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Exhibit 10.42
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GROUND LEASE
BETWEEN
XXXXX MOUNTAIN INDUSTRIES, INC.
and
XXXXX-PW LIMITED PARTNERSHIP
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Premises:
Operations Center
Lincoln Harbor Project
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INDEX
ARTICLE PAGE
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1. Definitions .................................. 1
2. Demise and Term .............................. 4
3. Rent ......................................... 5
4. Use of Demised Premises ...................... 6
5. Construction of Building ..................... 6
6. Tax and Operating Expense Payments ........... 7
7. Common Areas ................................. 11
8. Mortgaging and Transfer by Landlord .......... 11
9. Quiet Enjoyment .............................. 12
10. Assignment, Subletting and Mortgaging ........ 12
11. Compliance with Laws ......................... 16
12. Insurance and Indemnity ...................... 17
13. Rules and Regulations ........................ 20
14. Alterations .................................. 21
15. Repairs and Maintenance ...................... 21
16. Electric Energy .............................. 22
17. Other Services: Service Interruption ........ 22
18. Access, Changes and Name ..................... 22
19. Mechanics' Liens and Other Liens ............. 23
20. Non-Liability and Indemnification ............ 23
21. Damage or Destruction ........................ 25
22. Eminent Domain ............................... 26
23. Surrender .................................... 28
24. Conditions of Limitation ..................... 28
25. Re-Entry by Landlord ......................... 29
26. Damages ...................................... 30
27. Affirmative Waivers .......................... 33
28. No Waivers ................................... 33
29. Broker ....................................... 34
30. Curing Tenant's Defaults ..................... 34
31. Notices ...................................... 35
32. Estoppel Certificates ........................ 35
33. Arbitration .................................. 36
34. Memorandum of Lease .......................... 36
35. Miscellaneous ................................ 37
EXHIBITS
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Exhibit "A" Building
Exhibit "B" Fixed Rent
Exhibit "C" Floor Space
Exhibit "D" Property Description
Exhibit "E" Lincoln Harbor Project
Exhibit "F" Mortgage Terms
Exhibit "G" Operating Expenses
Exhibit "H" Fee Mortgage Amounts
Exhibit "I" Landlord's Share of Insurance Proceeds and Con-
demnation Awards
Exhibit "J" Nondisturbance Agreement
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LEASE, dated April 14, 1986, between XXXXX MOUNTAIN INDUSTRIES, INC., a
New York corporation having an office at 400 Plaza Drive, Post Office Xxx 0000,
Xxxxxxxx, Xxx Xxxxxx 00000, and XXXXX-PW LIMITED PARTNERSHIP, a New Jersey
limited partnership having an address at 000 Xxxxx Xxxxx, Xxxx Xxxxxx Xxx 0000,
Xxxxxxxx, Xxx Xxxxxx 00000.
ARTICLE 1 - DEFINITIONS
1.01. As used in 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. Broker: Xxxxxx Xxxxxx & Associates Incorporated.
C. Building: The building to be located on the Land as more
particularly described on the plan attached hereto as Exhibit "A".
D. Calendar Year: Any twelve-month period during the term of this Lease
commencing on a January 1.
E. Commencement Date: The date of this Lease.
F. Demised Premises: The Land, and the Building and any other
improvements now or hereafter located thereon, which Building and other
improvements are and shall be the property of Tenant.
G. Expiration Date: The date that is the day before the ninety-eighth
(98th) anniversary of the Commencement Date if the Commencement Date is the
first day of a month, or the ninety-eighth (98th) anniversary of the last day of
the month in which the Commencement Date occurs if the Commencement Date is not
the first day of a month.
H. Fixed Rent: As set forth on the Rent Schedule annexed hereto as
Exhibit "B".
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I. Fixed Rent Commencement Date: Shall mean the Commencement Date (as
defined in the Space Lease).
J. Floor Space: 604,528, as the same may be increased or decreased
pursuant to Section 35.13 hereof, and as more particularly set forth on Exhibit
"C" annexed hereto and made a part hereof.
X. Xxxxx Lease: The Agreement of Lease, dated of even date herewith,
between Tenant, as landlord, and Xxxxx Mountain Industries, Inc., as tenant,
pursuant to which Tenant subleased a portion of the Building to Xxxxx Mountain
Industries, Inc.
L. 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.
M. Land: The land described on Exhibit "D" annexed hereto and made a
part hereof.
N. Landlord: On the date as of which this Lease is made, shall mean
Xxxxx Mountain Industries, Inc., a New York corporation having an address at 000
Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, but thereafter "Landlord" shall mean
only the fee owner of the Land.
O. 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.
X. Xxxxxxx Harbor Project: The project more particularly described on
Exhibit "E" annexed hereto and made a part hereof.
Q. Mortgage: The mortgage creating a lien on the leasehold estate
created pursuant to this Lease, to be entered into pursuant to a loan commitment
substantially on the terms set forth in the schedule annexed hereto as Exhibit
"F", and any replacement, extension, modification, or amendment thereto.
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R. Operating Expenses: The costs and expenses for the items set forth
on said Exhibit "G" annexed hereto and made a part hereof.
S. Permitted Uses: Any and all uses permitted by law and which are in
keeping with the character and quality of the Lincoln Harbor Project.
T. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
U. Project Floor Space: 2,206,457, as the same may be increased or
decreased pursuant to Section 35.13 hereof, and as more particularly set forth
on Exhibit "C" annexed hereto and made a part hereof.
V. 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 this Lease.
W. Rent: The Fixed Rent and the Additional Charges.
X. Rules and Regulations: The reasonable rules and regulations that may
be promulgated by Landlord from time to time in connection with the common areas
of the Lincoln Harbor Project, as may be reasonably changed by Landlord from
time to time.
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Y. Space Lease: The Agreement of Lease, dated of even date herewith,
between Tenant, as Landlord, and PaineWebber Incorporated, as tenant, pursuant
to which Tenant subleased the Land and the Building to PaineWebber, Inc.
Z. Subtenants: The tenants under the Space Lease and the Xxxxx Lease
from time to time.
AA. Tenant: On the date as of which this Lease is made shall mean
Xxxxx-PW Limited Partnership, but thereafter "Tenant" shall mean only the tenant
under this Lease at the time in question, provided, however, that nothing herein
shall be construed as relieving Xxxxx-PW Limited Partnership of any liability
for the obligations of Tenant hereunder in the event Xxxxx-PW Limited
Partnership ceases to be the Tenant hereunder, except as otherwise expressly
provided herein or by separate agreement between Landlord and Xxxxx-PW Limited
Partnership.
BB. Tenants' Fraction: 27.4%, determined by dividing the Floor Space by
the Project Floor Space, as the same may be decreased pursuant to Section 35.13
hereof.
CC. Term: The period commencing on the Commencement Date and ending
at 11:59 P.M. of the Expiration Date, unless otherwise terminated in accordance
with the provisions hereof.
DD. Unavoidable Delay: 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 other
than such party's financial condition, 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.
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ARTICLE 3 - RENT
3.01. Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the fifth (5th) 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 at its office, or such other place, or Landlord's agent, as Landlord
shall designate by notice to Tenant. Tenant shall pay the Rent promptly when due
and without any abatement, deduction or setoff for any reason whatsoever, except
as may be expressly provided in this Lease. Tenant shall assume the risk of
lateness or failure of delivery of the mails, and no lateness or failure of the
mails will excuse Tenant from its obligation to have made the payment in
question when required under this Lease.
3.03. No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04. If Tenant is in arrears in payment 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
ten (10) days or any other item of Rent within thirty (30) days after the date
when such payment is due and Landlord shall have delivered a xxxx for same
(which delivery may be by invoice and shall not be required to comply with the
requirements for notices
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specified in Article 31 of this Lease), then any such payment shall bear
interest calculated from the due date to the date such payment is received by
Landlord, at a rate equal to two (2) percentage points in excess of the rate of
interest publicly announced from time to time by Citibank, N.A., or its
successor, as its "base rate" (or such other term as may be used by Citibank,
N.A., from time to time, for the rate presently referred to as its "base rate")
(the "Late Payment Rate").
3.06. It is the intention of the parties that the Fixed Rent payable
under this Lease shall be net to Landlord, so that this Lease shall yield to
Landlord the Fixed Rent specified herein during the Term of this Lease, and that
all costs, expenses and obligations of every kind and nature whatsoever relating
to the Demised Premises shall be paid by Tenant, other than liens placed on the
Demised Premises by Landlord, or claims against Landlord for Landlord's
negligence or default under the terms of this Lease (nothing herein shall be
construed as affecting the provisions of any insurance carried by Landlord,
Tenant, subtenant or assign with respect to the Demised Premises, including fire
and hazard insurance, liability insurance and any other insurance).
ARTICLE 4 - USE OF DEMISED PREMISES
4.01. Tenant shall use and occupy the Demised Premises only for the
Permitted Uses and in compliance with all Legal Requirements.
ARTICLE 5 - CONSTRUCTION OF BUILDING
5.01. Tenant shall, at its own cost and expense, cause the construction
of the Building and the other improvements contemplated in connection therewith
substantially in accordance with the provisions of the Space Lease.
5.02. Tenant shall at all times during the term of this Lease, at its
own cost and expense, keep and maintain in good condition, or cause to be kept
and maintained, the Demised Premises in compliance with all Insurance
Requirements and Legal Requirements. Landlord shall not be required to furnish
any services or facilities or to make any improvements, repairs or alterations
in or to the Demised Premises during the term of this Lease.
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5.03. Tenant may, at its option and its own cost and expense, at any
time and from time to time, make such alterations, changes, replacements,
improvements and additions (herein collectively called "Alterations") in and to
the Demised Premises as it may deem desirable.
5.04. At any time on or before the Expiration Date, Tenant shall have
the right, but not the obligation, to remove all or any portion of the Building.
If, on the Expiration Date, all or any portion of the Building shall remain on
the Land, title thereto shall become the sole property of the Landlord.
5.05. Landlord reserves the right, at any time and from time to time,
to increase, reduce or change the number, type, size, location, elevation,
nature and use of any buildings and other improvements in the Lincoln Harbor
Project, 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; provided that such shall not deviate
materially from the approved site plan without Tenant's prior written 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 35.14 hereof.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01. On or before the Commencement Date (as such term is defined in
the Space Lease) Landlord shall use its best efforts to obtain from the City of
Weehawken a separate tax lot and zoning lot number for the Demised Premises.
Commencing on the Commencement Date and provided that Landlord shall have
obtained a separate tax lot number for the Demised Premises, Tenant shall pay to
the appropriate governmental authority the Real Estate Taxes for the Land and
the Building for each year during the Term not later than one (1) business day
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 Demised
Premises on or before the Commencement Date, then, commencing on the
Commencement Date, Tenant shall pay to Landlord an amount equal to its
Proportionate Share (hereinafter defined) of the Real Estate Taxes for the Land
and the Building for the tax lot of which the Demised Premises form a part for
any
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year during the Term not later than five (5) business days before any
delinquency fee would be imposed upon the payment of the same, until such time
as Landlord shall have obtained such separate tax lot number; but in no event
shall Tenant's payment for Real Estate Taxes be more or less than that amount
which Tenant would have paid if the Demised Premises were a separate tax lot.
Tenant's "Proportionate Share" shall mean 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 in 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 thereafter, the Demised Premises will constitute a
separate tax and zoning 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) 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 a
monthly basis on or before the tenth (10th) day of each calendar 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 February 15 of each calendar year or partial
calendar year during the Term, Landlord shall furnish Tenant with an operating
statement (the "Operating State-
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ment") in reasonable detail setting forth the actual Operating Expenses for the
preceding calendar year. If such Operating Statement shall show that the actual
Operating Expenses for the preceding calendar year were in excess of those
estimated by Landlord and previously paid by Tenant, then within forty (40) days
after receipt of such actual Operating Statement, Tenant shall remit to Landlord
any such deficiency together with interest thereon at the Late Payment Rate,
calculated from the date of each payment to the date of payment or refund, as
the case may be. 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 together with interest thereon at the Late Payment
Rate, calculated from the date of each payment to the date of payment or refund,
as the case may be.
(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
and Tenant shall agree upon in writing shall be substituted for the CPI. If
Landlord or Tenant are unable to agree as to such substituted index, such matter
shall be submitted to the American Arbitration Association or any successor
organization for determination in accordance with the regulations and procedures
thereof then obtaining for commercial arbitration. After receipt of such
Operating Statement, Tenant shall pay to Landlord a sum equal to 1/12th of the
amount shown on such statement multiplied by the number of months of the Term in
said calendar year preceding the demand, less the amount (if any) paid by Tenant
prior to such demand pursuant hereto for such months, and thereafter, commencing
with the month in which the demand is made in continuing thereafter for each
month of the Term until the rendition
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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 120 days after the
receipt of the Operating Statement provided for above Tenant shall notify
Landlord that it or the Subtenant under the Space Lease 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, Subtenant, 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 or Subtenant
still disputes such Operating Statement, any party may refer the decision of the
issues raised to one of the so-called "big eight" public accounting firms,
mutually satisfactory to Landlord, Tenant and Subtenant, or if Landlord, Tenant
and Subtenant shall be unable to agree, then the firm to which the dispute shall
be referred shall be chosen as follows: Landlord, Tenant and Subtenant 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. Provided, however, that if
such a firm has been chosen by Tenant and the Subtenant by such process, the
firm so chosen shall be deemed acceptable to Landlord and Tenant. The firm so
chosen may, in its discretion, retain one or more consultants to assist in the
resolution of the dispute referred to it. The decision of such accountants,
absent manifest error, shall be conclusively binding upon the parties. The fees
and expenses (including the fees of such consultants) involved in such decisions
shall be borne by the unsuccessful party as between Landlord and Tenant (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 twenty (20) days after
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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. Tenant and its subtenants and concessionaires, and their
respective officers, employees, agents, customers and invitees, shall have the
non-exclusive right, in common with Landlord and all others to whom Landlord (or
other owner of the Lincoln Harbor Project) has granted or may hereafter grant
such right, but subject to the Rules and Regulations, to use the common areas of
the Lincoln Harbor Project. Landlord reserves the right, at any time and from
time to time, to close temporarily all or any portions of such 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) 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) protect or
preserve natural persons or property. Landlord also reserves the right to grant
easements for public utilities (including, without limitation, easements
affecting the Land, in connection with the development of the Lincoln Harbor
Project. Landlord may do such other acts in and to such 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 such
common areas without Tenant's approval, which approval shall not be unreasonably
withheld or delayed. In all such events, such work shall be commenced and
prosecuted diligently and with as little interference as possible with Tenant's
use of the Demised Premises.
7.02. Tenant agrees that it, any subtenant or licensee and their
respective officers, employees; contractors and agents will park their
automobiles and other vehicles only upon the Land.
ARTICLE 8 - MORTGAGING AND TRANSFER BY LANDLORD
8.01. Landlord may not mortgage the fee or the Land except in
connection with a mortgage or mortgages in an aggregate amount not to exceed the
amounts set forth
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on Exhibit "H" annexed hereto and made a part hereof, with an aggregate annual
debt service in no event to exceed the quotient of the Fixed Rent for such year
divided by 1.2, and which shall be prepayable at any time without penalty. The
lien of any such mortgage shall be expressly subordinate to the estate created
by this Lease. Landlord may not further lease its fee interest in the Land.
8.02. Landlord may not sell, transfer or otherwise convey its interest
in the Land except to an entity, person or partnership with a general partner or
partners with a net worth at least $100,000,000, 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 $100,000,000 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 $100,000,000.
ARTICLE 9 - QUIET ENJOYMENT
9.01. 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.
ARTICLE 10 - ASSIGNMENT, SUBLETTING AND MORTGAGING
10.01. Tenant shall have the right, at any time, without Landlord's
consent, upon thirty (30) days prior written notice to Landlord, 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.
10.02. 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
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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 release of Tenant from the
performance by Tenant of Tenant's obligations under this Lease.
10.03. Any assignee shall execute, acknowledge and deliver to Landlord,
within thirty (30) days after an assignment of this Lease, an agreement whereby
the assignee shall assume Tenant's obligations under this Lease and whereby the
assignee shall agree that all of the provisions in this Article 10 shall,
notwithstanding such assignment or transfer, continue to be binding upon it in
respect to all future assignments and transfers.
10.04. 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.
10.05. Landlord agrees, upon written request of Tenant, to subordinate
its fee interest in the Land and any interest it may have in the Building to the
lien of the Mortgage or any other financing at any time secured by the estate
created by this Lease. Landlord promptly shall execute and deliver any
instruments confirming such subordination, including the Mortgage, requested by
the holder of the Mortgage at any time.
10.06. In addition to the Mortgage, Tenant may further mortgage and
otherwise encumber this Lease, provided such other mortgages and encumbrances
shall be subject and subordinate in all respects to the Mortgage.
10.07. Landlord shall give to each mortgagee, including the holder of
the Mortgage, of which it has been notified, at the address of such mortgagee
set forth
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in such notice, and otherwise in the manner provided by Article 34 hereof, a
copy of each notice of an Event of Default by Tenant at the same time as, and
whenever, any such notice of an Event of Default shall thereafter be given by
Landlord to Tenant, and no such notice of an Event of Default by Landlord shall
be deemed to have been duly given to Tenant unless and until a copy thereof
shall have been so given to each mortgagee. Subject to the prior rights of the
holder of the Mortgage, each other mortgagee (i) shall thereupon have a period
of ten (10) business days more, after such notice is given to it, for remedying
the Event of Default, or causing the same to be remedied, than is given Tenant
after such notice is given to it, and (ii) shall, within such period and
otherwise as herein provided, have the right to remedy such Event of Default or
cause the same to be remedied. Landlord will accept performance by a mortgagee,
including the holder of the Mortgage, of any covenant, condition, or agreement
on Tenant's part to be performed hereunder with the same force and effect as
though performed by Tenant. In addition, no Event of Default by Tenant shall be
deemed to exist as long as the holder of the Mortgage or any other mortgagee, in
good faith, shall have commenced promptly either (i) to cure the Event of
Default and to prosecute the same to completion, or (ii) if possession of the
Premises is required in order to cure the Event of Default or if the Event of
Default is of a nature that is not susceptible to cure (i.e., bankruptcy), to
institute foreclosure proceedings and obtain possession directly or through a
receiver, to prosecute such proceedings with diligence and continuity and, upon
obtaining such possession, commenced promptly to cure the Event of Default (if
the same shall be susceptible of cure) and to prosecute the same to compliance
with diligence and continuity, provided, however, that the mortgagee shall have
delivered to Landlord, in writing, its agreement to take the action described in
clause (i) or (ii) herein, and that during the period in which such action is
being taken (and any foreclosure proceedings are pending) all of the other
obligations of Tenant under this Lease, to the extent they are susceptible of
being performed by the mortgagee, are being duly performed. However, at any time
after the delivery of the aforementioned agreement, the mortgagee may notify
Landlord, in writing, that it has relinquished possession of the Demised
Premises or that it will not institute foreclosure proceedings or, if such
proceedings have been commenced, that it has discontinued them, and in such
event the
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mortgagee shall have no further liability under such agreement from and after
the date it delivers such notice to Landlord (except for any obligations
accruing prior to the date it delivers such notice), and thereupon Landlord
shall have the unrestricted right to terminate this Lease and to take any other
action it deems appropriate by reason of any Event of Default by Tenant, and
upon any such termination the provisions of Section 11.10 hereof shall be
applicable.
10.08. Landlord and Tenant agree that they will not modify or amend
this Lease in any respect, or cancel or terminate this Lease other than as
provided herein, without the prior written consent of the holder of the Mortgage
and any other mortgagee of which Landlord has notice.
10.09. (a) In case of termination of this Lease by reason of any Event
of Default, Landlord shall give prompt notice thereof to each mortgagee holding
a mortgage on Tenant's leasehold estate. Landlord, subject to the rights of the
holder of the Mortgage, on written request of a mortgagee made any time within
thirty (30) days after the giving of such notice by Landlord, shall execute and
deliver a new lease of the Demised Premises to such mortgagee, or its designee
or nominee, for the remainder of the Term, upon all the covenants, conditions,
limitations and agreements herein contained, provided that the mortgagee shall
pay to Landlord, simultaneously with the delivery of such new lease, all unpaid
Rent due under this Lease up to and including the date of the commencement of
the term of such new lease and all expenses including, but not limited to,
reasonable attorneys' fees and disbursements and court costs incurred by
Landlord in connection with the Event of Default by Tenant, the termination of
this Lease and the preparation of the new lease. To the extent permitted by law,
any such new lease and the leasehold estate thereby created shall, subject to
the same conditions contained in this Lease, continue to maintain the same
priority as this Lease with regard to the Mortgage or any other mortgage or any
part thereof or any other lien, charge or encumbrance thereon whether or not the
same shall then be in existence. Concurrently with the execution and delivery of
such new lease, Landlord shall assign to tenant named therein all of its right,
title and interest in and to moneys (including insurance and condemnation
proceeds), if any, then held by or payable to Landlord, which Tenant would
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have been entitled to receive but for the termination of this Lease, less any
sums reasonably expended by Landlord as a result of such Event of Default, and
any sums then held by or payable to Landlord shall be deemed to be held by or
payable to it as Landlord under the new lease.
(b) Upon the execution and delivery of a new lease under this
Section 10.09, if the Space Lease, the Xxxxx Lease or any other sublease for the
Demised Premises or a portion thereof theretofore shall have been assigned to
Landlord, it thereupon shall be assigned and transferred, without recourse, by
Landlord to tenant named in such new lease. Between the date of termination of
this Lease and the date of execution and delivery of such new lease, if a
mortgagee shall have requested such new lease as provided in paragraph (a) of
this Section, Landlord will not cancel the Lease or any other such sublease or
accept any cancellation, termination or surrender thereof (unless such
termination shall be effected as a matter of law on the termination of this
Lease or the Space Lease, the Xxxxx Lease, or such other sublease has expired in
accordance with its terms) without the consent of the mortgagee.
10.10. If there is more than one mortgage, Landlord will recognize the
holder of the Mortgage and, thereafter, the mortgagee whose mortgage is senior
in lien, as the Person entitled to the rights afforded by Sections 10.07, 10.08
and 10.09 hereof.
10.11. No mortgagee shall become liable for the performance or
observance of any covenants or conditions to be performed or observed by Tenant
unless and until such mortgagee becomes the owner of Tenant's interest hereunder
upon the exercise of any remedy provided far in any mortgage. Thereafter such
mortgagee shall be liable for the Performance and observance of such covenants
and conditions only so long as such mortgagee owns such interest.
ARTICLE 11 - COMPLIANCE WITH LAWS
11.01. 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,
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penalties and damages which may be imposed upon Landlord by reason of or arising
out of Tenant's failure to fully and promptly comply with and observe the
provisions of this Section 11.01. 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 11.02.
11.02. 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 or civil penalty 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; and (b) Tenant shall keep
Landlord advised as to the status of such proceedings. Without limiting the
application of the above, Landlord shall be deemed subject to prosecution for a
crime if Landlord, or its managing agent, or any officer, director, partner,
shareholder or employee of Landlord or its managing agent, as an individual, is
charged with a crime of any kind or degree whatsoever, whether by service of a
summons or otherwise.
ARTICLE 12 - INSURANCE AND INDEMNITY
12.01. (a) Tenant shall at all times during the term hereof maintain or
cause to be maintained business interruption insurance with a rent insurance
endorsement payable to Landlord, covering the Rent for a period of at least
twelve (12) months. An endorsement or assignment of such insurance maintained by
the Subtenants or other subtenants of Tenant may be provided to Landlord. Tenant
also shall obtain and keep in full force and effect insurance against loss or
damage by fire and other casualty to the Building, 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. Landlord shall cooperate with
Tenant and Tenant's insurance companies in the adjustment of any claims for any
damage to the Building. On or prior to the Commencement Date (as such term is
defined in the Space Lease), Tenant shall deliver to Landlord appropriate
certificates of insurance, including evidence of waivers of subrogation required
pursuant to Section 12.04 hereof, required, to be carried by Tenant pursuant to
this
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Article 12. Evidence of each renewal or replacement of a policy shall be so
delivered by Tenant to Landlord at least fifteen days prior to the expiration of
such policy. Any certificates so deposited by Tenant with Landlord shall
indicate whether the insurance required by this Article 12 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.
12.02. 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, 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
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 (as
such term is defined in the Space Lease). 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 20 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 30 days' prior written notice of such
cancellation.
12.03. The provisions of Section 20.02 of this Lease are incorporated
herein by reference as though set forth more particularly at length in this
Section 12.03.
12.04. The parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Demised
Premises 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
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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 of recovery. If the
payment of an additional premium is required for the inclusion of such waiver of
subrogation provision, each party shall advise the other of the amount of any
such additional premiums and the other party at its own election may, but shall
not be obligated to, pay the same. If such other party shall not elect to pay
such additional premium or if such clause may not be obtained, even with the
payment of an additional premium, then (in either event) such party shall so
notify the first party and the first party's agreement not to make any claim or
seek recovery 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
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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
12, the agreement not to make any claim or seek recovery contained in the first
sentence of this Section 12.04 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 13 - RULES AND REGULATIONS
13.01. 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 operation or maintenance of the
common areas of the Lincoln Harbor Project, and which do not unreasonably affect
the conduct of Tenant's business in the Demised Premises; provided, however,
that in case of any conflict or inconsistency between the provisions of this
Lease and any of the Rules and Regulations, the provisions of this Lease shall
control. Nothing in this Lease contained shall be construed to impose upon
Landlord any duty or obligation to enforce the Rules and Regulations against any
other tenant or any employees or agents of any other tenant, and Landlord shall
not be liable to Tenant for violation of the Rules and Regulations by any other
tenant or its employees, agents, invitees or licensees, provided, however,
Landlord shall not enforce any Rule or Regulation against Tenant which Landlord
shall not then be enforcing against all other tenants of the Lincoln Harbor
Project. 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.
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ARTICLE 14 - ALTERATIONS
14.01. Subject to the provisions of the Mortgage or any leasehold
mortgage to which Landlord may have subordinated its fee interest in the Land,
and the Space Lease and the Xxxxx Lease, Tenant shall have the right to
demolish, replace, remove and alter the Demised Premises, or any part thereof,
and make any addition thereto, all in compliance with Legal Requirements.
ARTICLE 15 - REPAIRS AND MAINTENANCE
15.01. Notwithstanding anything contained herein to the contrary,
Landlord shall be responsible for maintenance of the common areas of the Lincoln
Harbor Project, all which shall be maintained in accordance with standards
reasonably satisfactory to Landlord and Tenant and in any event in accordance
with the standards of a first-class office project in the northern New Jersey
metropolitan area and with the provisions of the Reciprocal Construction
Operation and Easement Agreement, to be entered into substantially in accordance
with the draft dated March 5, 1986, between Landlord and the Township of
Weehawken. Landlord hereby covenants and agrees to use its best efforts to
enforce in accordance with their terms, the provisions of all other agreements
affecting the Lincoln Harbor Project. To the extent that Landlord shall fail to
maintain such common areas, upon thirty (30) days' prior written notice to
Landlord (or such shorter notice as may be reasonable in the event of an
emergency) 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.
15.02. Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Tenant, nor shall Tenant's covenants and obligations
under this Lease be reduced or abated in any manner whatsoever, by reason of any
inconvenience, annoyance, interruption or injury to business arising from
Landlord's doing any repairs, maintenance, or changes which Landlord is required
or permitted by this Lease, or required by law, to make in or to any portion of
the Demised Premises.
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ARTICLE 16 - ELECTRIC ENERGY
16.01. 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 Demised Premises. Landlord shall not be liable for any
failure, inadequacy or defect in the character or supply of electric current
furnished to the Demised Premises except for actual damage suffered by Tenant by
reason of any such failure, inadequacy or defect caused by the gross negligence
or willful or wrongful act of Landlord.
ARTICLE 17 - OTHER SERVICES: SERVICE INTERRUPTION
17.01. Tenant shall cause the Building, including the exterior and
the interior of the windows of the Building, to be cleaned.
17.02. Landlord shall cause water to be supplied to the Demised
Premises for Tenant's purposes and Tenant shall pay for such as shown on the
public utility meters therefor.
ARTICLE 18 - ACCESS, CHANGES AND NAME
18.01. 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 to examine the
Demised Premises, 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.
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18.02. Tenant shall have the right, from time to time, to name the
Building.
ARTICLE 19 - 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, or the Demised Premises, 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 thirty (30) days after notice by Landlord to
Tenant.
ARTICLE 20 - NON-LIABILITY AND INDEMNIFICATION
20.01. In addition to the provisions of Article 12 of this Lease,
except as set forth in the Guarantees, dated of even date herewith, by Landlord
for the benefit of Xxxxx Xxxxxx, Inc. (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 gross negligence or willful acts of Landlord, its agents,
servants or employees in the operation or maintenance of the common areas of the
Lincoln Harbor Project. Further, neither Landlord nor any partner, joint
venturer, director, officer, agent, servant or employee of Landlord shall be
liable (a) for any damage caused by either tenants or Persons in, upon or about
the Demised Premises, 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.
20.02. Tenant shall indemnify and hold harmless Landlord and its
partners, joint venturers, directors, officers, agents, servants and employees
from and against any and all claims arising from or in connection with (a)
Tenant's conduct or management of the Demised Premises or of any business
therein, or any work or thing
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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; (b) any act, omission or negligence of tenant or any of its subtenants
or licensees or its or their partners, joint ventures, directors, officers,
agents, employees or contractors; (c) any accident, injury or damage whatever
(except to the extent caused by Landlord's willful acts or gross negligence)
occurring in the Demised Premises or the common areas of the Lincoln Harbor
Project; 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 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 its partners, joint venturers, directors, officers,
agents and/or employees by reason of any such claim, Tenant, upon notice from
Landlord, shall resist and defend such action or proceeding by counsel
reasonably satisfactory to Landlord. Counsel appointed by the insurance company
insuring the Demised Premises shall be deemed satisfactory to Landlord.
20.03. 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 Demised Premises (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 claim against Landlord arising out of or in connection with this
Lease, the relationship of Landlord and Tenant or Tenant's use of the Demised
Premises, or the common areas of the Lincoln Harbor Project, Tenant, (and its
successors 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 Demised Premises, or the common areas of the Lincoln Harbor
Project 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
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remedy of Tenant arising out of, or in connection with, this Lease, the
relationship of Landlord and Tenant or Tenant's use of the Demised Premises, or
the common areas of the Lincoln Harbor Project. 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 21 - DAMAGE OR DESTRUCTION
21.01. Tenant hereunder shall have no obligation to repair or restore
any damage by fire or other casualty to the Demised Premises.
21.02. Landlord shall have no right to terminate this Lease in
connection with any casualty. Tenant shall have the right to terminate this
Lease in accordance with the provisions of Section 35.12 hereof.
21.03. Except as provided for in Section 35.12 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 21. At no time shall there be an abatement or
reduction of the Rent as a result of any casualty.
21.04. Notwithstanding any of the foregoing provisions of this Article
21, 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) Tenant shall be unable to collect all of the
insurance proceeds (including, without limitation, rent insurance proceeds)
applicable to damage or destruction of the Demised Premises 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 21 shall relieve Tenant from any liability that may exist as a
re-
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xxxx of any damage or destruction by fire or other casualty.
21.05. In the event of any casualty or other damage, all insurance
proceeds shall be paid to and be the property of Tenant; provided, however, that
if Tenant shall elect to terminate this Lease in accordance with the provisions
of Section 35.12 hereof, or if this Lease is otherwise terminated prior to
restoration all insurance proceeds shall first be paid to, and be the property
of, Landlord in the amount set forth on Exhibit "I" annexed hereto and made a
part hereof, and the balance shall be paid to, and be the property of Tenant.
21.06. The provisions of this Article 21 shall be deemed an express
agreement governing any case of damage or destruction of the Demised Premises by
fire or other casualty, and any law providing for such a contingency in the
absence of an express agreement, now or hereafter in force, shall have no
application in such case.
ARTICLE 22 - EMINENT DOMAIN
22.01. If the whole of the Demised Premises shall be taken by any
public or quasi-public authority under the power of condemnation, eminent domain
or expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof (collectively referred to as a "Taking") this Lease
shall terminate as of the day possession shall be taken by such authority, it
being understood that there shall be no abatement of Fixed Rent but that
Operating Expenses, Tenant's Fraction and Tenant's Proportionate Share, if
applicable, shall be equitably adjusted. If fifteen percent (15%) or less 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 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 Tenant shall have the right to terminate this Lease upon
notice given to the other party within sixty (60) days after the filing of the
declaration of taking. If so much of the parking facilities shall be so taken or
conveyed that the number of parking spaces necessary, for the continued lawful
operation of
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the Demised Premises shall not be available, Tenant may, by notice to Landlord,
terminate this Lease as of the day possession shall be taken. 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 22.01, this Lease and the Term
shall come to an end and expire as of the date of such termination, 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, Tenant 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 Tenant
for the improvements taken or conveyed, make all necessary alterations so as to
constitute the remaining Demised Premises a complete architectural and
tenantable unit. It being understood that there shall be no abatement of Fixed
Rent but that Operating Expenses, Tenant's Fraction and Tenant's Proportionate
Share, if applicable, shall be equitably adjusted. All awards and compensation
for any taking or conveyance, whether for the whole or a part the Demised
Premises, shall be divided between Landlord and Tenant in accordance with the
provisions of Section 22.03.
22.02. If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the use and occupancy of the
Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and restoration and Tenant shall restore 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 includ-
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ing the Expiration Date and Landlord shall receive so much thereof as represents
compensation for the period after the Expiration Date.
22.03. In the event this Lease is terminated as the result of a Taking
the proceeds of any award given in connection with such Taking shall, subject to
the provisions of the Mortgage, be paid first to Landlord up to the amount shown
on Exhibit "I" annexed hereto and made a part hereof and the balance shall be
paid to Tenant. In the event of a Taking which does not result in a termination
of this Lease, any award or compensation given for any such Taking shall,
subject to the provisions of the Mortgage, be paid to Tenant.
ARTICLE 23 - SURRENDER
23.01. 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.
23.02. 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.
23.03. 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 24 - CONDITIONS OF LIMITATION
24.01. This Lease is subject to the limitations (collectively referred
to as "Events of Default") that: (a) if Tenant shall default in the payment of
any installment of Fixed Rent, and such default shall continue for ten (10) days
after invoice for same by Landlord or for ten (10) days after notice of such
default, whichever is shorter, or if Tenant shall default in the payment of any
installment of Rent (other than Fixed Rent) and such default shall continue for
forty-five (45) days after notice of such default, or (b) if Tenant shall,
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whether by action or inaction, be in default of any of its obligations under
this Lease (other than a default in the payment of Rent) and such default shall
continue and not be remedied within forty-five (45) 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 forty-five (45) days
and the continuance of which for the period required for cure will not subject
Landlord to prosecution for a crime (as more particularly described in the last
sentence of Section 11.02), if Tenant shall not, (i) within said forty-five (45)
day period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (ii) duly commence within said forty-five (45) 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, then in any of said cases Landlord may give to
Tenant a notice of intention to end the Term at the expiration of fifteen (15)
days from the date of the service of such notice of intention, and upon the
expiration of said fifteen (15) 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 remain liable for
damages as provided in Article 26.
ARTICLE 25 - RE-ENTRY BY LANDLORD
25.01. If this Lease shall terminate as provided in Article 24,
Landlord or Landlord's agents and employees may immediately or at any time
thereafter re-enter the Demised Premises, or any part thereof, either by summary
dispossess proceedings or by any suitable action or proceeding at law, or
otherwise, without being liable to indictment, prosecution or damages therefor,
and may repossess the same, and may remove any Person therefrom, to the end that
Landlord may have, hold and enjoy the Demised Premises. The word "re-enter", as
used herein, is not restricted to its technical legal meaning. If this Lease is
terminated under the provisions of Article 24, or if Landlord shall re-enter the
Demised Premises under the provisions of this Article 25, 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
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termination of this Lease, or of such recovery of possession of the Demised
Premises by Landlord, as the case may be, and shall also pay to Landlord damages
as provided in Article 26.
25.02. 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.
25.03. If this Lease shall terminate under the provisions of Article
24, or if Landlord shall re-enter the Demised Premises under the provisions of
this Article 25, or in the event of the termination of this Lease, or of
re-entry by or under any summary dispossess or other proceeding or action 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 otherwise, 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 26 or pursuant to law.
ARTICLE 26 - DAMAGES
26.01. If this Lease is terminated under the provisions of Article 24,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 25, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action 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 to be the same as were the average monthly
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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 or 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 amount shall be discounted to the
then 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
De-mised 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 Premises
and the rental therefrom, it being understood that any such reletting may be for
a period shorter or longer than the period ending on the Expiration Date; but in
no event shall Tenant be entitled to receive any excess of such net rents over
the sums payable by Tenant to Landlord hereunder, nor shall Tenant be entitled
in any suit for the collection of damages pursuant to this sub-division (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
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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 rent or failure to collect rent shall release or affect Tenant's liability
for damages or otherwise under this Lease.
26.02. 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 25, or under any
provision of law, or had Landlord not re-entered the Demised Premises. Nothing
herein contained shall be construed to limit or preclude recovery by Landlord
against Tenant of any sums or damages to which, in addition to the damages
particularly provided above, Landlord may lawfully be entitled by reason of any
default hereunder on the part of Tenant. Nothing herein contained shall be
construed to limit or prejudice the right of Landlord to prove for and obtain as
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 26.01.
26.03. In addition, if this Lease is terminated under the provisions of
Article 24, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 25, Tenant covenants that for the breach of any covenant
of tenant set forth above in this Section 26.03, 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).
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26.04. In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 26, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within ten (10) 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 27 - AFFIRMATIVE WAIVERS
27.01. 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 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.
27.02. 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 28 - 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
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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 29 - 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 forty-five (45) days from
the date Landlord gives Tenant notice of the default. Bills for any expenses
incurred by Landlord in connection with any such performance by it for the
account of Tenant, and bills for all costs, expenses and disbursements of every
kind and nature whatsoever, including reasonable attorneys' fees and expenses,
involved in collecting or endeavoring to collect the Rent or any part thereof or
enforcing or endeavoring to enforce any rights against Tenant or Tenant's
obligations hereunder, under or in connection with this Lease or pursuant to
law, including any such cost, expense and disbursement involved in instituting
and prosecuting summary proceedings or in recovering possession of the Building
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 by Landlord to Tenant monthly, or
immediately, at Landlord's option, and such amounts shall be due and payable in
accordance with the terms of such bills.
ARTICLE 30 - 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
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with any broker other than the Broker. The commissions due the Broker if any,
shall be paid pursuant to a separate agreement with the Broker.
ARTICLE 31 - 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 (except with respect to invoices for Fixed Rent)
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 with respect to Tenant c/o Hartz Mountain Industries, Inc., Attention
General Counsel, with copies to Xxxxx Xxxxxx, Inc., 0000 Xxxxxx xx xxx Xxxxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Facilities Department - Vice President and
to Skadden, Arps, Slate, Xxxxxxx and Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxxx X. Xxxxxxx, Esq., and to Horowitz, Bross, Sinins &
Imperial, P.A., 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention:
Xxxxx X. Xxxxxxxx, Esq. and with respect to Landlord, to the attention of
General Counsel with a concurrent notice to the attention of President, with a
copy to Horowitz, Bross, Sinins & Imperial, P.A., 0000 Xxxxxxx Xxxxxxxxx,
Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx X. Xxxxxxxx, Esq., and any mailed
notice, statement, demand, consent, approval or other communication, shall be
deemed to have been given, rendered or made on the date delivered or if mailed
on the day after the day so 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 32 - 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
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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 or 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 each party may reasonably request.
ARTICLE 33 - ARBITRATION
Except as may be otherwise expressly provided in this Lease, Landlord
or Tenant may at any time request arbitration, of any matter in dispute. The
party requesting arbitration shall do so by giving notice to that effect to the
other party, specifying in said notice the nature of the dispute, and said
dispute shall be determined in Newark, New Jersey, by a single arbitrator, in
accordance with the rules then obtaining of the American Arbitration Association
(or any organization which is the successor thereto). The award in such
arbitration may be enforced on the application of either party by the order or
judgment of a court of competent jurisdiction. The fees and expenses of any
arbitration shall be borne by the parties equally, but each party shall bear the
expense of its own attorneys and experts and the additional expenses of
presenting its own proof.
ARTICLE 34 - 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 the Fixed Rent Commencement Date either an
agreement or a restated memorandum (if a memorandum shall have been executed or
re-
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corded as provided immediately above) stating the Fixed Rent Commencement Date
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 Fixed Rent Commencement Date. 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 35 - MISCELLANEOUS
35.01. Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
35.02. 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 the Landlord and Tenant.
35.03. 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.
35.04. Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the par-
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ties 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
35.04 shall not be construed as modifying the conditions of limitation contained
in Article 24.
35.05. 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 35.05, 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.
35.06. 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.
35.07. Tenant shall not exercise its rights under Article 14 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.
35.08. Tenant shall give prompt notice to Landlord of (a) any
occurrence in or about the Demised Premises for which Landlord might be liable,
and (b) any fire or other casualty in the Demised Premises.
35.09. 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
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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.
35.10. Landlord recognizes and acknowledges that for so long as the
Space Lease and the Xxxxx Lease shall be in full force and effect, all
obligations of Tenant hereunder may be performed by the tenants under the Space
Lease and the Xxxxx Lease. Notwithstanding anything contained herein to the
contrary, to the extent that the tenant under the Space Lease or the Xxxxx Lease
shall perform or comply with any obligation required to be performed or complied
with thereunder, Landlord shall accept such performance and Tenant shall be
deemed to have performed or complied with the corresponding obligation
hereunder.
35.11. Upon request by the tenant under the Space Lease, Landlord shall
enter into a non-disturbance agreement in the form annexed hereto and made a
part hereof as Exhibit "J", with any subtenant of the tenant under the Space.
Lease occupying one or more full floors of the Demised Premises.
35.12. Notwithstanding anything contained herein to the contrary, upon
any termination of the Space Lease, including, but not limited to, whether
because of (x) the exercise by the tenant thereunder of any rights it may have
to so terminate, including pursuant to Section 38.11 of the Space Lease, or (y)
the occurrence of an Event of Default (as such term is defined in the Space
Lease) and the termination of the Space Lease by Tenant, as landlord thereunder,
Tenant shall have the option to terminate this Lease effective as of the date of
termination of the Space Lease. Upon the termination of this Lease, Tenant's
liability for Rent thereafter accruing
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shall cease. In addition, so long as the Space Lease is in full force and
effect, neither Landlord nor Tenant shall have the right to exercise any option
either may have to terminate this Lease, unless (x) the tenant under the Space
Lease shall have exercised a parallel right to terminate the Space Lease and the
same shall thereafter be terminated, or (y) if there shall be an Event of
Default (as such term as defined in the Space Lease) under the Space Lease and
Tenant, as landlord thereunder, shall have exercised its right to terminate the
Space Lease. In addition, if the subtenant under the Space Lease exercises its
option to purchase Landlord's fee interest or at least a one-third interest
therein, in the Land pursuant to the Purchase Option, dated of even date
herewith, between Landlord and PaineWebber, Inc., and if pursuant to the
Agreement of Limited Partnership of Tenant, Tenant shall elect to terminate this
Lease, this Lease shall automatically terminate simultaneously with the transfer
of title to the fee, or interest therein in the Land.
35.13. If the Subtenant under the Space Lease shall at any time during
the term of the Space Lease, pursuant to Section 38.10 of the Space Lease,
request (x) a remeasurement of the Floor Space and redetermination of Tenant's
Fraction (as such term is defined in the Space Lease) because of a claimed
difference in Floor Space (as such term is defined in the Space Lease) of the
Building, or (y) a redetermination of Operating Expenses (as such term is
defined in the Space Lease) because of either a claimed increase in the floor
space of improvements constructed in the Lincoln Harbor Project or because of a
redetermination of the Floor Space (as such term is defined in the Space Lease),
such Floor Space shall be less than 578,028, then Tenant shall have a parallel
right hereunder, and whatever results shall be obtained thereunder may not be
inconsistent with the results obtained pursuant hereto. It is acknowledged that
for purposes of determining Operating Expenses hereunder and under the Space
Lease, the Project Floor Space was deemed to be 2, 206,457.
35.14. If, in connection with the Mortgage, a lending institution shall
request reasonable modifications of this Lease that do not materially increase
Ten-ant's monetary obligations, materially increase Tenant's
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other obligations, or materially and adversely affect the rights or obligations
of Tenant under this Lease, Tenant shall make such modifications.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
Landlord:
XXXXX MOUNTAIN INDUSTRIES,
INC.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Vice President
Tenant:
XXXXX-PW LIMITED
PARTNERSHIP
BY: Xxxxx Mountain
Industries, Inc.,
General Partner
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------------
Xxxxxxx X. Xxxxx, Vice President
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EXHIBIT "A"
Building
The proposed PaineWebber Operations Building is to be located at
Lincoln Harbor, Weehawken, New Jersey. The 10-11 story, center core building,
of approximately 604,528 gross square feet, and 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 building.
A-1
45
EXHIBIT "B"
Fixed Rent
Years Commencing on
the Fixed Rent
Commencement Date Fixed Rent
----------------- ----------
1 $ 79,108
2- 5 545,692
6-10 996,627
11-15 2,717,511
16-20 4,213,533
21-40 4,272,522
41-74 4,272,522, as increased by 1/2 CPI for
the period from year 21 to year 40
75-98 rent for years 41-74, as increased by
1/2 CPI for the period from year 41 to
year 74
X-0
00
XXXXXXX "X"
Xxxxx Space
As to a building, 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 Building is estimated to be 604,528.
C-1
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EXHIBIT "D"
Property Description
(to include easement for skywalk)
SKYWALK EASEMENT
The precise metes and and bounds description (deed description) of the
easement for the skywalk connecting the Data Processing Center and the
Operations Center, created pursuant to the Reciprocal Easement and Maintenance
Agreement, dated of even date herewith, among Xxxxx, Landlord and Landlord, is
not capable of precise determination until such time as the design of the
structure has been determined by Tenant. The easement shall be as mutually
agreed between the two (2) parties connecting the two (2) structures. The
easement shall be an air rights easement with rights of support at the locations
which will be determined with specificity upon final approval by Tenant of the
design for construction.
Upon such determination, the precise metes and bounds description shall
be prepared and attached to this Lease as part of this Exhibit and incorporated
herein by reference.
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,
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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,
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).
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[GRAPHIC]
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EXHIBIT "E"
Lincoln Harbor Project
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[GRAPHIC]
52
EXHIBIT "F"
MORTGAGE TERMS
PRINCIPAL AMOUNT: $75,000,009
TERM: Minimum 17 years and 6 months from
the Commencement Date (as defined in
the Agreement of Lease, dated of even
date herewith, between Landlord, as
landlord, and Tenant, as tenant, for
the premises known as the Data Pro-
cessing Center)
AMORTIZATION SCHEDULE: 11.979 constant
INTEREST RATE: 11.25% or less per annum
SECURITY: Senior leasehold mortgage, subordi-
nated fee, no personal liability
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EXHIBIT "G"
GROUND LEASE OFFICE PREMISES
OPERATING EXPENSES
The cost and expense (whether or not within the contemplation of the
parties but only to the extent the same are treated, in accordance with GAAP, as
expenses and not capital expenditures) for (a) the Common Open Space, Interior
Walkway, Walkway and Private Roads, Shared Parking Facilities and Utility Trunk
Lines (collectively, the "Areas") (as such terms are defined in the Reciprocal
Construction Operating and Easement Agreement ("RCOEA") draft dated March 5,
1986) and (b) the real estate taxes, if any, in respect of the Areas, and (c)
reasonable legal, accounting and other professional fees; plus four percent (4%)
of the total of expenses under clause (a) above for office administration and
overhead cost and expense. All items shall be stated in accordance with
generally accepted accounting principles. The Operating Expenses attributable to
the Demised Premises are determined by dividing the Floor Space constructed on
the Demised Premises by the municipally approved Floor Space of the Lincoln
Harbor Project (presently 2,206,457 square feet); provided, however that, except
in the event of condemnation the 2,206,457 square feet of Floor Space shall be
presumed to be the minimum Floor Space. For example, the Office Building,
estimated at 604,528 square feet of Floor Space divided by 2,206,457 square feet
of presently approved Floor Space divided by 2,206,457 square feet of presently
approved Floor Space of the Lincoln Harbor Project equals 0.2740 or 27.40%).
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EXHIBIT "H"
Fee Mortgage Amounts
Years Amount
----- ------
1- 3 $15,233,419
4- 6 19,151,510
7- 9 23,698,486
10-12 27,050,892
13-20 29,962,901
21-40 32,210,118
41-74 32,210,118, as increased by 1/2 CPI
for the period from year 21 to year 40
75-98 fee mortgage amount for years
41-74, as increased by 1/2 CPI for
the period from year 41 to year 74
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EXHIBIT "I"
Landlord's Share of Insurance Proceeds
and Condemnation Awards
Years Amount
----- ------
1- 3 $19,041,774
4- 6 23,939,388
7- 9 29,623,108
10-12 33,813,614
13-20 37,453,627
21-40 40,262,649
41-74 40,262,649, as increased by 1/2 CPI
for the period from year 21 to year 40
75-98 Landlord's share of insurance proceeds and condemnation
awards for years 41-74 as increased by 1/2 CPI for the period
from year 41 to year 74
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EXHIBIT "J"
NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS AGREEMENT, dated as of the _____ day of ___________, 19__, between
XXXXX MOUNTAIN INDUSTRIES, INC., a New York corporation, having an office at 000
Xxxxx Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000 ("Ground Lessor"),
and __________, a __________ having an office at __________ ("Subtenant").
WITNESSETH :
WHEREAS, Ground Lessor is the owner of the land (the "Land") described
in Exhibit "A" annexed hereto and made a part hereof; and
WHEREAS, Ground Lessor has entered into a ground lease (the "Ground
Lease") , dated as of _____________, whereby Ground Lessor demised and leased,
as ground lessor, all of the Land to XXXXX-PW LIMITED PARTNERSHIP ("Ground
Lessee") , as lessee; and
WHEREAS, Ground Lessee has entered into an Agreement of Lease, dated as
of the _____ day of March, 1986 (the "Space Lease") , with PAINEWEBBER
INCORPORATED, ("Space Tenant") pursuant to which Ground Lessee leased and
demised to Space Tenant a portion of the space in the building known as the
[PaineWebber 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 "B" annexed hereto and
made a part hereof; and
WHEREAS, the parties hereto desire to provide inter alia for the
non-disturbance of Subtenant by Ground Lessor.
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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, Ground Lessor will not name or join (unless required by law or unless
failure to do so by Ground lessor would result in a waiver by Ground Lessor of
any rights) Subtenant as a party defendant or otherwise in any suit, action or
proceeding brought to enforce any rights granted to Ground Lessor under the
Ground Lease or the Space Lease or to terminate one or both of such leases, and
the Ground Lessor will not terminate the Sublease or take any action to recover
possession of the premises demised to Subtenant or affect or disturb Subtenant's
possession or rights under the Sublease.
2. If Ground Lessor or its designee shall enter into and become
lawfully possessed of the Demised Premises and shall succeed to the rights of
Ground Lessee under the Ground Lease and Space Tenant under the Space Lease by
reason of the termination of the Ground Lease and 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 Ground Lessor 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) Ground Lessor or its designee
shall accept such attornment and recognize Subtenant as the Ground Lessor'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 Ground Lessor 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 Ground Lessor
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
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amendment or modification of the Sublease made without Ground Lessor'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 Ground Lessor at 000
Xxxxx Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000, Attention:
General Counsel, with a copy to Horowitz, Bross, Sinino & Imperial, P.A., 0000
Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxxxxx, Esq., or
at such other address as Ground Lessor 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 Ground Lessor in writing.
5. This Agreement shall be governed by the laws of the State of New
Jersey. If any term of this Agreement or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the remainder
of this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
6. This Agreement may not be discharged or modified orally or in any
manner other than by an agreement in writing specifically referring to this
Agreement and signed by the party or parties to be charged thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXX MOUNTAIN INDUSTRIES, INC.
By: _________________________
[SUBTENANT]
By: _________________________
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Acknowledgement
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EXHIBIT "A"
Land
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EXHIBIT "B"
Demised Premises
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