternate: Accessible floor consisting of 2' x 2'
*SEE NEXT PAGE cement filled steel panel, 8' high, pedestals
FOR ALTERNATE interconnected with stringers. Provide high quality
modular carpet tile of anti-static synthetic fiber.
Vinyl composition tile to be used in utility areas
such as print shop, storage room, mail room etc.
b. Column Enclosures: 5/8" gypsum wallboard attached to
metal furring secured to the underside of construction
above, painted as required. Fire rated as required.
x. Xxxxx: Metal stud and gypsum wallboard partitions to
underside of construction above. Painted finish with
resilient wall base. Aluminum framed glass partition
system with baked on paint finish with flush wood
doors maximum 9'-0" high, for perimeter office walls
parallel to the exterior wall.
d. Ceiling: Fully accessible, 2' X 2' acoustical tile.
e. Lighting: Recessed parabolic fluorescent fixtures -
size to be determined.
f. Window Treatment: Perimeter windows with 1" slat
venetian blinds.
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102
General Office Areas:
Floors (carpet tiles) 445,000 sq. ft. $ 925,600
@ $2.08/PSF
Floors (Xxxxxxxx Xxxxxx Duct) 445,000 sq. ft.
@ $2.50/PSF (see item 9 of qualification) 1,112,500
ALTERNATE BID:
A D D RAISED FLOORS
395,000 sq. ft. @ $8.95/PSF 3,535,250
(including electrical grounding)
V A T 50,000 sq. ft. @ $9.80/PSF 40,000
DEDUCT BASE BID
CARPET TILES & XXXXXXXX XXXXXX DUCT (2,038,100)
-----------
TOTAL ALTERNATIVE Add 1,537,150
-----------
Walls (allowance) 863,840
Ceilings 445,000 sq.ft. @ $.90/PSF 400,000
Window Treatment 1,800 blinds @ $75 ea 135,000
Doors/H.M.D./Frames 90 @ $550 ea 49,500
Glass Partition 6,600 lin.ft.
@ $106 l.f. (incl. 660 doors) 699,600
Qualifications:
1. Partition Walls ARE NOT INCLUDED IN OPEN OFFICE AREA
2. Lin. footage of partitions for vault, print/mail room and bulk storage is
determined by 1 LF partition (to 9" A.F.F.) per 20 sq.ft. of area.
3. Door quantity is determined by 1 door per office at enclosed offices; no door
at low wall partition cubicles and 1 door per 50 LF of partition at vault,
print/mail room and bulk storage.
4. Window treatment - 1: slat Riviera aluminum venetian blinds 5' x 5' each.
(see sample)
5. Carpet tiles are based on 18" x 18" tile glued direct, 22 oz. Olefin
antistatic under 1KV, 10 G.A. level loop.
6. Ceiling tile is based on 2' x 2' x 5/8" square edge fissure lay-in system
standard grid. XXXXXXXXX MINABOARD #756 or APPROVED EQUAL. (see sample)
- 23 -
103
7. Aluminum framed glass partitions system is based on X.X. Xxxxx Series #200
with birch stain grade doors, locksets with layer handles ballbearing hinges,
polished stainless steel finish. (see sample)
8. Raised floor based on Donn-Severn model 54. 1000 lb. concentrated load. (see
sample)
9. a. Electrified deck based on Xxxxxxxxx Q Floor/Taproute system. Wiring unit
costs are called out in electrical section.
b. Provide a horizontal distribution system for power, telephone and data
on each floor with interface to respective closets at each floor. System
shall be a three cell electrified deck with three compartment trench header
system or accessible raised floor. Cellular deck sections shall utilize a
cell section providing a minimum cross-sectional area of 15 square inches
each for telephone and data with electrified sections on a maximum of 5
foot centers. Trench header capacity shall be based on a minimum allowance
of one square inch total per 100 square feet net useable area for both data
and telephone.
Alternate: In lieu of electrified cellular floor provide grounding for 25%
of accessible floor pedestals furnished by others and described in INTERIOR
TENANT WORK item A.2.a.
c. Any additional cost for spray fireproofing if necessary for Xxxxxxxxx
electrified deck system will be at tenants expense.
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104
* B. Cafeteria:
1. Space Allocation USABLE SQ. FT.
a. Kitchen Area 10,000 sq. ft.
b. Dining Area 10,000 sq. ft.
------
20,000 sq. ft.
*SEE NEXT PAGE
FOR VERIFICATION
2. Finishes
a. Floors: Carpet tile.
b. Kitchen Floor: Quarry tile, non-slip.
x. Xxxxx: Gypsum wallboard, with ceramic in kitchen.
d. Ceiling: Mineral fiber, acoustical tile. Perforated
metal tile in kitchen.
e. Lighting: same as A.2.a.
* C. Print Center:
1. Space Allocation USABLE SQ. FT.
a. Print Center 25,000 sq. ft.
2. Finishes
a. Floors: Accessible floor consisting of 2' x 2' steel
panels 24" h. with high pressure laminate finish,
pedestals interconnected with stringers, grounded.
b. Column Enclosures: Same as A.2.x.
x. Xxxxx: Gypsum wallboard partitions to underside of
construction above. Painted finish, resilient wall base.
Sound attenuation blankets as required. Support
partitions for equipment provided as required,
structural metal studs and gypsum wallboard.
d. Ceilings: Same as A.2.d.
e. Lighting: Same as A.2.e.
D. Security:
1. Security provisions including, but not limited to
electronic hardware connected to life safety system and/or
building security such as contact switches, electric
lock, electric strike release, electric hold-open devices,
cameras, card readers and intercoms connected to security
station; location to be determined.
THIS ITEM IS VAGUE AND HAS NOT BEEN PRICED AND IS NOT THE
OBLIGATION OF XXXXX.
- 25 -
105
Cafeteria Kitchen Area:
Floors (Quarry Tile) - 10,000 sq.ft. @ $8.45 sq.ft. = $84,500
Walls 3,600 sq.ft. @ $7.55 sq.ft. = 27,180
Ceilings 10,000 sq.ft. @ $2.75 sq.ft. = 27,500
Qualifications:
1. Quarry tile floor is based on 6"x6"x1/2" by American Xxxxxx, mud set,
Standard Colors. (See sample)
2. Ceramic tile walls is based on 4 1/2" X 4 1/2" Standard Colors. 400
lin. ft. @ 9' A.F.F. (See sample)
3. Ceiling is based on 2' x 4' x 5/8" conwed suspended unperforated metal
tile. (See sample)
Cafeteria Dining Area:
Floors - (Carpet Tiles) 10,000 sq.ft. @ $2.08 sq.ft. = $20,800
Walls 3,600 sq.ft. @ $2.54 sq.ft. = 9,144
Ceilings 10,000 sq.ft. @ $ .90 sq.ft. = 9,000
Qualifications:
1. Carpet tiles are the same as general office area.
2. Wall is based on 400 lin. ft. at 9' A.F.F., no wall finishes indicated
except vinyl base.
Print Center:
Floors 25,000 sq. ft. @ $7.39 sq. ft. = $184,750
Walls 1,250 lin. ft. @ $38.70 l.f. = 48,375
Ceilings 25,000 sq.ft. @ $0.90 sq. ft. = 22,500
Qualifications:
1. Access flooring is based on Severn Model 50 by Xxxx Corporation (See
sample)
2. Ceiling tile is 2'x2'x5/8" square edge fissure lay-in system Standard
grid. (See sample)
XXXXXXXXX MINABOARD #756 OR APPROVED EQUAL.
- 26 -
106
TENANT FINISHING FOR HVAC SYSTEM
H V A C Tenant work will consist of all work throughout the occupied space
starting from the main shaft. The work will consist of all medium pressure duct
work, variable air volume terminal units, low pressure air distribution duct
work with 2' x 2' ceiling diffusers, automatic temperature control, start up
check, test and balance.
$1,569,130
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107
ELECTRICAL (Tenant Work)
1. 2 x 4 Parabolic light fixtures with
(4) 40W cool white bulbs included. Branch
wiring to C.B. panel board 1,072,500
Allow one switch per 8 fixtures (812) 44,660
2. Telecommunications Provisions: Two main and
one satellite closets shall be provided for
vertical and horizontal telecommunication
services. Three inch conduit ties shall be
provided on each floor between the two main
riser closets and each of two satellite
closets. Six 4 inch riser sleeves shall be
provided between floors in each main closet. 45,748
3. Data Provisions: Two main data communication
closets shall be provided for vertical and
horizontal data distribution. Four 4 inch
riser sleeves shall be provided between floors
with a three inch horizontal conduit tie between
closets on each floor. 16,590
4. Special Grounding: Provide a 4/0 copper
insulated isolated ground riser in each of
two main electric riser closets terminating
in each closet in a ground detail box. Each riser
shall connect directly to main service ground
point for the building. 7,439
5. Each lighting panel shall be provided with a
split bus and remotely controlled contractor to
enable 2/3 of the lighting to be shed upon
loss of normal power. 16,000
6. Lighting Protection: Provide a Master Labeled
lightning protection system. 35,000
7. Tenant feeder & panels including power of
1 1/2 xxxxx per square foot for mini
computer rooms. 184,000
8. Kitchen equipment connection & panels
(allowance) 80,000
- 28 -
108
9. Empty conduits between buildings (96)
4" conduits (allowance) 12,915
10. Print shop/mail room equipment connection
and panels (allowance) 189,126
The following are unit prices for general purpose power distribution which are
an addition to above costs.
Unit Prices
-----------
1. Duplex receptacle in dry wall partition 55.00 ea
2. Power outlet in underfloor system (8/ckt) 148.00 ea
3. Power monument on raised floor (8/ckt) 148.00 ea
4. Data and/or telephone floor outlet
(excluded conduit & cables) 81.00 ea
5. Fire annunciator speakers in tenant space 110.00 ea
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109
BUDGETARY COSTS OF XXXXX XXXXXX OPERATIONS CENTER
550,000 Square Feet
All Tenant Work Based on 1986 Prices
ITEM UPGRADE COST
---- ------- ----
H V A C (add) 1,440,000 X X & B spec $1,569,130
H V A C (specified upgrade) (add) 716,500 (core)
Plumbing (specified upgrade) (add) 40,000 (fixtures & wet cols)
(add) (room size)
Cafeteria area (finishes) 139,180
Dining area (finishes) 38,944
Print center (finishes) 255,625
Xxxxxxxx deck 1,112,500
Carpet tiles 925,600
Raised flooring (alt) (add) 1,537,150
Walls (allowance) 863,840
Ceilings 400,000
Window treatment 135,000
Doors/hardware/frames 49,500
Glass partitions 699,600
Sprinkler 320,000
Electrical 1,704,000
Electrical general outlets
(est. 5,000 x $100) 500,000
----------
TOTAL $8,712,919
SQUARE FOOT COST 550,000/ $ 15.84
Total Upgrade $3,469,570 (Westinghouse Elev)
- 30 -
110
EXHIBIT "G"
Loan Terms
PRINCIPAL AMOUNT: $75,000,000
TERM: Minimum 17 years 6 months
from the Commencement Date
(as defined in the Data Pro-
cessing Lease)
AMORTIZATION SCHEDULE: 11.979 constant
INTEREST RATE: 11.25% or less per annum
SECURITY: Senior leasehold mortgage,
subordinated fee, no personal
liability
G-1
111
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.
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 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
H-1
112
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;
5. charges (including applicable taxes) for utilities (except utilities for
the use of any tenant) re-
H-2
113
quired 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, and expenses
imposed on Landlord pursuant to any collective bargaining agreement.
H-3
114
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 other wise 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;
9. any costs directly or indirectly incurred in furnishing overtime HVAC or
overtime use of elevators
H-4
115
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.
Notwithstanding anything contained herein to the contrary, it is the
intention of the parties that the sum of Tenants' Fraction of Operating Expenses
and Tenant's Fraction (as such term is defined in the Agreement of Lease, dated
of even date herewith, between Landlord, as landlord, and Xxxxx, as tenant, for
certain premises located in the Building) of Operating Expenses shall equal
100%.
H-5
116
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 the 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
117
EXHIBIT "J"
Tenant's Work
Tenant's Work shall consist of that 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
118
EXHIBIT "K"
Parking Plan
The parking shall be located on the parking decks constituting part of
the Building and the parking lot located on the premises leased pursuant to the
Data Processing Lease.
K-1
119
EXHIBIT "L"
Lincoln Harbor Project
L-1
120
[SURVEY OF BOUNDARY LINE OF LINCOLN HARBOR]
L-2
121
EXHIBIT "M"
Retail Space
M-1
122
[SURVEY OF RETAIL AREA ON GRADE]
M-2
123
EXHIBIT "N-1"
Form of Superior Mortgagee Subordination, Non-
disturbance and Attornment Agreement
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the ____ day of ___________, 19__ , 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").
W I T N E S S E T H :
WHEREAS, the Mortgagee is the owner and holder of a Promissory Note, dated of
even date herewith, in the amount of $______, by XXXXX-PW 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
N-1-1
124
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
N-1-2
125
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
N-1-3
126
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 conditions 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.
N-1-4
127
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
N-1-5
128
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:___________________________
N-1-6
129
[ACKNOWLEDGEMENTS]
N-1-7
130
EXHIBIT A
Land
N-1-8
131
EXHIBIT "N-2"
Form of Superior Lessor Subordination, Nondisturbance and
Attornment Agreement
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").
W I T N E S S E T H :
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 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 [Xxxxx Xxxxxx 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.
N-2-1
132
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, and intending to 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 riot 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 grant-
N-2-2
133
ed to Superior Lessor under its Ground Lease, and Superior Lessor will not
terminate the Space Lease or take any 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
X-0-0
000
Xxxxxx" as such term is defined in the Space Lease, subject however to the terms
and provisions of this Agreement. 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 re-
quested) as may be necessary or appropriate to fully
N-2-4
135
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:_________________________
N-2-5
136
[Acknowledgements]
N-2-6
137
SCHEDULE "A"
Land
N-2-7
138
EXHIBIT "O"
Form of Ground Lessor Nondisturbance Agreement
THIS AGREEMENT, dated as of the ___ day of ___________, 19__, between
XXXXX-PW 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").
W I T N E S S E T H :
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 [Xxxxx
Xxxxxx 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 Landlord.
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 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.
O-1
139
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's 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 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.
O-2
140
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 LIMITED PARTNERSHIP
By: Xxxxx Mountain Industries,
Inc.
By: ________________________________
[SUBTENANT]
By: ________________________________
141
[ACKNOWLEDGEMENT]
O-4
142
EXHIBIT "A"
Demised Premises
O-5
143
EXHIBIT "P"
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.
Window washing will be performed TWO times per year.
P-1
