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Exhibit 10.38
LEASE BETWEEN
XXXXX-PW LIMITED PARTNERSHIP,
as Landlord
and
PAINEWEBBER INCORPORATED
as Tenant
Premises:
Data Processing Center
LINCOLN HARBOR PROJECT
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INDEX
ARTICLE PAGE
------- ----
1. Definitions ............................... 1
2. Demise and Term ........................... 6
3. Rent ...................................... 6
4. Use of Building ........................... 8
5. Preparation of Building ................... 8
6. Tax and Operating Expense Payments ........ 11
7. Common Areas .............................. 14
8. Labor Harmony ............................. 15
9. Subordination ............................. 15
10. Quiet Enjoyment ........................... 18
11. Assignment, Subletting and Mortgaging ..... 18
12. Compliance with Laws ...................... 22
13. Insurance and Indemnity ................... 23
14. Rules and Regulations ..................... 28
15. Alterations ............................... 29
16. Landlord's and Tenant's Property .......... 31
17. Repairs and Maintenance ................... 32
18. Electric Energy ........................... 33
19. Heat, Ventilation & Air Conditioning ...... 33
20. Other Services: Service Interruption ..... 33
21. Access, Changes and Name .................. 33
22. Mechanic's Liens and Other Liens .......... 34
23. Non-Liability and Indemnification ......... 35
24. Damage or Destruction ..................... 36
25. Eminent Domain ............................ 41
26. Surrender ................................. 44
27. Conditions of Limitation .................. 44
28. Re-Entry by Landlord ...................... 46
29. Damages ................................... 47
30. Affirmative Waivers ....................... 50
31. No Waivers ................................ 50
32. Curing Tenant's Defaults .................. 50
33. Broker .................................... 51
34. Notices ................................... 52
35. Estoppel Certificates ..................... 52
36. Arbitration ............................... 53
37. Memorandum of Lease ....................... 53
38. Miscellaneous ............................. 54
39. Extension of Term ......................... 57
40. Determination of Fair Market Value ........ 59
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Exhibits
--------
Exhibit "A" Description of the Building
Exhibit "B" Fixed Rent
Exhibit "C" Floor Space
Exhibit "D" Land
Exhibit "E" Landlord's Work
Exhibit "F" Loan Terms
Exhibit "G" Operating Expenses
Exhibit "H" Plans and Specifications
Exhibit "I" Tenant's Work
Exhibit "J" Lincoln Harbor Project
Exhibit "K-1" Form of Superior Mortgagee Subordina-
tion, Nondisturbance and Attornment
Agreement
Exhibit "K-2" Form of Superior Lessor Subordina-
tion, Nondisturbance and Attornment
Agreement
Exhibit "M" Form of Ground Lessor Nondisturbance
Agreement
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Lease, dated April 14, 1986 between XXXXX-PW LIMITED PARTNERSHIP, a New
Jersey limited partnership, having an office at 000 Xxxxx Xxxxx, Xxxx Xxxxxx Xxx
0000, Xxxxxxxx, Xxx Xxxxxx 00000 and PAINEWEBBER INCORPORATED, a Delaware
corporation having an office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
ARTICLE 1 - DEFINITIONS
1.01 As used in this Lease (including in all Exhibits and any Riders
attached hereto, all of which shall be deemed to be part of this Lease) the
following words and phrases shall have the meanings indicated:
A. Additional Charges: All amounts that become payable by Tenant to
Landlord hereunder other than the Fixed Rent.
B. Architect: Xxxxxxx Xxxx Xxxxx, or as Landlord may designate, subject
to Tenant's approval, which approval shall not be unreasonably withheld or
delayed.
C. Architect's Certificate: The certificate to be issued by Architect
that the Building has been Substantially Completed in accordance with the Plans
and Specifications.
D. Broker: Xxxxxx Xxxxxx & Associates Incorporated.
E. Building: The improvements located on the Land as more particularly
described on the plan attached hereto as Exhibit "A" and made a part hereof.
F. Calendar Year: Any twelve-month period during the term of this Lease
commencing on a January 1.
G. Commencement Date: August 1, 1986, as the same may be extended
pursuant to the provisions hereof.
H. Demised Premises: The Building and the Land, collectively.
I. Expiration Date: The date that is the day before the twenty-fifth
(25th) anniversary of the latest to occur of (i) the Commencement Date, or (ii)
the Commencement Date of the Office Lease (hereinafter defined) (as such term
is defined in the Office Lease), or (iii)
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the Commencement Date (as such term is defined in the Agreement of Lease, dated
of even date herewith, between Xxxxx-PW Hotel Limited Partnership, as landlord,
and Tenant, as tenant, for certain office premises in the Lincoln Harbor Project
(the "Hotel/Office Lease")) of the Hotel/Office Lease, if the later to occur of
such dates is the first day of a month, or the twenty-fifth (25th) anniversary
of the last day of the month in which the later to occur of such dates occurs if
the later to occur of such dates is not the first day of a month. However, if
the Term is extended by the Tenant's effective exercise of any Renewal Option,
the "Expiration Date" shall be changed to the last day of the applicable Renewal
Term. For the purpose of this definition, the earlier termination of this Lease
shall not affect the "Expiration Date."
J. Fixed Rent: As set forth on the Rent Schedule on Exhibit "B" annexed
hereto and made a part hereof, as redetermined pursuant to Section 39.02 hereof.
K. Fixed Rent Commencement Date: The date(s) which is the first
anniversary of the Commencement Date, subject to adjustment as provided in
Section 5.05 hereof.
L. Floor Space: 140,768 and as more particularly set forth on Exhibit
"C" annexed hereto and made a part hereof.
M. Ground Lease: The Agreement of Lease, dated of even date herewith,
between Ground Lessor, as landlord, and Landlord, as tenant, pursuant to which
Ground Lessor, leased the Land to Landlord.
N. Ground Lessor: Xxxxx Mountain Industries, Inc. ("Xxxxx"), its
successors and assigns.
O. 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 Demised
Premises, whether now or hereafter in force.
P. Land: The land described on Exhibit "D" annexed hereto and made a
part hereof.
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Q. Landlord: On the date as of which this Lease is made, shall mean
Xxxxx-PW Limited Partnership, a New Jersey limited partnership, having an
address at 000 Xxxxx Xxxxx, Xxxxxxxx, Xxx Xxxxxx 00000, but thereafter
"Landlord" shall mean only the ground lessee under the Ground Lease or if the
Ground Lease shall have ceased to exist, the fee owner of the Land, or if there
shall exist another Superior Lease or Leases, the tenant under the Superior
Lease immediately prior in estate to this Lease.
R. Landlord's Work: The materials and work to be furnished, installed
and performed by Landlord at its expense in accordance with the provisions of
Exhibit "E" annexed hereto and made a part hereof in accordance with the Plans
and Specifications.
S. 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 Demised Premises.
T. Mortgage: The mortgage creating a lien on the leasehold estate
created by the Ground Lease, to be entered into pursuant to a loan commitment
substantially on the terms set forth in the schedule annexed hereto as Exhibit
"F" and made a part hereof, and any replacement, extension, modification or
amendment thereto.
U. Operating Expenses: An amount equal to the costs and expenses for
the items set forth on Exhibit "G" annexed hereto and made a part hereof.
V. Permitted Uses: General and executive office use, use for data
processing services and all uses incidental thereto.
W. Person: A natural person or persons, a partnership, a corporation,
or any other form of business or legal association or entity.
X. Plans and Specifications: The schematics annexed hereto as Exhibit
"H" and made a part hereof which have been approved by Tenant and all plans and
specifications developed for the restoration of the Building, which shall be
subject to Tenant's prior writ-
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ten approval, which approval shall not be unreasonably withheld or delayed.
AA. Project Common Areas: All areas, spaces and improvements in the
Lincoln Harbor Project (other than those located on the Land) which are made
available from time to time for the common use and benefit of the tenants and
occupants of the Lincoln Harbor Project, including, without limitation,
non-exclusive parking areas, roads, walkways, sidewalks and landscapes and
planted areas, if any.
BB. Real Estate Taxes: The real estate taxes, assessments and special
assessments imposed upon the Demised Premises by any federal, state, municipal
or other governments or governmental bodies or authorities. If at any time
during the Term the methods of taxation prevailing on the date hereof shall be
altered so that in lieu of, or as an addition to or as a substitute for, the
whole or any part of such real estate taxes, assessments and special assessments
now imposed on real estate there shall be levied, assessed or imposed on
Landlord specifically in substitution for any of the foregoing Real Estate Taxes
(a) a tax, assessment, levy, imposition, license fee or charge wholly or
partially as a capital levy or otherwise on the rents received therefrom, or (b)
any other such additional or substitute tax, assessment, levy, imposition or
charge, then all such taxes, assessments, levies, impositions, fees or charges
or the part thereof so measured or based shall be deemed to be included within
the term "Real Estate Taxes" for the purposes hereof, calculated as if
Landlord's only asset were the leasehold estate created by the Ground Lease.
CC. Renewal Options: Shall have the meaning set forth in Section 39.01
hereof.
DD. Renewal Terms: Shall have the meaning set forth in Section 39.01
hereof.
EE. Rent: The Fixed Rent and the Additional Charges.
FF. Substantially Completed: Substantially Completed or terms of
similar import shall mean the completion of construction, and the issuance of a
temporary certificate of occupancy therefore, except for minor details,
designated or punchlists delivered to Tenant, of
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construction, decoration and mechanical adjustment, the non-completion of which
will not materially interfere with the performance of Tenant's Work or Tenant's
use and occupancy of the Demised Premises for Tenant's normal business purposes,
and the completion of which is expected to occur within sixty (60) days after
such Substantial Completion.
GG. Successor Landlord: Shall have the meaning set forth in Section
9.03.
HH. Superior Lease: Any ground or underlying lease of the Land or the
Building.
II. Superior Lessor: The lessor of a Superior Lease or its successor in
interest, at the time referred to.
JJ. Superior Mortgage: Any mortgage, including the Mortgage, which may
hereafter affect the Land, the estate created under the Ground Lease or by any
other Superior Lease, or the Building and all renewals, extensions, supplements,
amendments, modifications, consolidations, and replacements thereof or thereto,
substitutions therefore, and advances made thereunder.
KK. Superior Mortgagee: The mortgagee of a Superior Mortgage at the
time referred to, sometimes herein referred to as a Mortgagee.
LL. Tenant: On the date of which this Lease is made shall mean
PaineWebber Incorporated but thereafter, "Tenant" shall mean only the tenant
under this Lease at the time in question, provided, however, that the foregoing
shall not be deemed to relieve Xxxxx Xxxxxx, Inc. of any liability in the event
of an assignment of its interest in this Lease except in accordance with the
provisions of Section 11.04(b) hereof.
MM. Tenant's Fraction: One hundred percent (100%).
NN. Tenant's Property: Shall have the meaning set forth in Section
16.02.
OO. Tenant's Work: The facilities, materials and work which may be
undertaken by or for the account of Tenant (other than the Landlord's Work) to
equip, deco-
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rate and furnish the Building for Tenant's initial occupancy in accordance with
the provisions of Exhibit "I" annexed hereto and made a part hereof.
PP. 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.
QQ. Unavoidable Delays: A delay arising from or as a result of a
strike, lockout, or labor difficulty, explosion, sabotage, accident, riot or
civil commotion, act of war, fire or other catastrophe, Legal Requirement or an
act of the other party and any cause beyond the reasonable control of that
party, provided that the party asserting such Unavoidable Delay has exercised
its best efforts to minimize such delay. The party asserting such delay,
promptly upon becoming aware of such Unavoidable Delay, shall give written
notice of such Unavoidable Delay to the other party.
ARTICLE 2 - DEMISE AND TERM
2.01 Landlord hereby leases to Tenant, and Tenant hereby hires from
Landlord, the Demised Premises, for the Term. Promptly following the
Commencement Date, the parties hereto shall enter into an agreement in form and
substance reasonably satisfactory to Landlord and Tenant setting forth the
Commencement Date.
ARTICLE 3 - RENT
3.01 Tenant shall pay the Fixed Rent in equal monthly installments in
advance on the first day of each and every calendar month beginning on the Fixed
Rent Commencement Date. If the Fixed Rent Commencement Date occurs on a day
other than the first day of a calendar month, the Fixed Rent for such partial
calendar month shall be prorated on a per diem basis and paid on the Fixed Rent
Commencement Date.
3.02 The Rent shall be paid in lawful money of the United States to
Landlord by wire transfer of immediately available funds to a bank which is a
member of the New York Clearing House Association or by check to such other
place, as Landlord shall designate by notice to Tenant. Tenant shall pay the
Rent promptly when due and without any abatement, deduction or setoff for any
reason
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whatsoever, except as may be expressly provided in this Lease. In case of
payment by check, Tenant shall assume the risk of lateness or failure of
delivery of the mails, and no lateness or failure of the mails will excuse
Tenant from its obligation to have made the payment in question when required
under this Lease.
3.03 No payment by Tenant or receipt or acceptance by Landlord of a
lesser amount than the correct Rent shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment deemed an accord and satisfaction, and
Landlord may accept such check or payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy in this Lease or at law
provided.
3.04 If Tenant is in arrears in payments of Rent, Tenant waives
Tenant's right, if any, to designate the items to which any payments made by
Tenant are to be credited, and Landlord may apply any payments made by Tenant to
such items as Landlord sees fit, irrespective of and notwithstanding any
designation or request by Tenant as to the items to which any such payments
shall be credited.
3.05 If Tenant shall fail to pay any installment of Fixed Rent within
five (5) days or any other item of Rent within twenty (20) days after the date
when such payment is due and Landlord shall have delivered a xxxx for the same
(which delivery may be by invoice and shall not be required to comply with the
requirements for copies of notices specified in Article 34 hereof), then, any
such payment shall bear interest calculated from the due date to the date such
payment is received by Landlord at a rate equal to two (2) percentage points in
excess of the rate of interest publicly announced from time to time by Citibank,
N.A., or its successor, as its "base rate" (or such other term as may be used by
Citibank, N.A., from time to time, for the rate presently referred to as its
"base rate") (the "Late Payment Rate").
3.06 It is the intention of the parties that the Fixed Rent payable
under this Lease shall be net to Landlord, so that this Lease shall yield to
Landlord the Fixed Rent specified herein during the Term of this Lease, and that
all costs, expenses and obligations of every kind and nature whatsoever relating
to the Demised
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Premises shall be paid by Tenant, other than liens placed on the Demised
Premises by Landlord, or claims against Landlord for Landlord's negligence or
default under the terms of this Lease (nothing herein shall be construed as
affecting the provisions of any insurance carried by Landlord, Tenant, subtenant
or assign with respect to the Demised Premises, including fire and hazard
insurance, liability insurance and any other insurance).
ARTICLE 4 - USE OF BUILDING
4.01 Tenant shall use and occupy the Building only for the Permitted
Uses, and any other lawful purpose in keeping with the character of the Lincoln
Harbor Project (as defined on Exhibit "J", annexed hereto and made a part
hereof), and Tenant shall not use or permit or suffer the use of the Building or
any part thereof for any illegal or hazardous purpose.
4.02 On or before the Commencement Date, Landlord shall obtain a
certificate of occupancy for the Building. Each governmental license or permit,
including the certificate of occupancy or its lawful functional equivalent,
required for the proper and lawful conduct of Tenant's business in the Demised
Premises or any part thereof, shall be duly procured by Landlord, and thereafter
Tenant shall maintain such license or permit and submit the same to Landlord for
inspection. Tenant shall at all times comply with the terms and conditions of
each such license or permit. Tenant shall not at any time use or occupy, or
suffer or permit anyone to use or occupy the Building, or do or permit anything
on the Building, in any manner which (a) violates the certificate of occupancy
for the Building; (b) causes injury to the Building, including the structure,
roof or building systems thereof, (c) constitutes a violation of the Legal
Requirements or Insurance Requirements; (d) impairs the character, reputation or
appearance of the Building as a first-class office building; or (e) interferes
with the right of quiet enjoyment of tenants or occupants of the adjacent
premises.
ARTICLE 5 - PREPARATION OF BUILDING
5.01 The Building, including Tenant's Work, shall be Substantially
Completed on or before August 1, 1986, provided that Tenant shall have provided
Landlord with the Plans and Specifications and all plans and
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specifications for each item of Tenant's Work at such time and to permit
Landlord to complete Landlord's Work and Tenant's Work on or before August 1,
1986, in accordance with good construction practices and taking into
consideration the requirements of any "long lead time" items. Landlord agrees to
cooperate to the fullest extent and to use good faith and due diligence in the
design and performance of Landlord's Work and Tenant's Work, provided, however,
that Landlord shall not be obligated to employ labor at overtime rates in
connection with Landlord's Work or Tenant's Work unless Tenant shall reimburse
Landlord therefor. Landlord shall notify Tenant of any anticipated delays
arising by reason of Tenant's action or inaction. Taking possession of the
Building by Tenant shall be evidence that the Building was in good and
satisfactory condition at the time of Tenants' taking of possession except as to
(i) any defects in the Building which were not known or reasonably discoverable
by Tenant by observation or an inspection ("Latent Defects"), (ii) any items of
work performed by Landlord of which Tenant gives Landlord notice within one
hundred twenty (120) days after the Commencement Date, and (iii) portions of the
work performed by Landlord not completed, because under good construction
scheduling practice such work should be done after completion of still
incompleted finishing or other work to be done by or on behalf of Tenant.
Landlord shall complete all such items of work not so completed within sixty
(60) days after the date of Substantial Completion. Landlord, its agents,
servants, employees and contractors shall have the right to enter the Building
to complete or repair any such unfinished items and Latent Defects upon
reasonable prior notice to Tenant. Landlord shall warrant all construction and
equipment delivered in or with Landlord's Work for a period of one (1) year from
the Commencement Date. Landlord shall assign such longer warranties as may be
provided with any item of equipment or material installed in the Building to
Tenant, or, if the same are not assignable, shall assign to Tenant the right to
enforce the same. Landlord covenants that the warranty to be assigned with
respect to the roof shall be for a minimum of ten (10) years from completion of
the roof in accordance with the Plans and Specifications. Landlord shall furnish
Tenant with an assignment of such warranties to the extent that same are given
by subcontractors or materialmen.
5.02 If the Substantial Completion of the
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Landlord's Work or Tenant's Work performed by Landlord shall be delayed, in
spite of Landlord's and Tenant's compliance with the provisions of Section 5.01
hereof, due to (a) any act or omission of Tenant or any of its employees, agents
or contractors including, without limitation, (i) any delays due to changes in
or additions to the Landlord's Work made at the request of Tenant or (ii) any
delays by Tenant in the submission of plans, drawings, specifications or other
information or in approving any working drawings or estimates or in giving any
authorizations or approval(s), or (b) any additional time needed for the
completion of the Landlord's Work by the inclusion in the Landlord's Work of any
extra work required of Landlord by Tenant, then Landlord's Work in connection
with the Building shall be deemed Substantially Complete on the date it would
have been Substantially Complete but for such delay(s). Landlord covenants that
the warranty to be assigned with respect to the roof shall be for a minimum of
ten (10) years from completion of the roof in accordance with the Plans and
Specifications.
5.03 Landlord reserves the right, at any time and from time to time, to
increase, reduce or change the number, type, size, location, nature and use of
any other improvements on the Land including without limitation, the right to
move and/or remove same, provided same shall not block or unreasonably interfere
with Tenant's means of ingress or egress to and from the Building. Landlord
shall insure that in connection with the development of Lincoln Harbor Project,
Ground Lessor shall not deviate materially from the approved site plan without
Tenant's prior consent, which consent shall not be unreasonably withheld or
delayed, and provided further that Tenant may thereupon request a recalculation
of Operating Expenses in accordance with Section 38.10 hereof.
5.04 Tenants' Work is the financial responsibility of Tenant. Landlord
shall provide an allowance ("Tenant's Fund") equal to the product of Twenty-Four
Dollars ($24) and the Floor Space.
5.05 Landlord shall credit Tenant's Fund against the cost of Tenant's
Work as certified by the Architect and verified or objected to by the architect
employed by Tenant in connection with Tenant's Work within fifteen (15) days of
receipt thereof (it being agreed
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that if the architect employed by Tenant in connection with Tenant's Work shall
fail to respond within such fifteen (15) day period, such certification shall be
deemed to have been verified). To the extent the cost of Tenants' Work shall
exceed Tenant's Fund, Tenant shall pay Landlord therefor (together with
Landlord's fee equal to eight percent (8%) of the cost of Tenant's Work) within
fifteen (15) days after Substantial Completion of each line item of Tenant's
Work and receipt of an invoice therefor so certified and verified.
ARTICLE 6 - TAX AND OPERATING EXPENSE PAYMENTS
6.01 On or before the Commencement Date, Landlord shall use its best
efforts to obtain from the City of Weehawken, a separate tax lot and zoning lot
number for the 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 any year during the Term
five (5) business days before any delinquency fee would be imposed upon the
payment of the same. If Landlord shall not have obtained a separate tax lot
number for the Demised Premises on or before the Commencement Date, then,
commencing on the Commencement Date, Tenant shall pay to Landlord an amount
equal to Tenant's Proportionate Share (hereinafter defined) of the Real Estate
Taxes for the tax lot of which the Land forms a part not later than five (5)
business days before any delinquency fee would be imposed upon the payment of
the same, until such time as Landlord shall have obtained such separate tax lot
number; but in no event shall Tenant's payment for Real Estate Taxes be more 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 Tenant's Fraction
of the sum of (x) the tax attributable to the Building and other improvements
located on the Land, as may be separately assessed or as shown on the Tax
Assessor's notes, and (y) 3.60% of the tax attributable to the tax lot of which
the Land forms a portion. Landlord agrees that, throughout the Term, the Demised
Premises will constitute a separate tax lot, separate and apart from other real
property. In determining the amount of Real Estate Taxes for the partial
calendar years in which the Term shall commence or expire, Real Estate Taxes
payable in such calendar year shall be apportioned for that portion of the Tax
Year
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(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 Demised
Premises. In the event of the institution of such proceedings, such proceedings
shall be at Tenant's sole cost and expense and Landlord shall cooperate fully
with Tenant in connection with any such proceedings.
6.02(a) Not later than the Commencement Date, Landlord shall deliver to
Tenant a statement estimating the Operating Expenses for the partial calendar
year commencing on the Commencement Date and Tenant shall pay to Landlord on the
first day of each month during the first partial calendar year of the Term an
amount equal to such estimated Operating Expenses divided by the number of
months or partial months in such partial calendar year. On or before March 1 of
each calendar year or partial calendar year subsequent to the first partial
calendar year during the Term, Landlord shall furnish Tenant with an operating
statement (the "Operating Statement") in reasonable detail setting forth the
actual Operating Expenses for the preceding calendar year. If such Operating
Statement shall show that the actual Operating Expenses for the preceding
calendar year were in excess of those estimated by Landlord and previously paid
by Tenant, then within thirty (30) days after receipt of such actual Operating
Statement, Tenant shall remit to Landlord any such deficiency. If such Operating
Statement shall show that Tenant shall have paid amounts in excess of the actual
Operating Expenses, then Landlord shall remit to Tenant, together with such
Operating Statement, a check in the amount equal to such excess payments .
(b) In addition, in each Operating Statement, Landlord may set
forth any estimated increases in Operating Expenses for the then current
calendar year, provided, however, that in no event shall Landlord's estimate
exceed an amount equal to the sum of the actual
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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 hereto, appropriately
adjusted (the "CPI"). If the CPI ceases to be published, and there is no
successor thereto, such other index as Landlord or Tenant shall agree upon in
writing shall be substituted for the CPI. If Landlord or Tenant are unable to
agree as to such substituted index, such matter shall be submitted to the
American Arbitration Association or any successor organization for determination
in accordance with the regulations and procedures thereof then obtaining for
commercial arbitration. After receipt of such Operating Statement, Tenant shall
pay to Landlord a sum equal to 1/12th of the amount shown on such statement
multiplied by the number of months of the Term in said calendar year preceding
the demand, less the amount (if any) paid by Tenant prior to such demand
pursuant hereto for such months, and thereafter, commencing with the month in
which the demand is made in continuing thereafter for each month of the Term
until the rendition of a new Operating Statement, 1/12th of the amount shown on
such Operating Statement.
6.03 Each such statement given by Landlord pursuant to Section 6.02
shall be conclusive and binding upon Tenant unless within ninety (90) days after
the receipt of the Operating Statement provided for above Tenant shall notify
Landlord that it disputes the correctness of the statement, specifying, to the
extent the information is available, the particular respects in which the
statement is claimed to be incorrect. If such notice is sent, Tenant and its
accountants may examine Landlord's books and records relating to the Operating
Expenses to determine the accuracy of the Operating Statement. If after such
examination, Tenant still disputes such Operating Statement, either party may
refer the decision of the issues raised to one of the so-called "Big-Eight"
public accounting firms, mutually satisfactory to Landlord and Tenant, or if
Landlord and Tenant shall be unable to agree, then the firm to which the dispute
shall be referred shall be chosen as follows: Landlord and Tenant shall each be
permitted to exclude one of such firms from the pool of acceptable firms; the
firm to whom such decision shall be referred shall then
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be chosen by lot from the pool of remaining firms, and if the firm chosen by lot
shall refuse to serve, a substitute firm shall be chosen by lot. The firm so
chosen may, in its discretion, retain one or more consultants to assist in the
resolution of the dispute referred to it. The decision of such accountants,
absent manifest error, shall be conclusively binding upon the parties. The fees
and expenses (including the fees of such consultants) involved in such decisions
shall be borne by the unsuccessful party (and if both parties are partially
successful, the accountants shall apportion the fees and expenses between the
parties based on the degree of success of each party). If such dispute is
ultimately determined in Tenant's favor (either by agreement between Landlord or
Tenant or by decision of the accountants), Landlord promptly after such
determination shall pay to Tenant any amount overpaid by Tenant. Pending the
determination of such dispute by agreement or arbitration as aforesaid, Tenant
shall, within ten (10) days after receipt of such statement, pay the Additional
Charges in accordance with Landlord's statement, without prejudice to Tenant's
position.
ARTICLE 7 - COMMON AREAS
7.01 Subject to the provisions of Section 5.03, Landlord will enforce
the Reciprocal Construction Operation and Easement Agreement, between Ground
Lessor and the Township of Weehawken.
7.02 Tenant and its subtenants and their respective officers,
employees, agents, customers and invitees, shall have the non-exclusive right,
in common with Landlord and all others to whom such right may have been or may
hereafter be granted, but subject to the Rules and Regulations, if any, to use
the common areas. Landlord reserves the right, at any time and from time to
time, to close temporarily all or any portions of the common areas of the
Lincoln Harbor Project (provided that such closure does not unreasonably
interfere with Tenant's business at the Demised Premises, except in cases of
emergency) when in Landlord's reasonable judgment any such closing is necessary
or to (a) permit Xxxxx or its successors or assigns or designees to make repairs
or changes or to effect construction within the Lincoln Harbor project; (b)
prevent the acquisition of public rights in such areas; or (c) to protect or
preserve natural persons or property. Landlord may do such other acts in and to
the
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common areas of the Lincoln Harbor Project as in its reasonable judgment may be
desirable to improve or maintain same, provided, however that Landlord shall not
change the standard of maintenance of the common areas of the Lincoln Harbor
Project without Tenant's approval, which approval shall not be unreasonably
withheld or delayed. In all such events, Landlord's Work shall be commenced and
prosecuted diligently and with as little interference as possible with Tenant's
use of the Demised Premises.
7.03 Tenant agrees that it, any subtenant or licensee and their
respective officers, employees, contractors and agents will park their
automobiles and other vehicles only where and as permitted by Landlord. Tenant
will, if and when so requested by Landlord, furnish Landlord with the license
numbers of any vehicles of Tenant, any subtenant or licensee and their
respective officers, employees and agents. Tenant shall be furnished with the
use of 1 unreserved parking space for every 690 square feet of Floor Space in
the Building, of which spaces, at Tenant's request, five percent (5%) shall be
reserved for exclusive executive parking. Tenant shall have access to all such
spaces twenty-four (24) hours a day, throughout the Term. Landlord shall
maintain or cause to be maintained all such parking in a manner reasonably
satisfactory to Tenant.
ARTICLE 8 - LABOR HARMONY
8.01 Tenant shall not exercise its rights under Article 15 or any other
provision of this Lease in a manner which would violate Landlord's union
contracts or create any work stoppage, picketing labor disruption or dispute or
any interference with the business of Landlord.
ARTICLE 9 - SUBORDINATION
9.01 Provided that (a) a Superior Mortgagee shall execute and deliver
to Tenant an agreement, in recordable form, substantially in the form attached
hereto and made a part hereof as Exhibit "K-1", to the effect that, provided no
event of default has occurred and is continuing hereunder, such Superior
Mortgagee will not name or join Tenant as a party defendant or otherwise in any
suit, action or proceeding to enforce any rights granted to such Superior
Mortgagee under its Superior
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Mortgage, and to the further effect that if there shall be a foreclosure of its
Superior Mortgage, that the Superior Mortgagee will not make Tenant a party
defendant to such foreclosure, evict Tenant, disturb Tenant's possession under
this Lease, or terminate or disturb Tenant's leasehold estate or rights
hereunder, or (b) a Superior Lessor shall execute and deliver to Tenant an
agreement, in recordable form, substantially in the form annexed hereto as
Exhibit "K-2", to the effect that, provided no Event of Default shall have
occurred and is continuing hereunder, such Superior Lessor will not name or join
Tenant as a party defendant or otherwise in any suit, action or proceeding to
enforce any rights granted to such Lessor under its Superior Lease, and to the
further effect that if its Superior Lease shall terminate or be terminated for
any reason, such Superior Lessor will recognize Tenant as the direct tenant of
such Superior Lessor on the same terms and conditions as are contained in this
Lease (any such agreement, or any agreement of similar import from a Superior
Mortgagee or Superior Lessor, as the case may be, being hereinafter called a
"Nondisturbance Agreement"), this Lease shall be subject and subordinate to such
Superior Mortgage or to such Superior Lease in respect of which a Nondisturbance
Agreement shall have been delivered, and to all renewals, extensions,
supplements, amendments, modifications, consolidations and replacements of such
Superior Mortgage or Superior Lease or any substitutions therefor, and advances
made thereunder. The provisions of this Section 9.01 shall be self-operative and
no further instrument of subordination shall be required upon delivery of such
Nondisturbance Agreement, however, in confirmation of such subordination, Tenant
shall promptly execute, acknowledge and deliver an instrument of evidencing such
subordination; and if Tenant fails to execute, acknowledge or deliver any such
instruments within thirty (30) days after request therefor, Tenant hereby
irrevocably constitutes and appoints Landlord as Tenant's attorney-in-fact,
coupled with an interest, to execute and deliver any such instruments for and on
behalf of Tenant.
9.02 If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period of time, to cancel or terminate this
Lease, or to claim a partial or total eviction, Tenant shall not exercise such
right until and unless (a) it has given written notice of such act or omission
to Landlord and each Superior Mortgagee and each Superior Lessor whose name and
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address shall previously have been furnished to Tenant, and (b) such act or
omission shall not have been remedied within thirty (30) days following the
giving of such notice and following the time when such Superior Mortgagee or
Superior Lessor shall have become entitled under such Superior Mortgage or
Superior Lease, as the case may be, to remedy the same (or such longer period as
may be reasonably required if such condition is not susceptible to remedy within
such thirty (30) day period provided such Superior Lessor or Superior Mortgagee
commences and diligently pursues such remedy, which reasonable period shall in
no event be less than the period to which the Landlord would be entitled under
this Lease or otherwise, after similar notice, to effect such remedy).
9.03 If any Superior Lessor or Superior Mortgagee shall succeed to the
rights of Landlord under this Lease, whether through possession or foreclosure
action or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights ("Successor Landlord") and upon such Successor
Landlord's written agreement to accept Tenant's attornment, Tenant shall attorn
to and recognize such Successor Landlord as Tenant's landlord under this Lease
and shall promptly execute and deliver any instrument that such Successor
Landlord may reasonably request to evidence such attornment provided that such
Successor Landlord shall then be entitled to Possession of the Demised Premises
and shall have either agreed to assume the obligations of Landlord hereunder or
shall have entered into a Nondisturbance Agreement with Tenant. Upon such
attornment this Lease shall continue in full force and effect as a direct lease
between the Successor Landlord and Tenant upon all of the terms, conditions and
covenants as are set forth in this Lease except that the Successor Landlord
(unless such Successor Landlord is an affiliated entity of Landlord) shall not
(a) be liable for any previous act or omission of Landlord under this Lease
unless the same shall be continuing; (b) be subject to any offset, not expressly
provided for in this Lease, which theretofore shall have accrued to Tenant
against Landlord; or (c) be bound by any previous modification of this Lease or
by any previous prepayment of more than one month's Fixed Rent or Additional
Charges, unless such modification or prepayment shall have been expressly
approved in writing by the Superior Lessor of the Superior Lease or the
Mortgagee of the Superior Mortgage through or by reason of which the
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Successor Landlord shall have succeeded to the rights of Landlord under this
Lease.
9.04 If any then present or prospective Superior Mortgagee shall
require any modifications of this Lease, Tenant shall promptly execute and
deliver to Landlord such instruments effecting such modification(s) as Landlord
shall request, provided that such modification(s) do not adversely affect in any
material respect any of Tenant's rights under this Lease, materially increase
Tenant's obligations under this Lease or materially diminish Landlord's
obligations under this Lease.
ARTICLE 10 - QUIET ENJOYMENT
10.01 So long as no Event of Default shall have occurred and be
continuing, Tenant shall peaceably and quietly have, hold and enjoy the Demised
Premises without hindrance, ejection or molestation by Landlord or any person
lawfully claiming through or under Landlord, subject, nevertheless, to the
provisions of this Lease and the Ground Lease.
ARTICLE 11 - ASSIGNMENT, SUBLETTING AND MORTGAGING
11.01 Tenant shall have the absolute right, at any time, without
Landlord's consent, to (a) assign or otherwise transfer this Lease, or offer or
advertise to do so, and (b) sublet the Demised Premises or any part thereof, or
offer or advertise to do so, or allow the same to be used, occupied or utilized
by anyone other than Tenant, or (c) mortgage, pledge, encumber or otherwise
hypothecate this Lease in any manner whatsoever.
11.02(a) Notwithstanding anything contained in Section 11.01 hereof,
prior to the earlier to occur of either the fifth anniversary of the
Commencement Date and the date on which the improvements to be constructed in
the Lincoln Harbor Project, as more particularly set forth on Exhibit "K"
annexed hereto and made a part hereof, shall be 90% leased, Tenant may not
assign its interest in this Lease or sublet all or any portion of the Demised
Premises, provided, however, that Tenant shall have the right during such
period, without Landlord's prior consent, to sublet a portion or portions of the
Demised Premises not to exceed 75,000 square feet of floor space in the
aggregate (such amount to be reduced, foot for foot, by an amount equal to the
area sublet by
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Tenant pursuant to a similar provision in any other lease of which Tenant is
tenant in the Lincoln Harbor Project) which amount Tenant agrees is fair and
reasonable.
(b) Notwithstanding the foregoing, however, the provisions of
clause (a) of this Section 11.02 shall not be deemed to apply to (x) any
assignment of Tenant's interest in this Lease to an Affiliate (hereinafter
defined) or to any assignment, whether by operation of law or otherwise, to a
company which is Tenant's successor-in-interest either by merger or
consolidation, or to any assignment to a purchaser of all or substantially all
of Tenant's assets, or (y) any subleasing of all or any portion of the Demised
Premises to an Affiliate unless the summary purpose of any such transaction is
to transfer the estate created by this Lease in violation of Section 11.02(a)
hereof. For purposes hereof, "Affiliate" shall be deemed to mean a corporation
or other entity which shall (1) control, (2) be under the control of, or (3)
shall be under common control with, Tenant (the term "control" as used herein
shall be deemed to mean ownership of more than 5% of the voting stock of a
corporation on a fully diluted basis, if such corporation is publicly traded, or
more than 50% of the voting stock of a privately held corporation, or other
majority equity and control interest, if not a corporation.
11.03 If this Lease is assigned, Landlord may collect rent from the
assignee. If the Demised Premises or any part thereof are sublet or used or
occupied by anybody other than Tenant, Landlord may, after default by Tenant,
and expiration of Tenant's time to cure such default, collect rent from the
subtenant or occupant. In either event, Landlord may apply the net amount
collected to the Rent, but no such assignment, subletting, occupancy or
collection shall be deemed a waiver of any of the provisions of this Article 11,
or the acceptance of the assignee or subtenant as occupant or a release of
Tenant from the performance by Tenant of Tenant's obligations under this Lease.
11.04(a) Any assignment or transfer shall be made only if, and shall
not be effective until, the assignee shall execute, acknowledge and deliver to
Landlord an agreement in form and substance satisfactory to Landlord whereby the
assignee shall assume Tenant's obligations under this Lease and whereby the
assignee shall agree that all of the provisions in this Article 11
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shall, notwithstanding such assignment or transfer, continue to be binding upon
it in respect to all future assignments and transfers. Notwithstanding any
assignment or transfer, whether or not in violation of the provisions of this
Lease, and notwithstanding the acceptance of Rent by Landlord from an assignee,
transferee, or any other party, the original Tenant and any other person(s) who
at any time was or were Tenant shall remain fully liable for the payment of the
Rent and for Tenant's other obligations under this Lease unless, in the event of
such permitted assignment or transfer, Landlord releases Tenant from its
obligations under this Lease as provided in Section 11.04(b) of this Lease.
(b) In the event Tenant assigns its interest in this Lease,
Landlord agrees, subject to the prior consent of any Superior Mortgagee, to
release Tenant from its obligations under this Lease provided all of the
following conditions are met:
(i) Such permitted assignee has a net worth at least
equal to $250,000,000, as the same shall be increased or decreased on each
anniversary of the Commencement Date commencing on the fifth (5th)
anniversary of the Commencement Date by an amount equal to the product of
$250,000,000 and seventy-five percent (75%) of the percentage increase or
decrease in the CPI for the immediately preceding twelve (12) month period;
provided, however, that in no event shall the same be decreased to be less
than $250,000,000; and
(ii) Such permitted assignee is a well known business
entity of high repute having a standing in the business community, in
Landlord's reasonable judgment, at least equivalent to Xxxxx Xxxxxx, Inc.;
and
(iii) Such permitted assignee executes an agreement in
substance and form reasonably satisfactory to Landlord whereby such
assignee assumes all of Tenant's obligations under this Lease.
11.05 Promptly after request therefor by Tenant, Landlord shall enter
into a Nondisturbance Agreement with any subtenant of Tenant occupying one or
more full
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floors of the Demised Premises, substantially in the form annexed hereto as
Exhibit "L".
11.06 The liability of the original named Tenant and any other
Person(s) who at any time was or were Tenant for Tenant's obligations under this
Lease shall not be discharged, released or impaired by any agreement or
stipulation made by Landlord extending the time of, or modifying any of the
obligations of, this Lease, or by any waiver or failure of Landlord to enforce
any of the obligations of this Lease.
11.07 The listing of any name other than that of Tenant, whether on the
doors of the Building or otherwise, shall not operate to vest any right or
interest in this Lease or in the Demised Premises, nor shall it be deemed to be
the consent of Landlord to any assignment or transfer of this Lease or to any
sublease of the Demised Premises or to the use or occupancy thereof by others.
11.08 Without limiting any of the provisions of Article 27, if pursuant
to the Federal Bankruptcy Code (or any similar law hereafter enacted having the
same general purpose), Tenant assigns this Lease, adequate assurance of future
performance by an assignee expressly permitted under such Code shall be deemed
to mean the deposit of cash security in an amount equal to the sum of one (1)
year's Fixed Rent plus an amount equal to the Additional Charges for the
Calendar Year preceding the year in which such assignment is intended to become
effective, which deposit shall be held by Landlord for the balance of the Term,
without interest, as security for the full performance of all of Tenant's
obligations under this Lease, that if Tenant defaults in the full and prompt
payment and performance of any of its obligations under this Lease, including,
without limitation, the payment of Rent, Landlord may use, apply or retain the
whole or any part of the security so deposited to the extent required for the
payment of any Rent or any other sums as to which such tenant is in default or
for any sum which Landlord may expend or may be required to expend by reason of
Tenant's default in respect of any of such Tenant's obligations under this
Lease, including, without limitation, any damages or deficiency in the reletting
of the Demised Premises, whether such damages or deficiency accrue before or
after summary proceedings or other re-entry by Landlord. If Landlord shall so
xxx, apply or retain the whole or any part of the security, Tenant
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shall upon demand immediately deposit with Landlord a sum equal to the amount so
used, applied and retained, as security as aforesaid. If Tenant shall fully and
faithfully pay and perform all of Tenant's obligations under this Lease, the
security or any balance thereof to which such tenant is entitled shall be
returned or paid over to such tenant after the date on which this Lease shall
expire or sooner end or terminate, and after delivery to Landlord of entire
Possession of the Demised Premises. In the event of any sale or leasing of the
Building or leasing of Demised Premises, Landlord shall have the right to
transfer the security to which Tenant is entitled to the vendee or lessee and
Landlord shall thereupon be released by such tenant from all liability for the
return or payment thereof; Tenant shall look solely to the new landlord for the
return or payment of the same; and the provisions hereof shall apply to every
transfer or assignment made of the same to a new landlord. Tenant shall not
assign or encumber or attempt to assign or encumber the monies deposited herein
as security, and neither Landlord nor its successors or assigns shall be bound
by any such assignment, encumbrance, attempted assignment or attempted
encumbrance.
ARTICLE 12 - COMPLIANCE WITH LAWS
12.01 Tenant shall comply with all Legal Requirements which shall, in
respect of the Demised Premises or the use and occupation thereof, or the
abatement of any nuisance in, on or about the Demised Premises, impose any
violation, order or duty on Landlord or Tenant; and Tenant shall pay all the
cost, expenses, fines, penalties and damages which may be imposed upon Landlord
or any Superior Lessor by reason of or arising out of Tenant's failure to fully
and promptly comply with and observe the provisions of this Section 12.01.
However, Tenant need not comply with any such law or requirement of any public
authority so long as Tenant shall be contesting the validity thereof, or the
applicability thereof to the Demised Premises, in accordance with Section 12.02.
Landlord shall be in full compliance with any Legal Requirements applicable to
Landlord's Work on or before the Commencement Date, and the obligation of Tenant
to comply with any Legal Requirement as set forth immediately above shall not
arise with respect to any such Legal Requirement with which Landlord is not in
compliance as of the Commencement Date, until such time as non-compliance shall
have been cured by Landlord.
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12.02 Tenant may contest, by appropriate proceedings prosecuted
diligently and in good faith, the validity, or applicability to the Demised
Premises, of any Legal Requirement, provided that (a) Landlord shall not be
subject to criminal penalty or to prosecution for a crime and neither the
Demised Premises nor any part thereof shall be subject to being condemned or
vacated, by reason of non-compliance or otherwise by reason of such contest; (b)
before the commencement of such contest, Tenant shall furnish to Landlord either
(i) the bond of a surety company satisfactory to Landlord, which bond shall be,
as to its provisions and form, satisfactory to Landlord, and shall be in an
amount at least equal to 125% of the cost of such compliance (as estimated by a
reputable contractor designated by Landlord) and shall indemnify Landlord
against the cost thereof and against all liability for damages, interest,
penalties and expenses (including reasonable attorneys' fees and expenses),
resulting from or incurred in connection with such contest or noncompliance, or
(ii) other security in place of such bond satisfactory to Landlord; (c) Tenant
shall keep Landlord advised as to the status of such proceedings.
Notwithstanding anything herein to the contrary, the provisions of (b) above
shall not apply during such time as Xxxxx Xxxxxx, Inc. remains obligated for
Tenant's obligations under this Lease. Without limiting the application of the
above, Landlord shall be deemed subject to prosecution for a crime if Landlord,
or its managing agent, or any officer, director, partner, shareholder or
employee of Landlord or its managing agent, as an individual, is charged with a
crime of any kind or degree whatsoever, whether by service of a summons or
otherwise, unless such charge is withdrawn before Landlord or its managing
agent, or such officer, director, partner, shareholder or employee of Landlord
or its managing agent (as the case may be) is required to plead or answer
thereto.
ARTICLE 13 - INSURANCE AND INDEMNITY
13.01(a) Tenant shall at all times during the term hereof maintain or
cause to be maintained business interruption insurance with a rent insurance
endorsement payable to Landlord, covering a period of at least twelve (12)
months. Landlord shall obtain and keep in full force and effect insurance
against loss or damage by fire and other casualty to the Building, including any
item of Tenant's Work, as may be insurable under then available
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standard forms of "all risk" insurance policies, in an amount equal to 100% of
the replacement value thereof (and Tenant shall pay Tenant's Fraction of the
cost thereof in accordance with Exhibit "H" annexed hereto and made a part
hereof). Tenant shall notify Landlord of the completion of any Tenant's Work and
of the costs thereof, and shall maintain adequate records with respect to such
Tenant's Work to facilitate the adjustment of any insurance claims with respect
thereto. Tenant shall cooperate with Landlord and Landlord's insurance companies
in the adjustment of any claims for any damage to the Building or to such
Tenant's Work. On or prior to the Commencement Date, Landlord shall deliver to
Tenant appropriate certificates of insurance, including evidence of waivers of
subrogation required pursuant to Section 13.05 hereof, required to be carried by
Landlord pursuant to this Article 13. Evidence of each renewal or replacement of
a policy shall be so delivered by Landlord to Tenant at least ten days prior to
the expiration of such policy. Any certificates so deposited by Landlord with
Tenant shall indicate whether the insurance required by this Article 13 is
affected under a blanket insurance policy and, if so, shall certify to the
aggregate amount of such blanket insurance policy and to the fact that there are
no sublimits which derogate from the coverage required by this Article.
13.02 Tenant also shall maintain the following insurance: (a)
comprehensive general public liability insurance in respect of the Demised
Premises and the conduct and operation of business therein, with Landlord as an
additional named insured, and at Landlord's request with any Superior Lessors as
additional named insured(s), with limits of not less than $3,000,000 for bodily
injury or death to any one person and $5,000,000 for bodily injury or death to
any number of persons in any one occurrence, and $500,000 for property damage,
including water damage and sprinkler leakage legal liability, and (b) any other
insurance required for compliance with the Insurance Requirements. Tenant shall
also obtain and keep in full force and effect a policy of insurance against loss
or damage by fire, and such other risks and hazards (including burglary and
theft) as are insurable under then available standard forms of "all risk"
insurance policies, to Tenant's Property, for one hundred percent (100%) of the
replacement value thereof or for such lesser amount as will avoid co-insurance
(including an "agreed amount" endorsement), protecting Landlord, Land-
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lord's agents, any Superior Mortgagee, any Superior Lessor and Tenant as
insured, as their interest may appear; provided, however, that no such
additional insured party shall be entitled to adjust, or participate in the
adjustment of, any loss or receive any proceeds under any such insurance policy,
and the policies may so provide. Tenant shall deliver to Landlord and any
additional named insured(s) certificates for such fully paid-for policies at
least ten (10) days before the Commencement Date. Tenant shall procure and pay
for renewals of such insurance from time to time before the expiration thereof,
and Tenant shall deliver to Landlord and any additional insured(s) certificates
therefor at least 30 days before the expiration of any existing policy. All such
policies shall be issued by companies of recognized responsibility licensed to
do business in New Jersey, and all such policies shall contain a provision
whereby the same cannot be cancelled unless Landlord and any additional
insured(s) are given at least 20 days' prior written notice of such
cancellation.
13.03 Tenant shall not do, permit or suffer to be done any act, matter,
thing or failure to act in respect of the Demised Premises or use or occupy the
Demised Premises or conduct or operate Tenant's business in any manner
objectionable to any insurance company or companies whereby the fire insurance
or any other insurance then in effect in respect to the Demised Premises or any
part thereof shall become void or suspended or whereby any premiums in respect
of insurance maintained by Landlord shall be higher than those which would
normally have been in effect for the occupancy contemplated under the Permitted
Uses. In case of a breach of the provisions of this Section 13.03, in addition
to all other rights and remedies of Landlord hereunder, Tenant shall (a)
indemnify Landlord and the Superior Lessors and hold Landlord and the Superior
Lessors harmless from and against any loss which would have been covered by
insurance which shall have become void or suspended because of such breach by
Tenant and (b) pay to Landlord any and all increases of premiums on any
insurance, including, without limitation, rent insurance, resulting from any
such breach.
13.04(a) Tenant shall indemnify and hold harmless Landlord and all
Superior Lessors and its and their respective partners, joint venturers,
directors, officers, agents, servants and employees from and against any
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and all claims arising from or in connection with (a) Tenant's conduct or
management of the Demised Premises or of any business therein, or any work or
thing whatsoever done, or any condition created (other than by Landlord) in the
Demised Premises during the Term or during the period of time, if any, prior to
the Commencement Date that Tenant may have been given access to the Demised
Premises, except to the extent due to Landlord's wrongful acts or gross
negligence; (b) any act, omission or negligence of Tenant or any of its
subtenants or licensees or its or their partners, joint ventures, directors,
officers, agent, employees or contractors; (c) any accident, injury or damage
whatever (except to the extent caused by Landlord's acts or 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 obligations under this Lease; together with all costs,
expenses and liabilities incurred in or in connection with each such claim or
action or proceeding brought thereon, including, without limitation, all
attorneys ' fees and expenses. In case any action or proceeding is brought
against Landlord and/or any Superior Lessor and/- or its or their partners,
joint venturers, directors, officers, agents and/or employees by reason of any
such claim, Tenant, upon notice from Landlord or such Superior Lessor, shall
resist and defend such action or proceeding by counsel reasonably satisfactory
to Landlord. Counsel appointed by the insurance company insuring the Building
shall be deemed satisfactory to Landlord.
(b) Landlord shall indemnify and hold harmless Tenant and its
directors, officers, agents, servants and employees from and against any and all
claims arising from or in connection with (a) Landlord's conduct or management
of the Building or any business therein, or other work or thing whatsoever done,
or any condition created (other than by Tenant), in the Building during the Term
or during the period of time, if any, prior to the Commencement Date that Tenant
may have been given access to the Demised Premises, to the extent due to
Landlord's wrongful acts or gross negligence; (b) any act, omission or
negligence of Landlord or its agents or their partners, joint ventures,
directors, officers, agents, employees or contractors; (c) any accident, injury
or damage whatever (except to the extent caused by Tenant's acts or negligence)
occurring in the Building
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and (d) any breach or default by Landlord in the prompt payment and performance
of Landlord's obligations under this Lease; together with all costs, expenses
and liabilities incurred in or in connection with each such claim or action or
proceeding brought thereon, including, without limitation, all attorneys' fees
and expenses. In case any action or proceeding is brought against Tenant and/or
its directors, officers, agents and/or employees by reason of any such claim,
Landlord, upon notice from Tenant, shall resist and defend such action or
proceeding by counsel reasonably satisfactory to Tenant. Counsel appointed by
the insurance company insuring the Building shall be deemed satisfactory to
Tenant.
13.05 The parties hereto shall procure an appropriate clause in, or
endorsement on, any fire or extended coverage insurance covering the Building
and personal property, fixtures and equipment located thereon or therein,
pursuant to which the insurance companies waive subrogation or consent to a
waiver of right of recovery, or an express agreement that the applicable
insurance policy.shall not be invalidated if the insured waives, or has waived
before the casualty, the right of recovery, or an express agreement that the
applicable insurance policy shall not be invalidated if the insured waives, or
has waived before the casualty, the right of recovery against any party
responsible for a casualty covered by such policy, and having obtained such
clauses or endorsements or agreements of waiver of subrogation or consent to a
waiver of right of recovery, the parties agree that they will not make. any
claim against or seek to recover from the other or anyone acting or claiming
under or through the other or any of their respective officers, directors,
shareholders, partners, employees, agents or contractors, for any loss or damage
to its property or the property of others resulting from fire or other hazards
covered by such fire and extended coverage insurance, provided, however, that
the release, discharge, exoneration and covenant not to xxx herein contained
shall be limited by and coextensive with the terms and provisions of the waiver
of subrogation clause or endorsements, or clauses or endorsements consenting to
a waiver of right or recovery. If the payment of an additional premium is
required for the inclusion of such waiver of subrogation provision, each party
shall advise the other of the amount of any such additional premiums and the
other party at its own election may, but shall not be obligated to, pay the
same. If such other party
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shall not elect to pay such additional premium or if such clause may not be
obtained, even with the payment of an additional premium, then (in either event)
such party shall so notify the first party and the first party's agreement not
to make any claim or seek recover shall not be effective thereafter. If either
party shall be unable to obtain the inclusion of such clause even with the
payment of an additional premium, then such party shall attempt to name the
other party as an additional insured (but not a loss payee) under the policy. If
the payment of an additional premium is required for naming the other party as
an additional insured (but not a loss payee), each party shall advise the other
of the amount of any such additional premium and the other party at its own
election may, but shall not be obligated to, pay the same. If such other party
shall not elect to pay such additional premium, the other party at its own
election may, but shall not be obligated to, pay the same. If such other party
shall not elect to pay such additional premium or if it shall not be possible to
have the other party named as an additional insured (but not loss payee), even
with the payment of an additional premium, then (in either event) such party
shall so notify the first party and the first party's agreement to name the
other party as an additional insured shall be satisfied. If either party shall
fail to have fire or extended coverage insurance in effect as required pursuant
to this Article 13, the agreement not to make any claim or seek recovery
contained in the first sentence of this Section 13.05 shall be in full force and
effect to the same extent as if such required insurance (containing the required
waiver of subrogation clause, endorsement or agreement) were in effect.
ARTICLE 14 - RULES AND REGULATIONS
14.01 Tenant and its employees and agents shall faithfully observe and
comply with the Rules and Regulations and such reasonable changes therein
(whether by modification, elimination or addition) as Landlord at any time or
times hereafter may make and communicate to Tenant, which in Landlord's
reasonable judgment, shall be necessary for the reputation, safety, care or
appearance of the Demised Premises, or the preservation of good order therein,
or the operation or maintenance of the Building or its equipment and fixtures,
or the common areas of the Lincoln Harbor Project, and which do not unreasonably
affect the conduct of Tenant's business in
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the Building; provided, however, that in case of any conflict or inconsistency
between the provisions of this Lease and any of the Rules and Regulations, the
provisions of this Lease shall control. Nothing in this Lease contained shall be
construed to impose upon Landlord any duty or obligation to enforce the Rules
and Regulations against any other tenant or any employees or agents of any other
Tenant, and Landlord shall not be liable to Tenant for violation of the Rules
and Regulations by any other tenant or its employees, agents, invitees or
licensees, provided, however, Landlord shall not enforce any Rule or Regulation
against Tenant which Landlord shall not then be enforcing against all other
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.
ARTICLE 15 - ALTERATIONS
15.01 Tenant shall not make any structural alterations or additions to
the Building which would adversely affect the structural integrity of the
Building, or change the exterior color or architectural treatment of the
Building, or which would otherwise impair the value of the Building without on
each occasion first obtaining the prior written consent of Landlord, it being
acknowledged that Landlord's consent shall not be required for any other
alterations or additions. Tenant shall submit to Landlord plans and
specifications for such work at the time landlord's consent is sought. Tenant
shall pay to Landlord upon demand the reasonable cost and expense of Landlord
for any action of Landlord in excess of (a) reviewing said plans and
specifications and (b) inspecting the alterations to determine whether the same
are being performed in accordance with the approved plans and specifications and
all Legal Requirements and Insurance Requirements including without limitation,
the fees of any architect or engineer employed by Landlord for such purpose.
Before proceeding with any permitted alteration which will cost more than
$350,000 (exclusive of the costs of decorating work and items constituting
Tenant's Property), as estimated by a reputable contrac-
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tor designated by Landlord, Tenant shall obtain and deliver to Landlord either
(i) a performance bond and a labor and materials payment bond (issued by a
corporate surety licensed to do business in New Jersey), each in an amount equal
to 125% of such estimated cost and in form satisfactory to Landlord, or (ii)
such other security as shall be satisfactory to Landlord. Notwithstanding
anything herein to the contrary, the provisions of the immediately preceding
sentence shall not apply during such time as Xxxxx Xxxxxx, Inc. remains liable
for Tenant's obligations under this Lease. Tenant shall fully and promptly
comply with and observe the Rules and Regulations then in force in respect of
the making of such alterations. Any review or approval by Landlord of any plans
and/or specifications with respect to any such alterations is solely for
Landlord's benefit, and without any representation or warranty whatsoever to
Tenant in respect to the adequacy, correctness or efficiency thereof or
otherwise.
15.02 Tenant shall obtain all necessary governmental permits and
certificates for the commencement and prosecution of alterations and for final
approval thereof upon completion, and shall cause alterations to be performed in
compliance therewith all applicable Legal Requirements and Insurance
Requirements. Alterations shall be diligently performed in a good and
workmanlike manner, using new materials and equipment at least equal in quality
and class to the better of the original installations of the Building.
Alterations requiring Landlord's consent shall be performed by contractors
licensed in the State of New Jersey (if applicable), whose use shall not
invalidate any Warranties applicable to the Building or its systems, and which
contractors are either employed in connection with the performance of Landlord's
Work and Tenant's Work or are reputable and skilled in their respective trades.
Alterations shall be made in such a manner as not to unreasonably interfere with
or delay and as not to impose any additional expense upon Landlord in the
maintenance, repair or operation of the Building; and if any such additional
expense shall be incurred by Landlord as a result of Tenant's making of any
alterations, Tenant shall pay any such additional expense upon demand.
Throughout the making of alterations, Tenant shall carry, or cause to be
carried, workmen's compensation insurance in statutory limits and general
liability insurance, with completed operation endorsement, for any occurrence in
or about the Building,
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under which Landlord and its managing agent and any Superior Lessor whose name
and address shall previously have been furnished to Tenant shall be named as
parties insured, in such limits as landlord may reasonably require, with issuers
reasonably satisfactory to Landlord. Tenant shall furnish Landlord with
reasonably satisfactory evidence that such insurance is in effect at or before
the commencement of alterations and, on request, at reasonable intervals
thereafter during the making of alterations.
ARTICLE 16 - LANDLORD'S AND TENANT'S PROPERTY
16.01 All fixtures, equipment, improvements and appurtenances attached
to or built into the Building at the commencement of or during the Term at the
expense of Tenant (exclusive of the items to which Tenant's Fund has been
applied) shall be deemed to be the property of Tenant.
16.02 All movable partitions, business and trade fixtures, machinery
and equipment, communications equipment and office equipment, whether or not
attached to or built into the Building, which are installed in the Building by
or for the account of Tenant and can be removed without structural damage to the
Building and all furniture, furnishings, and other personal property owned by
Tenant and located in the Building (collectively, "Tenant's Property") shall be
and shall remain the property of Tenant and may be removed by Tenant at any time
during the Term; provided that if any of the Tenant's Property is removed,
Tenant shall repair or pay the cost of repairing any damage to the Building
resulting from the installation and/or removal thereof. Any equipment or other
property for which Landlord shall have granted any allowance or credit to Tenant
shall not be deemed to have been installed by or for the account of Tenant
without expense to Landlord, shall not be considered as the Tenant's Property
and shall be deemed the property of Landlord.
16.03 At or before the Expiration Date or the date of any earlier
termination of this Lease, or within fifteen (15) days after such an earlier
termination date, Tenant shall surrender the Demised Premises broom clean,
vacant and in good condition, reasonable wear and tear and damage by casualty,
excepted. Tenant may remove any alterations and fixtures and shall remove any
alterations
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or fixtures which are not usual or customary for general office use and which
would materially impair the reletting of the Demised Premises for general office
use. Tenant shall repair any structural damage to the Building resulting from
any installation and/or removal of the Tenant's Property. Any items of the
Tenant's Property which shall remain at the Demised Premises after the
Expiration Date or after a period of fifteen (15) days following an earlier
termination date, may, at the option of Landlord, be deemed to have been
abandoned and in such case such items may be retained by Landlord as its
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine at Tenant's Expense.
ARTICLE 17 - REPAIRS AND MAINTENANCE
17.01 Tenant shall, throughout the Term, take good care of the Demised
Premises, the fixtures and appurtenances therein.
Tenant shall be responsible for the cost and expense of all repairs
(including replacement, if required), ordinary and extraordinary, structural and
non-structural, in and to the Building (including the Building systems) and for
the ordinary maintenance including, but not limited to, repairs the need for
which arises out of (a) the performance or existence of the Tenant's Work or
alterations, (b) the installation, use or operation of the Tenant's Property in
the Building, (c) the moving of the Tenant's Property in or out of the Building,
or (d) the act, omission, misuse or neglect of Tenant or any of its subtenants
or its or their employees, agents, contractors, or invitees. Tenant shall
promptly replace all scratched, damaged or broken doors and glass in or about
the Building and shall be responsible for all repairs, maintenance and
replacement of wall and floor coverings in the Building and for the repair and
maintenance of all sanitary and electrical fixtures and equipment therein.
Tenant shall promptly make all repairs in or to the Building for which Tenant is
responsible, provided that any repairs to the mechanical, electrical, plumbing,
heating, ventilating or air conditioning systems of the Building shall only be
made by contractors approved by Landlord in accordance with Section 15.02
hereof.
17.02 Except as otherwise expressly provided in this Lease, Landlord
shall have no liability to Ten-
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ant, 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 permitted by this Lease, or required by
law, to make in or to any portion of the Building.
ARTICLE 18 - ELECTRIC ENERGY
18.01 Tenant shall purchase the electric energy required by it in the
Building at its own expense on a direct-metered basis from the public utility
servicing the Building. Landlord shall not be liable for any failure, inadequacy
or defect in the character or supply of electric current furnished to the
Building except for actual damage suffered by Tenant by reason of any such
failure, inadequacy or defect caused by the negligence or willful acts of
Landlord.
18.02 Tenant's use of electric energy in the Building shall not at any
time exceed the capacity of any of the electrical conductors and equipment in or
otherwise serving the Building.
ARTICLE 19 - HEAT, VENTILATION AND AIR CONDITIONING
19.01 Tenant shall, at Tenant's sole cost and expense, subject to any
guaranties or warranties made by Ground Lessor pursuant to the Guarantee
maintain and operate the heating, ventilating and air-conditioning systems
("HVAC") serving the Demised Premises, and shall furnish HVAC in the Demised
Premises as Tenant may require.
ARTICLE 20 - OTHER SERVICES: SERVICE INTERRUPTION
20.01 Landlord shall, at Tenants' sole cost and expense, cause water to
be supplied to the Demised Premises and Tenant shall pay for such as shown on
the public utility meters therefore.
ARTICLE 21 - ACCESS, CHANGES AND NAME
21.01 Landlord and its agents shall have the right, with as little
interference of Tenant's business as possible, to enter and/or pass through the
Demised Premises upon reasonable notice and at reasonable times
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(a) to examine the Demised Premises and to show them to actual and prospective
Superior Lessors, Superior Mortgagees, or prospective purchasers of the Demised
Premises, and (b) to make such repairs, alterations, additions and improvements
in or to the Building and/or its facilities and equipment as Landlord is
required or desires to make. Landlord shall be allowed to take all materials
into and upon the Demised Premises that may be required in connection therewith,
without any liability to Tenant and without any reduction of Tenant's
obligations hereunder. The right of Landlord and Landlord's agent to enter into
the Demised Premises shall not include any area of the Demised Premises
designated on written notice to Landlord as a "security area" unless a
representative of Tenant shall be present, which representative Tenant agrees to
have present at the Demised Premises upon reasonable advance oral notice by
Landlord, provided, however, that in the event of any emergency, Landlord shall
have the right to enter into any such security area without being accompanied by
such representative of Tenant but shall be accompanied by a police officer,
fireman or other public official. During the period of eighteen (18) months
prior to the Expiration Date, Landlord and its agents may exhibit the Demised
Premises to prospective tenants.
21.02 During such time as Xxxxx Xxxxxx, Inc. or an affiliated entity is
the Tenant, Tenant may name the Building, any name associated with Xxxxx Xxxxxx,
Inc. or its Affiliates, as the same may change from time to time as the result
of mergers or consolidations or otherwise.
ARTICLE 22 - MECHANICS' LIENS AND OTHER LIENS
22.01 Nothing contained in this Lease shall be deemed, construed or
interpreted to imply any consent or agreement on the part of Landlord to subject
Landlord's interest or estate to any liability under the mechanic's or other
lien law. If any mechanic's or other lien or any notice of intention to file a
lien is filed against the Land, or any part thereof, for any work, labor,
service or materials claimed to have been performed or furnished for or on
behalf of Tenant or anyone holding any part of the Demised Premises through or
under Tenant, Tenant shall cause the same to be cancelled and discharged of
record by payment, bond or order of a court of
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competent jurisdiction within fifteen (15) days after notice by Landlord to
Tenant.
ARTICLE 23 - NON-LIABILITY AND INDEMNIFICATION
23.01 In addition to the provisions of Article 13 of this Lease, except
as set forth in the Guarantees, dated of even date herewith, by Ground Lessor
for the benefit of Tenant (collectively, the "Guarantees"), neither Landlord nor
any partner, joint venturer, director, officer, agent, servant or employee of
Landlord shall be liable to Tenant for any loss, injury or damage to Tenant or
to any other Person, or to its or their property, irrespective of the cause of
such injury, damage or loss, except to the extent caused by or resulting from
the negligence of Landlord, its agents, servants or employees in the operating
or maintenance of the Demised Premises. Further, neither Landlord nor any
partner, joint venturer, director, officer, agent, servant or employee of
Landlord shall be liable (a) for any such damage caused by other tenants or
Persons in, upon or about the 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.
23.02 Notwithstanding any provision to the contrary, except as set
forth in the Guarantees, Tenant shall look solely to the estate and property of
Landlord in and to the Demised Premises (or the proceeds received by Landlord on
a sale of such estate and property net of bona fide liens and expenses). In the
event of any claim against Landlord arising out of or in connection with this
Lease, the relationship of Landlord and Tenant or Tenant's use of the Demised
Premises or the Project Common Areas, Tenant, (and its successor and assigns)
agrees that the liability of Landlord arising out of or in connection with this
Lease, the relationship of Landlord and Tenant or Tenant's use of the Demised
Premises or the Project Common Areas shall be limited to such estate and
property of Landlord (or sale proceeds net of bona fide liens and expenses). No
other properties or assets of Landlord or any partner, joint venturer, director,
officer, agent, servant or employee of Landlord shall be subject to levy,
execution or other enforcement procedures for the satisfaction of any judgment
(or other
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judicial process) or for the satisfaction of any other remedy of Tenant arising
out of, or in connection with, this Lease, the relationship of Landlord and
Tenant or Tenant's use of the Demised Premises or the Project Common Areas. If
Tenant shall acquire a lien on or interest in any other properties or assets by
judgment or otherwise, Tenant shall promptly release such lien on or interest in
such other properties and assets by executing, acknowledging and delivering to
Landlord an instrument to that effect prepared by Landlord's attorneys.
ARTICLE 24 - DAMAGE OR DESTRUCTION
24.01 If the Building shall be partially or totally damaged or
destroyed by fire or other casualty (and if this Lease shall not be terminated
as in this Article 24 hereinafter provided), Landlord shall repair the damage
and restore and rebuild the Building (except for the Tenant's Property) in
accordance with the Plans and Specifications, together with such changes as may
be approved by Tenant, with reasonable dispatch after notice to it of the damage
or destruction and the collection of the insurance proceeds attributable to such
damage.
24.02 Subject to the provisions of Section 24.05, if all or part of the
Building shall be damaged or destroyed or rendered completely or partially
untenantable on account of fire or other casualty, the Rent shall not be
abated or reduced, as the case may be, to the extent of payments pursuant to
Tenant's business interruption insurance allocable to rental and, subsequent to
the exhaustion of payments thereunder, the Rent shall be abated or reduced, as
the case may be, in proportion to the untenantable area of the Building for the
period from the date of the damage or destruction to the date the damage to the
Building shall be substantially repaired; provided, however, should Tenant
reoccupy a portion of the Building during the period the repair or restoration
work is taking place and prior to the date that the Building is substantially
repaired or made tenantable the Rent allocable to such reoccupied portion, shall
be payable by Tenant from the date of such occupancy.
24.03 If (a) the Building shall be totally damaged or destroyed by fire
or other casualty, or (b) the Building shall be so damaged or destroyed by fire
or other casualty that its repair or restoration requires the expenditure, as
estimated by a reputable contractor
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or architect designated by Landlord and approved by Tenant which approval shall
not be unreasonably withheld, of more than twenty percent (20%) of the full
insurable value of the Building immediately prior to the casualty, and, in
either event, an engineer selected by Landlord and approved by Tenant, which
approval shall not be unreasonably withheld or delayed, shall reasonably
estimate that there will be less than two (2) years remaining in the Term
(including all Renewal Terms for which Tenant has validly exercised the
applicable Renewal Option) upon completion of restoration of the Building, then
in either such case Landlord or Tenant may terminate this Lease by giving the
other notice to such effect within ninety (90) days after the date of the fire
or other casualty. Notwithstanding anything contained in this Lease to the
contrary, if there shall occur such a casualty at such time as there shall be
estimated to be less than two years remaining in the Term of this Lease after
completion or restoration but prior to the time that pursuant to the provisions
of Article 39 hereof Tenant shall have the right to exercise any Renewal Option,
then, prior to Landlord terminating this Lease, Tenant shall have the right to
exercise any such Renewal Option otherwise in accordance with the provisions of
Article 39 hereof. If either party shall elect to so terminate this Lease, the
Term shall expire upon the tenth (10th) day after such notice is given and
Tenant shall vacate the Demised Premises and surrender the same to Landlord in
accordance with the provisions of this Lease. Upon the termination of this Lease
in accordance with this Section 24.03, Tenant's liability for Rent thereafter
due and payable shall cease and any prepaid portion of Rent for any period after
such date shall be refunded by Landlord to Tenant.
24.04 Except as provided for in Section 24.08 of this Lease, Tenant
shall not be entitled to terminate this Lease and no damages, compensation or
claim shall be payable by Landlord for inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the Building
pursuant to this Article 24. Landlord shall use its best efforts to make such
repair or restoration promptly and in such manner as to not unreasonably
interfere with Tenant's use and occupancy of the Demised Premises, but Landlord
shall not be required to do such repair or restoration work on an overtime basis
unless fully reimbursed by Tenant.
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24.05 Notwithstanding any of the foregoing provisions of this Article
24, if by reason of some act or omission on the part of Tenant or any of its
subtenants or its or their partners, directors, officers, servants, employees,
agents or contractors, either (a) Landlord or any Superior Lessor or any
Superior Mortgagee shall be unable to collect all of the insurance proceeds
(including, without limitation, rent insurance proceeds) applicable to damage or
destruction of the Building by fire or other casualty, or (b) the Building shall
be damaged or destroyed or rendered completely or partially untenantable on
account of fire or other casualty, then, without prejudice to any other remedies
which may be available against Tenant, there shall be no abatement or reduction
of the Rent. Further, nothing contained in this Article 24 shall relieve Tenant
from any liability that may exist as a result of any damage or destruction by
fire or other casualty.
24.06 Landlord will not carry insurance of any kind on the Tenant's
Property, and, except as provided by law or by reason of Landlord's breach of
any of its obligations hereunder, shall not be obligated to repair any damage or
to replace the Tenant's Property.
24.07 The provisions of this Article 24 shall be deemed an express
agreement governing any case of damage or destruction of the Building by fire or
other casualty, and any law providing for such a contingency in the absence of
an express agreement, now or hereafter in force, shall have no application in
such case.
24.08 Anything contained in this Article 24 to the contrary
notwithstanding, within thirty (30) days after Landlord has notice of any damage
that materially impairs Tenant's ability to conduct its business in the
Building, Landlord shall deliver to Tenant a statement prepared by a reputable
contractor approved by Tenant, which approval shall not be unreasonably withheld
or delayed, setting forth such contractor's estimate as to the time required to
repair such damage and the assumptions regarding the use of labor (including
overtime labor, if applicable) and construction methods considered in arriving
at such estimate. If the estimated time period exceeds twelve (12) months from
the date of such damage or if such estimate is not delivered to Tenant as
required, Tenant may elect to terminate this Lease by notice to Landlord not
later than thirty (30) days fol-
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lowing receipt of such statement or, if no statement is delivered, not later
than thirty (30) days after the date such statement was to have been delivered.
If Tenant makes such election, the Term shall expire upon the thirtieth (30th)
day after notice of such election is given by Tenant and Tenant shall vacate the
Demised Premises and surrender the same to Landlord in accordance with the
provisions of this Lease. If Tenant shall not have elected to terminate this
Lease pursuant to this Article 24 (or is not entitled to terminate this Lease
pursuant to this Article 24) and such repairs are (i) not commenced by Landlord
within sixty (60) days after the date Landlord has notice of such damage, (ii)
not prosecuted substantially on the basis specified in the contractor's estimate
referred to in this paragraph so that the repairs cannot be Substantially
Completed within the estimated time period (unless Landlord agrees to take such
other measures required to Substantially Complete such repairs within such
period), or (iii) not Substantially Completed by Landlord within twelve (12)
months after the date Landlord has such notice, subject to Unavoidable Delays,
but in no event later than fifteen (15) months after Landlord has such notice,
Tenant may elect to terminate this Lease by notice to Landlord not later than
fifteen (15) days following the expiration of either of the periods specified in
clauses (i) and (iii) above or fifteen (15) days notice if Landlord shall not be
prosecuting such repairs as required by clause (ii) hereof. Notwithstanding the
foregoing, if at any time Tenant believes that Landlord shall not be diligently
prosecuting such repairs and shall so notify Landlord, Tenant shall have the
right to seek injunctive relief. If Tenant makes such election, the Term of this
Lease shall expire upon the thirtieth (30th) day after notice of such election
is given by Tenant and Tenant shall vacate the Demised Premises and surrender
the same to Landlord in accordance with the provisions of this Lease. Upon the
termination of this Lease under the conditions provided in this Section,
Tenant's liability for Rent thereafter due and payable shall cease and any
prepaid portion of Rent for any period after such date shall be refunded by
Landlord to Tenant. Landlord shall advise Tenant of any Unavoidable Delays the
Landlord shall have incurred in connection with any such repair, promptly after
the same shall have occurred and the length thereof. Notwithstanding the
foregoing, however, if Tenant shall elect to terminate this Lease and within ten
(10) days after notice of such election is given by Tenant, Landlord shall
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offer to relocate Tenant's entire operation (or so much thereof as Tenant may
request) located at the Demised Premises to other premises located in the
Lincoln Harbor Project, which shall permit Tenant to promptly resume its
operations, and Landlord shall in fact so relocate Tenant within ninety (90)
days after notice of such election, (or such shorter period as may be possible
and provided that Landlord shall use its best efforts) then Tenant's election to
terminate this Lease shall be deemed to be rescinded and of no further force or
effect, and Tenant's obligations hereunder shall remain unaffected. Landlord
shall proceed with the restoration and repair of the Demised Premises in
accordance with the provisions hereof.
24.09 If, at any time during the Term, the Building shall be so damaged
or destroyed by fire or other casualty that its repair or restoration requires
the expenditure, as estimated by a reputable contractor or architect designated
by Landlord and approved by Tenant, which approval shall not be unreasonably
withheld, of more than twenty-five percent (25%) of the full insurable value of
the Building immediately prior to the casualty and there shall be insufficient
insurance proceeds available to Landlord to pay for the estimated cost of repair
and restoration, then Landlord may terminate this Lease, whether or not Tenant
shall have elected to terminate this Lease pursuant to Section 24.08 hereof, by
giving Tenant notice to such effect within sixty (60) days after the date of the
fire or other casualty. If Landlord shall elect to so terminate this Lease, the
Term shall expire upon the tenth (10th) day after such notice is given and
Tenant shall vacate the Demised Premises and surrender the same to Landlord in
accordance with the provisions of this Lease. Upon the termination of this Lease
in accordance with this Section 24.09, Tenant's liability for Rent thereafter
due and payable shall cease and any prepaid portion of Rent for any period after
such date shall be refunded by Landlord to Tenant.
24.10 Notwithstanding anything contained in this Lease to the contrary,
if pursuant to the provisions of the Office Premises Lease, dated of even date
herewith, between Landlord, as landlord and Tenant, as tenant, (the "Office
Lease") the Tenant thereunder shall have the right to, and shall, terminate such
lease in connection with a casualty, and such tenant shall be Tenant or an
affiliate of Tenant, then Tenant, at Tenant's sole
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option, shall also have the right to terminate this Lease simultaneously with
the termination of the Office Lease. If Tenant shall make such election, the
Term of this Lease shall expire on the date specified in such notice of
election, which date shall be not less than six (6) months nor more than
eighteen (18) months from the date of such notice, and Tenant shall vacate the
Demised Premises and surrender the same to Landlord in accordance with the
provisions hereof. Upon the termination of this Lease hereunder, Tenant's
liability for Rent thereafter due and payable shall cease and any prepaid
portion of Rent for any period after such date shall be refunded by Landlord to
Tenant.
ARTICLE 25 - EMINENT DOMAIN
25.01 If the whole of the Demised Premises shall be taken by any public
or quasi-public authority under the power of condemnation, eminent domain or
expropriation, or in the event of conveyance of the whole of the Demised
Premises in lieu thereof, this Lease shall terminate as of the day possession
shall be taken by such authority. If fifteen percent (15%) or less of the Floor
Space of the Building shall be so taken or conveyed, this Lease shall terminate
only in respect of the part so taken or conveyed as of the day possession shall
be taken by such authority. If more than fifteen percent (15%) of the Floor
Space of the Building shall be so taken or conveyed, this Lease shall terminate
only in respect of the part so taken or conveyed as of the day possession shall
be taken by such authority, but either party shall have the right to terminate
this Lease upon notice given to the other party within thirty (30) days after
taking such possession. If so much of the parking facilities shall be so taken
or conveyed that the number of parking spaces necessary, for the continued
operation of the Demised Premises shall not be available, Tenant may, by notice
to Landlord, terminate this Lease as of the day possession shall be taken. If
this Lease shall continue in effect as to any portion of the Demised Premises
not so taken or conveyed, the Rent shall be reduced in the proportion which the
area of the part of the Building so acquired or condemned bears to the total
area of the Building immediately prior to such acquisition or condemnation.
Except as specifically provided herein, in the event of any such taking or
conveyance there shall be no reduction in Rent. If this Lease shall be
terminated in accordance with the provisions of this Section 25.01,
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this Lease and the Term shall come to an end and expire as of the date of the
taking, with the same effect as if such date were the Expiration Date, and the
Rent shall be apportioned as of the date of such termination and any prepaid
portion of Rent for any period after such date shall be refunded by Landlord to
Tenant. Notwithstanding the foregoing, however, if this Lease shall be
terminated by reason of a taking of the whole of the Demised Premises or by
reason of Tenant electing to terminate this Lease pursuant to the provisions
hereof, and if Landlord, within five (5) days after such taking or after notice
of such election is given by Tenant, Landlord shall offer to relocate Tenant's
entire operation located at the Demised Premises to other premises located in
the Lincoln Harbor Project, which other premises shall be of comparable size and
quality and Landlord in fact shall so relocate Tenant within ninety (90) days
(or such shorter period as may be possible and provided that Landlord shall use
its best efforts) after notice of such election, then either such Termination
shall be deemed to be rescinded and of no further force or effect and Tenant's
obligations hereunder shall remain unaffected. In the case of such relocations,
Fixed Rent, Tenants' Fraction, Tenants' Proportionate Share, if applicable, and
Operating Expenses shall be equitably adjusted based upon the floor space of
such other premises. If this Lease shall continue in effect, Landlord shall, at
its expense, but shall be obligated only to the extent of the net award or other
compensation (after deducting all expenses in connection with obtaining same)
available to Landlord for the improvements taken or conveyed (excluding any
award or other compensation for land or for the unexpired portion of the term of
any Superior Lease), make all necessary alterations so as to constitute the
remaining Building a complete architectural and tenantable unit, except for the
Tenant's Property, and Tenant shall make all alterations or replacements to the
Tenant's Property and decorations in the Building. All awards and compensation
for any taking or conveyance, whether for the whole or a part of the Land or
Building or otherwise, shall be property of Landlord, and Tenant hereby assigns
to Landlord all of Tenant's right, title and interest in and to any and all such
awards and compensation. Tenant shall be entitled to claim, prove and receive in
the condemnation proceeding such award or compensation as may be allowed for the
Tenant's Property, Tenant's trade fixtures and for loss of business, goodwill,
moving and depreciation or injury to and cost of removal of the Tenant's
Property, to the
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extent such award or compensation shall be made by the condemning authority in
addition to, and shall not result in a reduction of, the award or compensation
made by it to Landlord.
25.02 If the temporary use or occupancy of all or any part of the
Demised Premises shall be taken during the Term, Tenant shall be entitled,
except as hereinafter set forth, to receive that portion of the award or payment
for such taking which represents compensation for the use and occupancy of the
Demised Premises, for the taking of the Tenant's Property and for moving
expenses, and Landlord shall be entitled to receive that portion which
represents reimbursement for the cost of restoration of the Demised Premises.
This Lease shall be and remain unaffected by such taking and Tenant shall
continue responsible for all of its obligations hereunder insofar as such
obligations are not affected by such taking and shall continue to pay the Rent
in full when due. If the period of temporary use or occupancy shall extend
beyond the Expiration Date, that part of the award or payment which represents
compensation for the use and occupancy of the Demised Premises (or a part
thereof) shall be divided between Landlord and Tenant so that Tenant shall
receive (except as otherwise provided below) so much thereof as represents
compensation for the period up to and including the Expiration Date and Landlord
shall receive so much thereof as represents compensation for the period after
the Expiration Date.
25.03 In the event the premises leased pursuant to the Office Lease are
taken or such portions of said facilities are taken resulting in a termination
of the Office Lease and the tenant under the Office Lease shall be Tenant or an
affiliate of Tenant, then Tenant, at Tenant's option, shall have the right to
terminate this Lease on the date specified in such notice of election, which
date shall be not less than six (6) months nor more than eighteen (18) months
from the date of such notice; provided, however, that Tenant shall have the
right to continue its occupancy of the Demised Premises subject to the terms of
this Lease on a month-to-month basis (not to exceed twelve (12) months) until
suitable moving arrangements are made.
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ARTICLE 26 - SURRENDER
26.01 On the Expiration Date, or upon any earlier termination of this
Lease, or upon any re-entry by Landlord upon the Demised Premises, Tenant shall
quit and surrender the Demised Premises to Landlord "broom-clean" and in good
order, condition and repair, except for ordinary wear and tear and such damage
or destruction as Landlord is required to repair or restore under this Lease,
and Tenant shall remove any item of Tenant's Property therefrom required
pursuant to this Lease.
26.02 If Tenant remains in possession of the Demised Premises after the
expiration of the Term, Tenant shall be deemed to be occupying the Demised
Premises as a tenant from month to month subject to all of the provisions of
this Lease, except that the monthly Fixed Rent shall be twice the Fixed Rent in
effect during the last month of the Term.
26.03 No act or thing done by Landlord or its agents shall be deemed an
acceptance of a surrender of the Demised Premises, and no agreement to accept
such surrender shall be valid unless in writing and signed by Landlord.
ARTICLE 27 - CONDITIONS OF LIMITATION
27.01 This Lease is subject to the limitation that whenever Tenant (a)
shall make an assignment for the benefit of creditors, or (b) shall commence a
voluntary case or have entered against it an order for relief under any chapter
of the Federal Bankruptcy Code (Title II of the United States Code) or any
similar order or decree under any federal or state law, now in existence, or
hereafter enacted having the same general purpose, and such order or decree
shall have not been stayed or vacated within 30 days after entry, or (c) shall
cause, suffer, permit or consent to the appointment of a receiver, trustee,
administrator, conservator, sequestrator, liquidator or similar official in any
federal, state or foreign judicial or non-judicial proceeding, to hold,
administer and/or liquidate all or substantially all of its assets, and such
appointment shall not have been revoked, terminated, stayed or vacated and such
official discharged of his duties within 30 days of his appointment then
Landlord, at any time after the occurrence of any such event, may give Tenant a
notice of intention to end
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the Term at the expiration of five (5) days from the date of service of such
notice of intention, and upon the expiration of said five (5) period, whether or
not the Term shall theretofore have commenced, this Lease shall terminate with
the same effect as if that day were the Expiration Date of this Lease, but
Tenant shall remain liable for damages as provided in Article 29.
27.02 This Lease is subject to the further limitations (collectively,
"Events of Default") that: (a) if Tenant shall default in the payment of any
installment of Fixed Rent, and such default shall continue for five (5) days
after invoice for same by Landlord or for five (5) days after notice of such
default, whichever is shorter, or (b) if Tenant shall, whether by action or
inaction, be in default of any of its obligations under this Lease (other than a
default in the payment of Fixed Rent) and such default shall continue and not be
remedied within thirty (30) days after Landlord shall have given to Tenant a
notice specifying the same, or, in the case of a default which cannot with due
diligence be cured within a period of thirty (30) days and the continuance of
which for the period required for cure will not subject Landlord or any Superior
Lessor or prosecution for a crime (as more particularly described in the last
sentence of Section 12.02) or termination of any Superior Lease or foreclosure
of any Superior Mortgage, if Tenant shall not, (i) within said thirty (30) day
period advise Landlord of Tenant's intention to take all steps necessary to
remedy such default, (ii) duly commence within said thirty (30) day period, and
thereafter diligently prosecute to completion all steps necessary to remedy the
default, and (iii) complete such remedy within a reasonable time after the date
of said notice by Landlord, (c) if Tenant shall abandon the Demised Premises, or
(d) if there shall be any default by Tenant (or any person which, directly or
indirectly, controls, is controlled by, or is under common control with Tenant)
under any other lease with Landlord (or any person which, directly or
indirectly, controls is controlled by, or is under common control with Landlord)
which shall not be remedied within the applicable grace period, if any, provided
therefor under such other lease, then in any of said cases Landlord may give to
Tenant a notice of intention to end the Term at the expiration of five (5) days
from the date of the service of such notice of intention, and upon the
expiration of said five (5) days, whether or not the Term shall theretofore have
commenced this Lease
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shall terminate with the same effect as if that day were the expiration date of
this Lease, but Tenant shall remain liable for damages as provided in Article
29.
ARTICLE 28 - RE-ENTRY BY LANDLORD
28.01 If this Lease shall terminate as provided in Article 27, Landlord
or Landlord's agents and employees may immediately or at any time thereafter
re-enter the Demised Premises, or any part thereof, either by summary dispossess
proceedings or by any suitable action or proceeding at law, or otherwise,
without being liable to indictment, prosecution or damages therefor, and may
repossess the same, and may remove any Person therefrom, to the end that
Landlord may have, hold and enjoy the Demised Premises. The word "re-enter", as
used herein, is not restricted to its technical legal meaning. If this Lease is
terminated under the provisions of Article 27, or if Landlord shall re-enter the
Demised Premises under the provisions of this Article 28, or in the event of the
termination of this Lease, or of re-entry, by or under any summary dispossess or
other proceedings or action or any provision of law by reason of default
hereunder on the part of Tenant, Tenant shall thereupon pay to Landlord the Rent
payable up to the time of such termination of this Lease, or of such recovery of
possession of the Demised Premises by Landlord, as the case may be, and shall
also pay to Landlord damages as provided in Article 29.
28.02 In the event of a breach by Tenant of any of its obligations
under this Lease, Landlord shall also have the right of injunction. The special
remedies to which Landlord may resort hereunder are cumulative and are not
intended to be exclusive of any other remedies to which Landlord may lawfully be
entitled at any time and Landlord may invoke any remedy allowed at law or in
equity as if specific remedies were not provided for herein.
28.03 If this Lease shall terminate under the provisions of Article 27,
or if Landlord shall re-enter the Demised Premises under the provisions of this
Article 28, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Landlord shall be
entitled to retain all monies, if any, paid by Tenant to Landlord, whether as
advance Rent, security or otherwise,
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but such monies shall be credited by Landlord against any Rent due from Tenant
at the time of such termination or re-entry or, at Landlord's option, against
any damages payable by Tenant under Article 29 or pursuant to law.
ARTICLE 29 - DAMAGES
29.01 If this Lease is terminated under the provisions of Article 27,
or if Landlord shall re-enter the Demised Premises under the provisions of
Article 28, or in the event of the termination of this Lease, or of re-entry, by
or under any summary dispossess or other proceeding or action or any provision
of law by reason of default hereunder on the part of Tenant, Tenant shall pay to
Landlord as damages, at the election of Landlord, either:
(a) a sum which at the time of such termination of this Lease or
at the time of any such re-entry by Landlord, as the case may be,
represents the then value of the excess, if any, of (i) the aggregate
amount of the Rent which would have been payable by Tenant (conclusively
presuming the average monthly Additional Charges payable for the year, or
if less than 365 days have then elapsed since the Commencement Date, the
partial year, immediately preceding such termination of re-entry) for the
period commencing with such earlier termination of this Lease or the date
of any such re-entry, as the case may be, and ending with the Expiration
Date, over (ii) the aggregate rental value of the Demised Premises for the
same period, which amounts shall be discounted to present worth at a rate
equal to nine percent (9%) per annum; or
(b) sums equal to the Fixed Rent and the Additional Charges which
would have been payable by Tenant had this Lease not so terminated, or had
Landlord not so re-entered the Demised Premises, payable upon the due dates
therefor specified herein following such termination or such re-entry and
until the Expiration Date, provided, however, that if Landlord shall relet
the Demised Premises during said period, Landlord shall credit Tenant with
the net rents received by Landlord from such relet-
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ting, such net rents to be determined by first deducting from the gross
rents as and when received by Landlord from such reletting the expenses
incurred or paid by Landlord in terminating this Lease or in re-entering
the Demised Premises and in securing possession thereof, as well as the
expenses of reletting, including, without limitation, altering and
preparing the Demised Premises for new tenants, brokers' commissions, legal
fees, and all other expenses properly chargeable against the Demised
Premises and the rental therefrom, it being understood that any such
reletting may be for a period shorter or longer than the period ending on
the Expiration Date; but in no event shall Tenant be entitled to receive
any excess of such net rents over the sums payable by Tenant to Landlord
hereunder, nor shall Tenant be entitled in any suit for the collection of
damages pursuant to this subdivision (b) to a credit in respect of any
rents from a reletting, except to the extent that such net rents are
actually received by Landlord. If the Demised Premises or any part thereof
should be relet in combination with other space, then proper apportionment
on a square foot basis shall be made of the rent received from such
reletting and of the expenses of reletting.
If the Demised Premises or any part thereof be relet by Landlord before
presentation of proof of such damages to any court, commission or tribunal, the
amount of rent reserved upon such reletting shall, prima facie, be the fair and
reasonable rental value for the Demised Premises, or part thereof, so relet
during the term of the reletting. Landlord shall not be liable in any way
whatsoever for its failure or refusal to relet the Demised Premises or any part
thereof, or if the Demised Premises or any part thereof are relet, for its
failure to collect the rent under such reletting, and no such refusal or failure
to relet or failure to collect rent shall release or affect Tenant's liability
for damages or otherwise under this Lease.
29.02 Suit or suits for the recovery of such damages or, any
installments thereof, may be brought by Landlord at any time and from time to
time at its election, and nothing contained herein shall be deemed to
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require Landlord to postpone suit until the date when the Term would have
expired if it had not been so terminated under the provisions of Article 27, or
under any provision of law, or had Landlord not re-entered the Demised Premises.
Nothing herein contained shall be construed to limit or preclude recovery by
Landlord against Tenant of any sums or damages to which, in addition to the
damages particularly provided above, Landlord may lawfully be entitled by reason
of any default hereunder on the part of Tenant. Nothing herein contained shall
be construed to limit or prejudice the right of Landlord to prove for and obtain
as damages by reason of the termination of this Lease or re-entry on the Demised
Premises for the default of Tenant under this Lease an amount equal to the
maximum allowed by any statute or rule of law in effect at the time when, the
governing the proceedings in which, such damages are to be proved whether or not
such amount be greater than, equal to, or less than any of the sums referred to
in Section 29.01.
29.03 In addition, if this Lease is terminated under the provisions of
Article 27, or if Landlord shall re-enter the Demised Premises under the
provisions of Article 28, Tenant covenants that: (a) the Demised Premises then
shall be in the same condition as that in which Tenant has agreed to surrender
the same to Landlord at the Expiration Date; (b) Tenant shall have performed
prior to any such termination any obligation of Tenant contained in this Lease
for the making of any alteration or for restoring or rebuilding the Demised
Premises, or any part thereof; and (c) for the breach of any covenant of Tenant
set forth above in this Section 29.03, Landlord shall be entitled immediately,
without notice or other action by Landlord, to recover, and Tenant shall pay, as
and for liquidated damages therefor, the cost of performing such covenant (as
estimated by an independent contractor selected by Landlord).
29.04 In addition to any other remedies Landlord may have under this
Lease, and without reducing or adversely affecting any of Landlord's rights and
remedies under this Article 29, if any Rent or damages payable hereunder by
Tenant to Landlord are not paid within five (5) days after demand therefor, the
same shall bear interest at the Late Payment Rate from the due date thereof
until paid, and the amounts of such interest shall be Additional Charges
hereunder.
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ARTICLE 30 - AFFIRMATIVE WAIVERS
30.01 Tenant, on behalf of itself and any and all persons claiming
through or under Tenant, does hereby waive and surrender all right and privilege
which it, they or any of them might have under or by reason of any present
or future law, to redeem the Demised Premises or to have a continuance of this
Lease after being dispossessed or ejected from the Demised Premises by process
of law or under the terms of this Lease or after the termination of this Lease
as provided in this Lease.
30.02 Landlord and Tenant hereby waive trial by jury in any action,
proceeding or counterclaim brought by either against the other on any matter
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, and Tenant's use or occupancy of the
Demised Premises and use of the Common Areas, including, without limitation, any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the De-
mised Premises (unless failure to do so would constitute a waiver thereof) nor
attempt to remove such action or proceeding to the law division of the Superior
Court of New Jersey.
ARTICLE 31 - NO WAIVERS
The failure of either party to insist in any one or more instances upon
the strict performance of any one or more of the obligations of this Lease, or
to exercise any election herein contained, shall not be construed as a waiver or
relinquishment for the future of the performance of such one or more obligations
of this Lease or of the right to exercise such election, but the same shall
continue and remain in full force and effect with respect to any subsequent
breach, act or omission. The receipt by Landlord of Fixed Rent or Additional
Charges with knowledge of breach by Tenant of any obligation of this Lease shall
not be deemed a waiver of such breach.
ARTICLE 32 - CURING TENANT'S DEFAULTS
If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord,
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without thereby waiving such default, may (but shall not be obligated to)
perform the same for the account and at the expense of Tenant, without notice in
a case of emergency, and in any other case only if such default continues after
the expiration of thirty (30) days from the date Landlord gives Tenant notice of
the default. Bills for any expenses incurred by Landlord in connection with any
such performance by it for the account of Tenant, and bills for all costs,
expenses and disbursements of every kind and nature whatsoever, including
reasonable attorneys' fees and expenses, involved in collecting or endeavoring
to collect the Rent or any part thereof or enforcing or endeavoring to enforce
any rights against Tenant or Tenant's obligations hereunder, under or in
connection with this Lease or pursuant to law, including any such cost, expense
and disbursement involved in instituting and prosecuting summary proceedings or
in recovering possession of the Demised Premises after default by Tenant or upon
the expiration of the Term or sooner termination of this Lease, and interest on
all sums advanced by Landlord under this Article at the Late Payment Rate, may
be sent to Landlord to Tenant monthly, or immediately, at Landlord's option, and
such among shall be due and payable in accordance with the terms of such bills.
ARTICLE 33 - BROKER
Landlord and Tenant each represent to the other that no broker except
the Broker was instrumental in bringing about or consummating this Lease and
that it had no conversations or negotiations with any broker except the Broker
concerning the leasing of the Demised Premises. Each party agrees to indemnify
and hold harmless the other against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection therewith,
including, without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by the indemnifying party with any broker
other than the Broker. Landlord shall pay any brokerage commissions due the
Broker pursuant to a separate agreement between Landlord and the Broker.
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ARTICLE 34 - NOTICES
Any notice, statement, demand, consent, approval or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Lease or pursuant to any applicable Legal Requirement,
shall be in writing and shall be deemed to have been properly given, rendered or
made only if hand delivered or sent by United States registered or certified
mail, return receipt requested, addressed to the other party at the address
hereinabove set forth (except that after the Commencement Date, Tenant's
address, unless Tenant shall give notice to the contrary, shall be the Building)
as to Landlord, to the attention of General Counsel with a copy to the attention
of President and to Horowitz, Bross, Sinins and Imperial, 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000-0000, Attention: Xxxxx X. Xxxxxxxx, Esq.,
and as to Tenant, to the attention of Facilities Department-Vice President, with
a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxx X. Xxxxxxx, Esq., and shall be deemed to have
been given, rendered or made on the day after the day so delivered or mailed,
unless mailed outside the State of New Jersey in which case it shall be deemed
to have been given, rendered or made on the third business day after the day so
mailed. Either party may, by notice as aforesaid, designate a different address
or addresses for notices, statements, demands, consents, approvals or other
communications intended for it.
ARTICLE 35 - ESTOPPEL CERTIFICATES
Each party shall, at any time and from time to time, as requested by
the other party, upon not less than ten (10) days' prior notice, execute and
deliver to the requesting party a statement certifying that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that the same is in full force and effect as modified and stating the
modifications), certifying the dates to which the Fixed Rent and Additional
Charges have been paid, stating whether or not, to the best knowledge of the
party giving the statement, the requesting party is in default in performance of
any of its obligations under this Lease, and, if so, specifying each such
default of which the party giving the statement shall have knowledge, and
stating whether or not, to the best knowledge of the party giving the statement,
any
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event has occurred which with the giving of notice of passage of time, or both,
would constitute such a default of the requesting party, and, if so, specifying
each such event; any such statement delivered pursuant hereto shall be deemed a
representation and warranty to be relied upon by the party requesting the
certificate and by others with whom such party may be dealing, regardless of
independent investigation. Each party also shall include in any such statement
such other information concerning this Lease as the other party may reasonably
request.
ARTICLE 36 - ARBITRATION
Landlord or Tenant may at any time request arbitration, of any matter
in dispute. The party requesting arbitration shall do so by giving notice to
that effect to the other party, specifying in said notice the nature of the
dispute, and said dispute shall be determined in Newark, New Jersey, by a single
arbitrator, in accordance with the rules then obtaining of the American
Arbitration Association (or any organization which is the successor thereto).
The award in such arbitration may be enforced on the application of either party
by the order or judgment of a court of competent jurisdiction. The fees and
expenses of any arbitration shall be borne by the parties equally, but each
party shall bear the expense of its own attorneys and experts and the additional
expenses of presenting its own proof.
ARTICLE 37 - MEMORANDUM OF LEASE
This Lease shall not be recorded, however, at the request of either
party, Landlord and Tenant shall promptly execute, acknowledge and deliver to
the other party (i) a memorandum of lease in respect of this Lease sufficient
for recording, and (ii) after each of the Commencement Date, the Fixed Rent
Commencement Date, and any Renewal Term Commencement Date, either an agreement
or a restated memorandum (if a memorandum shall have been executed or recorded
as provided immediately above) stating the Commencement Date, Fixed Rent
Commencement Date or any Renewal Term Commencement Date, as the case may be,
each sufficient for recording. Failure by either party to request or to execute,
acknowledge or deliver any such memorandum or agreement, however, shall not
affect the determination of the Commencement Date, the Fixed Rent Commencement
Date or any Renewal Term Commencement Date, as the case may be. Such memorandum
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shall not be deemed to change or otherwise affect any of the obligations or
provisions of this Lease. Whichever party records such memorandum of Lease shall
pay all recording costs and expenses, including any taxes that are due upon such
recording.
ARTICLE 38 - MISCELLANEOUS
38.01 Tenant expressly acknowledges and agrees that Landlord has not
made and is not making, and Tenant, in executing and delivering this Lease, is
not relying upon, any warranties, representations, promises or statements,
except to the extent that the same are expressly set forth in this Lease or in
any other written agreement(s) which may be made between the parties
concurrently with the execution and delivery of this Lease. All understandings
and agreements heretofore had between the parties are merged in this Lease and
any other written agreement(s) made concurrently herewith, which alone fully and
completely express the agreement of the parties and which are entered into after
full investigation. Neither party has relied upon any statement or
representation not embodied in this Lease or in any other written agreement(s)
made concurrently herewith.
38.02 No agreement shall be effective to change, modify, waive,
release, discharge, terminate or effect an abandonment of this Lease, in whole
or in part, unless such agreement is in writing, refers expressly to this Lease
and is signed by Landlord and Tenant.
38.03 If Tenant shall at any timer request Landlord to sublet or let
the Demised Premises for Tenant's account, Landlord or its agent is authorized
to receive keys for such purposes without releasing Tenant from any of its
obligations under this Lease, and Tenant hereby releases Landlord of any
liability for loss or damage to any of the Tenant's Property in connection with
such subletting or letting.
38.04 Except as otherwise expressly provided in this Lease, the
obligations under this Lease shall bind and benefit the successors and assigns
of the parties hereto with the same effect as if mentioned in each instance
where a party is named or referred to; provided, however, that the provisions of
this Section 38.04 shall not be construed as modifying the conditions of
limitation contained in Article 27.
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38.05 Except for Tenant's obligations to pay Rent, the time for
Landlord or Tenant, as the case may be, to perform any of their respective
obligations hereunder shall be extended if and to the extent that the
performance thereof shall be prevented due to any Unavoidable Delays. Except as
expressly provided to the contrary, the obligations of Tenant hereunder shall
not be affected, impaired or excused, nor shall Landlord have any liability
whatsoever to Tenant, (a) because Landlord is unable to fulfill, or is delayed
in fulfilling, any of its obligations under this Lease due to any of the matters
set forth in the first sentence of this Section 38.05, or (b) because of any
failure or defect in the supply, quality or character of electricity, water or
any other utility or service furnished to the Demised Premises for any reason
beyond Landlord's reasonable control.
38.06 Any liability for payments or reimbursement of payments hereunder
(including, without limitation, Additional Charges) shall survive the expiration
of the Term or earlier termination of this Lease.
38.07 Tenant shall give prompt notice to Landlord of (a) any occurrence
in or about the Demised Premises for which Landlord might be liable, (b) any
fire or other casualty in the Building, (c) any damage to or defect in the
Building, including the fixtures and equipment thereof, for the repair of which
Landlord might be responsible, and (d) any damage to or defect in any part of
the Building, sanitary, electrical, heating, ventilating, airconditioning,
elevator or other systems located in passing through the Building or any part
thereof.
38.08 This Lease shall be governed by and construed in accordance with
the laws of the State of New Jersey. If any provision of this Lease shall, be
invalid or unenforceable, the remainder of this Lease shall not be affected and
shall be enforced to the extent permitted by law. The table of contents,
captions, headings and titles in this Lease are solely for convenience of
reference and shall not affect its interpretation. If any words or phrases in
this Lease shall have been stricken out or otherwise eliminated, whether or not
any other words or phrases have been added, this Lease shall be construed as if
the words or phrases so stricken out or otherwise eliminated were never included
in this Lease and no implication or inference shall be drawn from the fact that
said words or phrases were so stricken out or
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otherwise eliminated. Each covenant, agreement, obligation or other provision of
this Lease on Tenant's part to be performed, shall be deemed and construed as a
separate and independent covenant of Tenant, not dependent on any other
provision of this Lease. All terms and words used in this Lease, regardless of
the number or gender in which they are used, shall be deemed to include any
other number and any other gender as the context may require.
38.09 Within thirty (30) days of each anniversary date of this Lease,
annually Tenant shall furnish to Landlord a copy of its then current audited
financial statement (or form 10-K) which shall not be distributed without the
prior authorization of Tenant.
38.10 In addition, at any time during the Term, Tenant shall have the
right to request a redetermination of Operating Expenses because of a claimed
increase in the floor space of improvements constructed in the Lincoln Harbor
Project. If Tenant shall make any such request, then the Architect and an
architect appointed by Tenant shall remeasure the floor space of the
improvements in the Lincoln Harbor Project, in accordance with the standards set
forth on Exhibit "D" annexed hereto and made a part hereof. If Architect and the
architect appointed by Tenant shall agree, the Operating Expenses as determined
by such architects shall be conclusive and binding upon the parties. If the
Architect and the architect appointed by Tenant shall be unable to agree as to
the Operating Expenses, then such architects shall select a third architect (or
if such architects shall be unable to agree upon such third architect, the same
shall be selected by the American Arbitration Association or successor
organization) and such third architect shall select either the Operating
Expenses as calculated by the Architect or the Operating Expenses as calculated
by the architect appointed by Tenant. In no event, however, may the Operating
Expenses be increased from the amounts set forth herein. Such finding shall be
conclusive and binding upon the parties.
38.11 Notwithstanding anything contained in this Lease to the contrary,
if Landlord shall have failed to deliver to Tenant the Demised Premises to
Tenant on or before January 1, 1987, as the same may be extended by reason of
Unavoidable Delays to a date no later than June 1, 1987, as to which date time
shall be of the essence, Tenant shall have the option to cancel this Lease
56
60
and the Term by giving thirty (30) days' notice to Landlord of such cancellation
no later than the tenth (10th) day after such date. Upon the giving of such
notice, this Lease and the Term shall expire and come to an end as of the
expiration of such thirty (30) day period provided that Landlord shall not have
delivered the Demised Premises to Tenant during such period, and Landlord and
Tenant shall be released and discharged of and from all liabilities under the
provisions of this Lease as of the date of such Termination.
In addition, if for any reason other than Landlord's fault, the
Commencement Date shall not have occurred on or before June 1, 1987, then, on
the later to occur of June 1, 1987 and the date on which restoration of the
Demised Premises shall have experienced Unavoidable Delays equal to twelve (12)
months in the aggregate, Landlord shall have the option to cancel this Lease and
the Term by giving thirty (30) days' notice of such cancellation to Tenant. Upon
the giving of such notice, this Lease and the Term shall expire and come to an
end as of the expiration of such thirty (30) day period, and Landlord and Tenant
shall be released from all liabilities under the provisions of this Lease as of
the date of such termination.
38.12 Tenant acknowledges that pursuant to the provisions of the
Agreement of Limited Partnership, dated of even date herewith, of Landlord,
Tenant, as limited partner thereunder, has pledged its partnership interest
thereunder pursuant to Section 14.13 thereof to secure its obligations hereunder
for a period of five (5) years from the Fixed Rent Commencement Date.
38.13 Landlord hereby represents and warrants that the floor load
capacity of the Building is not less than 100 pounds live load. Landlord
acknowledges that Tenant has informed it that it believes that the Building may
not have such a floor load; if any repairs or reinforcements are, in fact,
required to make such representation true and correct, Landlord, at its sole
cost and expense, promptly after request by Tenant, shall perform and each work.
ARTICLE 39 - EXTENSION OF TERM
39.01 Tenant shall have the option (the "Renewal Option") to extend the
Term for two (2) additional
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periods of ten (10) years each (the "Renewal Terms"), shall (i) commence on the
original Expiration Date and end on the date preceding the tenth (10th)
anniversary of the original Expiration (the "First Renewal Term"), and (ii)
commence on the date immediately succeeding the last day of the First Renewal
Term and end on the date preceding the twentieth (20th) anniversary of the
original Expiration Date (the "Second Renewal Term") provided that (a) this
Lease shall not have been previously terminated and (b) no material Event of
Default shall have occurred and be continuing as of the date Tenant shall give
the Renewal Notice (hereinafter defined). Each Renewal Option may be exercised
with respect to the entire Demised Premises only and shall be exercisable by
Tenant delivering to Landlord written notice (the "Renewal Notice") of Tenant's
election to exercise the applicable Renewal Option at least nine (9) months
prior to the original Expiration Date with respect to the First Renewal Term,
and at lease nine (9) months prior to the tenth (10th) anniversary of the
Commencement Date with respect to the Second Renewal Term. Upon the giving of
the Renewal Notice with respect to the Second Renewal Term, Tenant shall have no
further option or right to extend the Term. If Tenant exercises a Renewal
Option, the Renewal Term with respect to which Tenant shall exercise the Renewal
Option shall be on the same terms, covenants, and conditions as those contained
in this Lease, except (i) the Fixed Rent payable for the Demised Premises during
each Renewal Term shall be determined as provided in Section 39.03 hereof, and
(ii) the provisions of Section 39.01 hereof with respect to Tenant's right to
renew the Term of this Lease shall not be applicable during the Second Renewal
Term. It is expressly understood that during the First Renewal Term that Tenant
shall have the right as set forth in Section 39.01 only with respect to the
Second Renewal Term, that during the Second Renewal Term Tenant shall have no
further right to renew this Lease.
39.02 If Tenant exercises the Renewal Option applicable to the First
Renewal Term or the Second Renewal Term, as the case may be, the Fixed Rent for
the Demised Premises shall be an amount equal to the Fair Market Rent
(hereinafter defined), determined in accordance with Article 40 hereof, for the
Demised Premises.
39.03 If, for any reason whatsoever, the Fair Market Rent shall not
have been determined pursuant to Article 40 hereof by the commencement of the
First Renew-
58
62
al Term or Second Renewal Term, as the case may be, the Tenant shall pay to
Landlord in monthly installments until such determination, on account of the
Fixed Rent, an amount equal to the Fixed Rent in effect on the date immediately
prior to commencement of the First Renewal Term or Second Renewal Term, as the
case may be. Following the final determination of Fair Market Rent, a
reconciliation shall be made as follows: if the monthly installments of Fixed
Rent determined pursuant to this Article 39 are more than the amounts Tenant had
paid therefor, Tenant shall pay to Landlord within ten (10) days of such
determination the amount of such underpayment of Fixed Rent due.
ARTICLE 40 - DETERMINATION OF FAIR MARKET RENT
40.01 For purposes of this Lease the term "Fair Market Rent" shall mean
the annual fair market rental value of the Demised Premises determined as if the
Demised Premises were available in the then rental market for comparable
buildings in the northern New Jersey metropolitan area on the terms of this
Lease and assuming that Landlord has had a reasonable time to locate a tenant
who rents with the knowledge of the uses permitted pursuant to this Lease, and
that neither Landlord nor the prospective tenant is under any compulsion to
rent, and taking into account: (i) tenant is required to pay the Operating
Expenses; (ii) the remaining Term of this Lease and any remaining' Renewal Term,
as well as the portion of the Term then elapsed; (iii) the fact that the tenant
is the sole tenant; (iv) the fact that Landlord will not be obligated to perform
any work in the Demised Premises to prepare the same for Tenant's occupancy or
to contribute or to loan any money on account thereof whether in the form of
rent, credit, cash or otherwise.
40.02 The Fair Market Rent shall be determined on the basis set forth
in Section 40.01 of this Article and with the assumption that the tenant need
not perform any work in order to occupy the Demised Premises for the conduct of
business.
40.03 Landlord shall give Tenant written notice (the "Rent Notice")
setting forth Landlord's determination of the Fair Market Rent (the "Landlord's
Determination"). Such notice will be sent not later than forty-five (45) days
after receipt by Landlord of each of the Renewal Notices.
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63
40.04 Tenant shall give Landlord written notice ("Tenant's Notice"),
within forty-five (45) days after Tenant's receipt of the Rent Notice, as to
whether Tenant accepts or disputes Landlord's Determination or any portion
thereof. If Tenant in Tenant's Notice accepts Landlord's Determination, or if
Tenant fails or refuses to give Tenant's Notice as aforesaid, Tenant shall be
deemed to have accepted Landlord's Determination. If Tenant in Tenant's Notice
disputes any portion of Landlord's Determination, Tenant shall deliver to
Landlord together with Tenant's Notice, Tenant's determination of the Fair
Market Rent of the portion of the Demised Premises for which Tenant disputes
Landlord's Determination (the "Tenant's Determination"); simultaneously
therewith Tenant shall notify Landlord of an individual ("Tenant's Advisor")
selected by Tenant to act on its behalf for the purposes of this Article 40.
40.05 Landlord shall give Tenant written notice ("Landlord's Notice")
within ten (10) business days of after Landlord's receipt of Tenant's
Determination, as to whether Landlord accepts or disputes Tenant's
Determination. If Landlord in Landlord's Notice accepts Tenant's Determination
or if Landlord fails or refuses to give Landlord's Notice as aforesaid, Landlord
shall be deemed to have accepted Tenant's Determination. If Landlord in
Landlord's Notice disputes Tenant's Determination, Landlord shall in such Notice
advise Tenant of the name of an individual ("Landlord's Advisor") selected by
Landlord to act on its behalf for the purposes of this Article 40. If within
twenty (20) days after Tenant's receipt of Landlord's Notice, Landlord's Advisor
and Tenant's Advisor shall mutually agree upon the determination ("Mutual
Determination") of the Fair Market Rent, their determination shall be final and
binding upon the parties. If Landlord's Advisor and Tenant's Advisor shall be
unable to reach a Mutual Determination within said twenty (20) day period, both
of the advisors shall jointly select an independent real estate appraiser (the
"Appraiser") whose fee shall be borne equally by Landlord and Tenant. In the
event that Landlord's Advisor and Tenant's Advisor shall be unable to jointly
agree on the designation of the Appraiser within five (5) days after they are
requested to do so by either party, then the parties agree to allow the American
Arbitration Association or any successor organization to designate the Appraiser
in accordance the rules, regulations and/or procedures of the American
Arbitration Association or suc-
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64
cessor organization then obtaining with respect to real estate valuation
disputes.
40.06 The Appraiser shall proceed to determine the Fair Market Rent in
accordance herewith. The two determinations of the Advisors and the Appraiser
which are closest shall then be averaged and such averaged amount shall be
conclusive and binding upon Landlord and Tenant. Each party shall pay its own
counsel fees and expenses, if any, in connection with any arbitration under this
Article 40, including the expenses and fees of any Advisor selected by it in
accordance with the provisions of this Article 40. The Appraiser appointed
pursuant to this Article 40 shall be a real estate appraiser with at least ten
(10) years experience in the leasing of office space in, and valuation, of
properties which are similar in character to the Building, a member of the
American Institute of Appraisers of the National Association Real Estate Boards
or successor organization and a member of the Society of Real Estate Appraiser
or its successor organization. Neither the Appraiser nor the Advisors shall have
the power to add to, modify or change any of the provisions of this Lease.
40.07 If the Fair Market Rent shall be finally determined to be in
excess of five percent (5%) greater than Tenants' Determination, then Tenant,
within ten (10) days after receipt of the final determination may notify
Landlord of its election not to renew the Term, in which event, Tenant shall be
deemed not to have exercised the applicable Renewal Option and this Lease and
the Term shall expire as if such applicable Renewal Option had not been
exercised.
40.08 It is expressly understood that any determination of the Fair
Market Rent pursuant to this Article 40 shall be based upon the criteria stated
herein.
40.09 Anything herein to the contrary notwithstanding, the Fair Market
Rent shall not be less than the Fixed Rent payable immediately prior to the
commencement of the Renewal Term in question.
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65
40.10 After final determination has been made of Fair Market Rent for
any purpose of this Lease, the parties shall execute and deliver to each other
an instrument setting forth the amount thereof and the amount of Fixed Rent
payable as a result of such determination; provided, however, that failure to
execute such supplementary agreement shall not affect the determination of Fixed
Rent.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease
as of the day and year first above written.
Landlord:
XXXXX-PW LIMITED PARTNERSHIP
By: Xxxxx Mountain
Industries,
general partner
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Xxxxxx X. Xxxxx, Vice President
Tenant:
PAINEWEBBER INCORPORATED
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, Senior Vice President
62
66
Exhibit "A"
Building
The proposed Data Processing Center is to be the renovated existing Seatrain
Building, in the Lincoln Harbor Project. The existing building consists of four
floors, designated as Ground, Mezzanine, First and Second.
A-1
67
Exhibit "B"
Fixed Rent
The Fixed Rent during the Term, subject to adjustment as provided in
this Lease, shall be determined as follows:
(a) Commencing on the Fixed Rent Commencement Date and terminating on
the day prior to the nineteenth (19th) anniversary of the Fixed
Rent Commencement Date, the Fixed Rent shall be equal to the sum
of (i) the Base Amount (as defined below), and (ii) 18.87% of debt
service* per annum (principal and interest) under the Mortgage.
The percentage of debt service for the Mortgage shall be
determined by dividing (x) the Floor Space Premises by (y) the
floor space upon which the Mortgage is based (140,768/745,926 =
.1887). Debt service shall be determined by using a debt service
constant not to exceed 11.979.
Years commencing on the
Fixed Rent Commencement Date "Base Amount" Per Year
---------------------------- ----------------------
1-4 $ 133,930.00
5-9 $ 244,603.00
10-14 $ 666,961.00
15-19 $1,230,105.00
(b) Notwithstanding the foregoing, in no event shall the Fixed Rent
(inclusive of the "Base Amount") per square foot exceed
---------------
* The stated percentage is predicated upon there being one (1) mortgage
covering both the Ground Lease and the Agreement of Ground Lease, dated of
even date herewith, between Fee Owner, as landlord, and Landlord, as
tenant, for the premises known as Operations Center and the Data Processing
Center, respectively. In the event that a separate mortgage is obtained in
connection with each such leasehold estate this Exhibit shall be amended
accordingly.
B-1
68
$11.97 for years 1-4, $13.47 for years 5-9, $16.47 for years
10-14, or $20.47 for years 15-19.
(c) Commencing on the twentieth anniversary of the Commencement Date
and terminating on the original Expiration Date, the Fixed Rent
shall be an amount equal to the lesser of (x) the Fair Market
Rent, determined in accordance with Article 40 hereof and (y) the
product of the Floor Space and Forty-Two and 45/100 Dollars
($42.45), but in no event less than the Fixed Rent payable
during the twentieth (20th) year of the Term.
Promptly after the closing of the Mortgage and upon each occasion of
redetermination of Fixed Rent, as provided in this Lease, the parties hereto
shall prepare and execute a revised schedule of such redetermined Fixed Rent.
X-0
00
Xxxxxxx "X"
Xxxxx Space
As to a demised premises, the sum of the floor area stated in square
feet bounded by the exterior faces of the exterior walls, or by the exterior or
common areas face of any wall between the premises and any portion of the common
areas, or by the center line of any wall between the premises and space leased
or available to be leased to another tenant or occupant. Any reference to floor
space of a building shall mean the floor area of all levels or stories of such
building, excluding any roof, except such portion thereof as is permanently
enclosed, and including any interior basement level or mezzanine area not
occupied or used by a tenant on a continuing or repetitive basis, and any
mechanical room, enclosed or interior truck dock, interior common areas, and
areas used by a landlord for storage, for housing meters and/or other equipment
or for other purposes. Any reference to the floor space is intended to refer to
floor space of the entire area in question irrespective of the person(s) who may
be the owner(s) of all or any part thereof.
C-1
70
Exhibit "D"
Land
PROPOSED BLOCK 34C LOT 4.02
TOWNSHIP OF WEEHAWKEN
XXXXXX COUNTY, NEW JERSEY
Commencing at a point in the easterly line of Park Avenue, said point
being N 21 degrees-21'-30"E, 1129.16 feet along the same from its intersection
with the northerly line of 15th Street, all as shown on a map entitled
"Subdivision of Lincoln Harbor Block 34C Xxxx 0, 0-0, 0 xxx Xxxxx 00X Xxx 0X,"
and prepared by Xxxxxxxx & Xxxxx Engineering Company, dated February 26, 1986,
revised to March 19, 1986, and running; thence,
A) N 21 degrees-21'-30" E, 86.70 feet along said property line to a point
on curve; thence,
B) Northeasterly, along the property line on a curve to the left having a
radius of 1093.01 feet, said radial having a bearing of N 14
degrees-11'-23" W, through a central angle of 25 degrees-01'-56", an
arc distance of 477.53 feet; thence,
C) Departing said property line, S 7 degrees-48'-45"E, 55.40 feet to the
point of beginning; thence,
1) N 38 degrees-28'-38"E, 476.59 feet to a point of nontangency;
thence,
2) Southeasterly, along a curve to the right having a radius of 360.00
feet through a central angle of 16 degrees-55'-38", an arc distance
of 106.36 feet; thence
3) S 51 degrees-07'-50"E, 188.34 feet to a point of curvature;
thence,
4) South and southwesterly on a curve to the right having a radius of
40.00 feet through a central angle of 90 degrees-00'-00", an arc
distance of 62.83 feet; thence,
5) S 38 degrees-52'-10"W, 51.43 feet to a point of
D-1
71
curvature; thence,
6) Southwesterly, on a curve to the right having a radius of 328.57
feet through a central angle of 34 degrees-09'-59", an arc distance
of 195.93 feet; thence
7) S 38 degrees-28'-38"W, 15.35 feet; thence,
8) S 73 degrees-55'-33"W, 16.49 feet; thence,
9) S 83 degrees-28'-38"W, 262.43 feet; thence,
10) N 51 degrees-31'-22"W, 79.53 feet to the point or place of
beginning.
Containing 127,537 square feet (2.93 acres).
D-2
72
[SURVEY OF SUBDIVISION OF LINCOLN HARBOR]
73
Exhibit "E"
Landlord's Work
E-1
74
XXXXX XXXXXX
--------------------------------------------------------------------------------
LINCOLN HARBOR FEASIBILITY STUDY
DATA CENTER
--------------------------------------------------------------------------------
XXXXXXXX, XXXXXX & XXXXXXX
XXXXX, XXXX & XXXXXX
XXXXXX / XXXXXXXX
REVISED 31 OCTOBER 1985
REVISED 14 NOVEMBER 1985 BY XXXXX MOUNTAIN INDUSTRIES, INC.
75
Qualifications for Data Center
Raised Flooring: 2' x 2' steel panels 24" high with high
pressure laminate finish, pedestals interconnected
with stringers, grounded. Severn Model 50 1000 lbs.
point load by Xxxx Corporation or approved equal.
2' x 2' cement filled steel panels 8" high
pedestals interconnected with stringers, grounded.
Severn Model 54 1000 lbs. point load by Xxxx
Corporation or approved equal. Carpet tiles are 18" x
18" 22oz. level loop clefin under 1KV antistatic
synthetic fiber or approved equal.
Vinyl Composition Tile: 12" x 12 " x 1/8" Kentile architectural
series or approved equal.
Ceilings: 2' x 2' suspended acoustical ceiling tile.
Xxxxxxxxx minaboard fissure lay-in system or
approved equal.
Resin Membrane: Resin matrix traffic bearing waterproofing
membrane. Vulkin 350 - 351 2-part system by Memeco or
approved equal.
Partition Walls: Xxxxx has not included any partition walls
because the size or number of offices have not been
determined, however, PaineWebber can budget
partitions as follows.
A. 3 5/8" metal studs 2'o.c., 5/8" gypsum board both
sides 9'-0" high with two coats latex paint
@ $3.40/sq.ft.
B. 3 5/8" metal studs 2'o.c., 5/8" gypsum board both
sides 13' high with two coats latex paint
@ $3.75/sq.ft.
C. Aluminum framed glass partitions based on X.X.
Xxxxx series #200 9' A.F.F. @ 106/L.F.
76
CONTENTS
I. PROJECT DESCRIPTION
II. SITE DEVELOPMENT
III. EXTERIOR ENCLOSURE
IV. INTERIOR
V. STRUCTURAL
VI. VERTICAL TRANSPORTATION
VII. MECHANICAL
VIII. PLUMBING
IX. FIRE PROTECTION
X. ELECTRICAL
XI. SCHEMATIC DESIGN
ALTERNATE 1
ALTERNATE 2
77
I. PROJECT DESCRIPTION
A. The proposed Xxxxx Xxxxxx Data Center is to be the renovated existing
Seatrain Building, in the Lincoln Harbor Development Weehawken, New
Jersey. The existing building consists of four floors, designated as
ground, Mezzanine, First and Second. The proposed renovation includes:
the replacement of the roofing, the removal of a section of the
mezzanine to accommodate new generators, as required by the Data
Center, and the elimination of the North Entrance. (Main Employee
Entrance to be from the south parking lot, the Visitor Entrance to be
from the east side of the building).
Also included are the following alternatives:
Alternate 1 - removal and required structural patching of the
existing skylight.
Alternate 2 - the repair of the existing skylight and the
increased structural loading of the mezzanine to accommodate
computer equipment.
The items excluded from the Landlord's obligation are: the computer
and telecommunications equipment as well as the Voice and Data
cabling.
In addition to the requirements described herein, the renovation of
the building and all related facilities shall be in conformance with
the most recent editions of all applicable codes, standards,
specifications and regulations.
- 1 -
78
II. SITE DEVELOPMENT
Information not included at this time.
- 2 -
79
III. EXTERIOR ENCLOSURE
A. Glazing System: Double glazing along the perimeter on the first and
second floors in the computer room area. Glazing system to provide
thermal break at mullions and to prevent condensation at all times, as
well as maintain an RH of 50%.
B. Roofing: Remove existing roofing to the slab. Replace with new
insulated membrane roof, consisting of roofing aggregate ballast or
cast-in-place concrete over water pervious membrane over extruded
expanded polystyrene insulation having a "U" value of 0.08 BRU/sq.
ft./degree F. or better, over a fluid-applied membrane waterproofing.
C. Wall Louvers: Continuous type, stormproof, of extruded aluminum
sections with either hardcoat anodized finish or resinous ("Kynar
coated of selected color, to match glazing enframement. Louvers to
have bird screens and insulated blank-off panels. Louvers to be added
to the west facade on both the ground and mezzanine floors at the
generator area.
- 3 -
80
IV. INTERIOR
A. Main Entrance and Visitor Lobbies
1. Floors: To be determined
2. Walls: To be determined
3. Ceilings: Gypsum wallboard
4. Lighting: Recessed incandescent.
B. Typical Floor Elevator Lobbies
1. Floors: Steel troweled concrete sealed for dustproofing.
With carpet tile
2. Walls: Vinyl wallcovering.
3. Ceilings: Gypsum wallboard.
4. Lighting: Incandescent.
C. General Office Area
1. Floors: Access floor consisting of 2' x 2' cement filled steel
panels 8" high pedestals interconnected with stringers, grounded.
Provide high quality modular carpet tiles of anti-static
synthetic fiber.
2. Column Enclosures: 5/8" gypsum wallboard attached to metal
furring secured to the underside of construction above, painted
as required. Fire rated as required.
3. Walls: Metal stud and gypsum wallboard partitions to underside of
construction above. Painted finish with resilient wall base.
Aluminum framed glass partition system with baked on paint finish
with flush wood doors maximum 9'-0" high, for perimeter office
walls parallel to the exterior wall.
Perimeter Walls: Remove existing indication units and enclosures.
Install new convectors and architectural convector enclosures.
4. Ceiling: Fully accessible, 2' x 2' acoustical tile.
5. Lighting: Recessed parabolic fluorescent fixtures - size to be
determined.
6. Window Treatment: Perimeter windows with 1" slat venetian blinds.
- 0 -
00
X. Xxxxxxxx Xxxx
0. Floors: Access floor consisting of 2' x 2' steel panels 24" h.
with high pressure laminate finish, pedestals interconnected with
stringers, grounded.
2. Column Enclosures: 5/8" gypsum wallboard attached to meet furring
secured to the underside of construction above, painted as
required. Fire rated as required.
3. Walls: Same as C.3, in addition.
Partitions to extend from slab to underside of structure at
perimeter of halon zones or perimeter of controlled environment.
Partitions separating humidity controlled areas from
non-controlled areas to receive blanket insulation with foil
vapor barrier. Curtain wall at these levels is to receive 22
gauge galvanized steel vapor barriers in lieu of typical foil.
4. Ceiling: Fully accessible 2' x 2' mineral fiber acoustical tile.
Alternate: For Alternate 1 - (Computer Area on 2nd floor).
Provide a resin matrix traffic bearing waterproofing membrane for
penthouse space above computer area.
5. Lighting: Same as C.5.
E. Equipment Area
1. Floors: Steel troweled concrete, sealed for dustproofing, vinyl
composition tile finish.
2. Walls: Concrete masonry unit or metal stud and gypsum board
partitions to underside of construction above. Heavy duty painted
finish. Epoxy paint in wet areas.
3. Ceilings: Gypsum wall board or mineral fiber acoustical tile.
4. Lighting: Strip fluorescent fixtures, suspended or surface
mounted.
F. Doors, Frames and Hardware
1. Doors: Flush, hollow metal, 1-3/4" thick, 18-gauge at interior,
16-gauge galvanized at exterior, ceiling high, width as required,
factory prime, field painted, labeled at rated walls and
partitions. Provide vision panel in all service vestibule doors.
2. Frames: Welded hollow metal, 16-gauge at interior, 14-gauge
galvanized at exterior size as required, factory prime, field
painted, labeled at rated walls and partitions.
- 5 -
82
3. Hardware: Mortise locksets with lever handles, ball bearing
hinges and parallel arm closers; polished stainless steel finish.
G. Telephone and Electric Closets
1. Floors: Access floors consisting of 2' x 2' steel panels with
high pressure laminate finish at the same height as the
surrounding floor.
H. Security
Security provisions including, but not limited to: electronic hardware
connected to life safety system and/or building security such as
contact switches, electric locks, electric strike release, electric
hold-open devices, cameras, card readers and intercoms connected to a
central security station - location to be determined.
This item is vague and has not been priced and is not the obligation
of Xxxxx.
- 6 -
83
V. STRUCTURAL
A. Structural Evaluation: The primary structural system is composed of a
reinforced concrete flat slab first floor and upper floors framed in
structural steel rolled sections. The recent additions of a mezzanine
between the ground floor and first floor and on infill slab below the
skylight are framed in steel open web bar joists.
The first floor slab was designed for a superimposed live load of 100
psf. Although flat slab construction is extremely difficult to modify
after it is cast, i.e. reinforce for additional loading capacity or
add significant vertical penetrations, it is expected that this floor
could be a serviceable floor for data center applications.
The upper floors were evidently designed for a superimposed loading of
50 psf live load plus 20 psf partition allowance - the code minimum
loading for office occupancy. This loading is generally low for a data
center application. The floor framing (and columns, if required) could
be locally reinforced for specific loading conditions and/or equipment
could be placed within the constraints of the system. Flexibility
through the life of the building would be restricted unless there was
a general reinforcement of the floor to approximately 100 psf.
The areas which have been recently added are also evidently designed
for the 50+20 psf loading. These floors will be extremely difficult to
reinforce and use for occupancy other than general office.
Penthouse floor framing is designed for 200 psf which is generally
appropriate for a mechanical penthouse.
B. Structural recommendation: Specifics to be determined pending analysis
of existing structures.
- 7 -
84
VI. VERTICAL TRANSPORTATION
A. Existing Elevators: Cabs to be renovated, finishes to be determined.
Primary use to be for passengers, occasional service use.
B. Additional Elevator: Study to be done to determine need for additional
passenger elevator.
- 8 -
85
VII. HEATING, VENTILATING & AIR CONDITIONING
A. Refrigeration Plant:
1. Provide two (2) 225 TR cooling/300 TR heating heat recovery
machines. Carrier "HR" machines as std. In addition, provide
two (2) 500 TR hermetic straight cooling machines. Initial total
cooling load required is 1000 TRS & ultimately is 1400 TRS.
2. Provide three (3) chilled water pumps at 450 gpm each vs. 120' of
head with 25 HP motors each; one pump is a stand-by. Provide
three (3) additional chilled water pumps at 1000 gpm each vs.
120' of head with 60 HP motors each; one pump is a stand-by.
3. Provide three (3) condenser water pumps at 675 gpm each vs. 140'
of head with 50 HP motors each; one pump is a stand-by. Provide
three (3) additional condenser water pumps at 1500 gpm each vs.
140' of head with 100 HP motors each; one pump is a stand-by.
4. Provide three (3) secondary chilled water pumps at 1150 gpm each
vs. 120' of head with 60 HP motors each; one pump is a stand-by.
5. Provide a plate & frame heat exchanger for secondary chilled
water and condenser water free cooling. Secondary chilled water
sized for 2300 gpm., 60 degrees F ENT. H2O with 50 degrees F
LVG H2O and condenser water flow of 3000 gpm with 48 degree F
ENT. H2O and 56 degrees LVG. H2O.
6. Provide four (4) Marley as standard. Series 8900 NC-11 cooling
tower cells. Each cell size 8916. Towers to be provided with
stainless steel basins and sumps and non-combustible fill. All
cells to be winterized. Motor horsepowers are 40 HP each. Motors
to be two-speed, reversing type.
B. Computer Room Packaged Air Conditioning Units
1. For each computer floor (floors 1 & 2) provide (35) units per
floor (total of 70). Piping distribution for these floors shall
be sized for future units. Future growth will require (52) units
per floor (total of 104). Each computer floor unit shall be
Liebert as std. "Deluxe System/3" chilled water units. Each unit
shall be FH248C, 120,000 BTUH sensible @ 72 degrees db, 45% RH
room. Units to be provided with electric humidification & no
reheat.
- 9 -
86
2. For the UPS, 5kv switchgear room, incoming and emergency
switchgear room, and the substation rooms provide a total of (19)
units initially for these rooms with the distribution piping
sized for (26) units ultimately. Each unit shall be Liebert as
std. "Deluxe System/3" chilled water unit, model No. UH248C.
Units shall not contain humidifiers, nor reheat.
C. Heating Plant & Distribution
1. Provide one (1) 100 BHP Scotch Marine type fire tube boiler to
serve as a stand-by or back-up to heat recovery machines. Boilers
shall be dual fuel fired (natural/gas No. 2 oil). Provide two (2)
circulation pumps sized at 375 gpm vs. 60' of head each with 15
HP motors.
2. Heat pump hot water shall be distributed to heat building via
convectors located at the sill of the windows on each floor.
Convectors shall be located around the entire perimeter of each
floor of the building. Convectors shall be two (2) rows high.
Allow .8 linear feet of convectors for each linear foot of
exterior wall. Convectors shall be copper tube aluminum fin
1-1/4" tube with 4-1/4 x 4-1/4" fin, 40 fins/per foot. Provide
architectural convector enclosures.
D. Air Conditioning Systems
1. Provide two (2) 100% outside ventilation systems for computer
rooms. One located at the east end of penthouse the other at the
west end. Systems shall provide conditioned air (cooled in
summer, tempered & humidified in winter) to the computer floors
(1st & 2nd floors). Systems shall be 5000 CFM each with 7-1/2 HP
motors. Each system shall be provided with a packaged electric
steam generator for humidification. Steam generators shall have a
capacity of 200 lbs/hr for each system.
2. Provide two (2) packaged air conditioning supply air systems to
serve the ground floor and mezzanine floor office and lobby
spaces. These supply air systems shall have associated return air
fans. Systems will be variable air volume type. Systems will be
35,000 CFM each. The supply fan motors will be 60 HP and the
return air fans will be 25 HP. The supply air and return air will
be ducted to the two (2) floors served via four (4) riser points
with duct takeoffs at each riser point at each floor served. The
return air fans for these floors will also be used as the halon
purge fans from the computer floors. The supply fans will also
serve as purge makeup to the computer floors. This will be
accomplished through a series of damper sequencing.
- 10 -
87
E. Emergency Generator Ventilation System
1. Provide five (5) tubular centrifugal general exhaust fans hung
above the generators in the generator room on the ground floor.
Each fan will be sized for 125,000 CFM with a 50 HP motor. Sound
traps shall be provided on each fan discharge. Discharge will be
through the west facade. The intake ventilation air will also
enter through the west facade (low) through a plenum, ALD's and
sound traps. Note: The entire west elevation at the present
ground floor and mezzanine floor is required to be louvered for
ventilation air intake & discharge.
F. Fuel Oil System
1. Provide a system of fuel oil storage and distribution for the
emergency generator plant. Provide two (2) buried fiberglass fuel
oil storage tanks of 25,000 gallons capacity each. Fuel oil
storage will provide for two days operation at full load based
on ultimate generator plant capacity of six (6) engines running
at 1,400 kw. each (8,400 kw. total).
G. Automatic Temperature Controls:
1. The building control system shall be, in general, a pneumatic
system. Building automation system shall be an electronic
microprocessor based system employing direct digital control
technology. Each main air handling system and each water system
shall be provided with a separate DDC cabinet.
2. System shall be able to start and stop all equipment remotely and
monitor and reset from a remote location air system supply air
temperatures, outside air temperatures, fan discharge
temperature, return air temperatures, supply and return
temperatures of all water systems with reset of supply water
temperatures. In addition to points required for the operations
building allow five hundred (500) points for data center.
3. System shall provide alarms for all off-normal conditions and
status of remotely controlled motors by either pressure or flow
switches.
4. System graphics shall be provided for each system.
5. System shall remotely control each supply air and each return air
automatic damper in the duct taps at each floor from a central
location both for part load operation and smoke control.
- 11 -
88
6. Provide a duplicate operations console (color CRT, alarm printer,
logging printer, etc.) at data center in addition to that
required at operations center.
H. Demolition
1. Remove all existing heating ventilating equipment, piping and
ductwork.
- 12 -
89
VIII. PLUMBING
A. Demolish existing plumbing associated with toilet rooms on the 1st
and 2nd floors.
B. Provide new plumbing fixtures on 1st and 2nd floors and connect to
existing plumbing piping. Provide the following number of fixtures.
MEN WOMEN
--------------------------------------------------------------------------------
1. 1st Fl. 1-SS 1-DF 1-WC 1-UR 1-LAV 2-WC 1-LAV
2. 2nd Fl. 1-SS 1-DF 1-WC 1-UR 1-LAV 2-WC 1-LAV
C. Plumbing fixtures shall be:
1. WC - water closets, American Standard "AFWALL" 2477.016,
vitreous china siphon jet, elongated quiet action wall hung,
with Xxxxx Royal No 11DYC "Continental", complete with carrier
and seat.
2. UR - Urinals, American Standard "Trimbrook" 6560.015, vitreous
china siphon jet wall hung urinal with Xxxxx Royal 186-11YC
quiet action flush valve, complete with carrier.
3. LAV - Lavatories, American Standard "Roxalyn 0194.076, 8 inch
center 20" x 18" vitreous china lavatory with 2248.516-BR
6313-02 chrome plated brass lever handles, complete with aerator
on spout, supplies and carrier.
4. SS - Slop sink, American Standard "Akron" 7696.016, 24" x 20"
cast iron acid resisting enameled service sink with 3" standard
trap, wall hanger and 8344.111 exposed wall mounted faucet.
5. DF - Drinking Fountain, Elkay electric water cooler, barrier
free, Model ERHP-2-8, wall hung stainless steel fountain
complete with mounting box.
D. Materials
1. Waste and vent piping shall be service weight cast iron no-hub,
with no-hub fittings.
2. Water piping shall be copper type "L" with 95-5 solder joint
sweat end fittings. Insulate all water piping with 1/2 inch
fiberglass insulation.
3. Provide valves as required and match existing.
- 13 -
90
XI. FIRE PROTECTION
A. The building will be fully sprinkled other than the electric
switchgear room, elevator machine rooms, UPS and battery rooms.
Computer room protection shall be as described herein.
B. All sprinkler systems will be hydraulically calculated. In general,
spaces will be light hazard, calculated to .10 GPM/sq. ft. over 1500
sq. ft. Ordinary hazard areas such as storage will be calculated to
.16 GPM/sq.ft. over 1500 sq. ft.
C. The sprinkler systems will be extended from the existing 6 inch
sprinkler main at the ground floor level. The supply to each system
will be provided with a shut-off valve (with tamper switch), paddle
water flow detector, drain valve and sight glass connecting to a drain
riser.
D. All sprinkler control valves and alarms will be supervised and will
annunciate at the fire control panel.
E. The UPS rooms and battery rooms will be protected by total flooding
Halon 1301 fire suppression systems. Provide two complete separate
systems; one for each UPS room and its associated battery room. Each
smoke detection system will be "cross-zoned" with four detection zones
per system.
The Halon system shall be a main-reserve central storage type, and
will be piped to nozzles in the area.
F. Provide the following individual fire protection systems for the 1st
and 2nd floor computer rooms:
1. Base System Provide a "fire cycle" on-off type sprinkler system
as manufactured by the Viking Corp. The system will be complete
with control panel, valve trim panel, special water control
valve, thermal detectors, fire cycle cable, batteries and air
compressor panel.
The system will be a recycling type, which automatically shuts
the water off when the fire has been extinguished. The system
will sense a fire condition through a thermal detection system
which causes the special water control valve to open or close.
The detection system will re-open the control valve if the fire
rekindles. The piping system will use air-pressure (1-1/2 - 2
PSI) to monitor the piping.
Provide a total flooding Halon 1301 fire suppression system for
the computer room underfloor area. Provide a "cross-zoned"
detection system in the underfloor and a single zone on the
ceiling. Operation of the ceiling detectors will transmit an
alarm only. Operation of the underfloor "cross-zoned" detectors
will cause discharge of the Halon system.
- 14 -
91
The Halon system shall be a "single shot" central storage type
and will be piped to nozzles in the underfloor area.
a. Alternate No. 1: Provide a "fire cycle" on-off sprinkler
system same as base scheme.
Provide a total flooding Halon 1301 fire supression system
for the computer room and underfloor area. Provide
cross-zoned detection on the ceiling and the underfloor area
(four zones). Operation of the underfloor detection system
will cause discharge into the underfloor only. Operation of
the ceiling detection system will cause discharge of Halon
into the room and underfloor.
The Halon System shall be a "single-shot", central storage
type and piped separately to the ceiling and underfloor
nozzles.
b. Alternate No. 2: Provide a total flooding Halon 1301 system
for the computer room and underfloor area. Provide
cross-zoned detection system as alternate no. 1.
The Halon system shall be a main-reserve, central storage
type piped the same as alternate no. 1. The reserve shall be
connected and will be of same capacity as main.
X. Xxxxx Systems
1. All Halon 1301 systems will be complete with a central control
panel, graphic annunciator panel for ceiling and underfloor
detectors, emergency standby batteries, ionization type smoke
detectors, alarm bells, horns, and lights, interfacing relays for
HVAC and computer power shut down, manual release stations,
conduit and wires, Halon storage containers and piping, complete
and ready for operation. System will provide a 6% concentration.
2. Each system shall be capable of signaling an alarm prior to the
development of visible smoke due to a fire condition. The system
will provide audible and visual annunciation at the central
control panel and throughout the protected area. The system will
be provided with timed-delayed abort switches and discharge delay
timers. The entire system shall be electrically supervised.
3. The entire detection and Halon 1301 systems shall be provided
under the responsibility of one contract.
4. Halon 1301/smoke detection equipment shall be Fenwal,
Pyrotronics, Ansul or Kidde.
5. Provide Halon for the various schemes in the following amounts:
- 15 -
92
HALON 1301 QUALITY REQUIREMENTS
COMPUTER ROOMS AREA FT(2) VOL FT.(3) LBS. HALON REQ. 5%
-------------- ---------- ---------- ------------------
Base Scheme
1st fl. Computer Room U/F 32,800 65,600 1,640
2nd fl. Computer Room U/F 32,800 65,600 1,640
Alternate No. 1
1st fl. Computer Room 295,200 7,380
1st fl. Computer Room U/F 65,600 1,640
2nd fl. Computer Room 32,800 295,000 1,640
2nd fl. Computer Room U/F 65,600 7,380
Alternate No. 2
1st fl. Computer Room 7380 MAIN + 7380 RES
1st fl. Computer Room U/F 1640 + 1640
2nd fl. Computer Xxxx 0000 + 7380
2nd fl Computer Room U/F 1640 + 1640
UPS & Battery Rm. #1 2500 30,000 750 MAIN + 750 RES
UPS & Battery Rm. #2 2500 30,000 750 MAIN + 750 RES
- 16 -
93
H. Piping Systems:
1. Fire Standpipe Piping: Black Steel, Schedule 40 pipe, ASTM
A120-73 or ASTM A53-73.
2. Sprinkler Piping:
a. One Inch to Three Inch: Black steel, Schedule 40 pipe, ASTM
A120-73 or ASTM A53-73.
b. Four Inch to Six Inch: Black steel, ASTM A120-72a or ASTM
A53-72a, thin wall pipe, with minimum wall thickness .188
inch.
3. Fittings for Fire Standpipe System: Screwed, standard weight cast
iron fittings, UL approved for fire service.
4. Fittings for Sprinkler Systems:
a. One Inch to Three Inch: Screwed, standard weight cast iron
fitting, UL approved for fire service.
b. Four Inch to Six Inch: Mechanical groove couplings (complete
with housing, gasket, nuts and bolts), Victaulic Standard
Style 77, with grooves rolled on the pipe by an approved
groove rolling machine.
5. Victaulic couplings (Standard Style 77) may be used in lieu of
iron fittings.
6. Halon 1301 Piping: Black steel, Schedule 40 pipe, ASTM A53-73.
7. Fittings for Halon 1301 Piping: Malleable iron, 300 pounds, ASTM
A197.
8. Alarm Devices: All alarm panels, gongs or other alarm receiving
devices and all inter Connecting electrical wiring will be
furnished under the Specifications of other Trades, except Halon
system alarms, wiring and panels, which shall be provided by this
Contractor. Provide all switches directly connected to equipment
provided by this Trade, required for the transmission of alarm
impulses. All water control valves shall be provided with pamper
switches.
17
94
9. Valves: All water control valves within the building shall be
wedge gate valves with painted iron wheel handles, shall have
gland followers in stuffing boxes, constructed so that they may
be repacked while open and under pressure. All valves shall have
the name of the manufacturer and working pressure cast or stamped
thereon. All valves shall be UL approved.
Provide valves as follows:
a. Gate Valves Material W.W.P.
----------- -------- ------
Flanged OS&Y IBBM 175
Screwed (drains, etc.) Bronze 175
b. Check Valves
------------
Flanged IBBM 175
Screwed (drains, etc.) Bronze 200
10. Sprinkler Heads: Provide automatic sprinkler heads of finish as
approved by the Architect. Sprinkler heads in finished areas
shall be cover plate flush type sprinkler heads, Reliable Model
G1 (Concealer), color as selected by the Architect; all other
sprinkler heads shall be Reliable Model G automatic water spray
heads, or as approved.
- 18 -
95
X. Electrical
A. Estimated Demand Load - Data Center
1. Initial - 4300 KW/5060 KVA
2. Ultimate - 6210 KW/7305 KVA
B. Incoming Normal Service - Data Center: 2-4160V, 1200A feeders
from PSE & G
C. Estimated Emergency Loads
1. Initial: 4300 KW Data Center
1990 KW Office Building
----
Total: 6290 KW
2. Ultimate: 6200 KW Data Center
3225 KW Office Building
----
Total: 9425 KW
D. Emergency Generators/Diesel
1. Initial: 5 @ 1400 KW - 4160V output/.8 pf
2. Ultimate: 7 @ 1400 KW - 4160V output/.8 pf
E. 5 KV Switchgear/Input & Generator Output: Electrically operated
draw-out air circuit breakers for service input, generator
output, and paralelling and load transfer per following single
line diagram. Lineup to include generator control cubicles with
automatic start up synchronizing and paralelling equipment,
metering, reverse current relays, etc. Load shedding shall be
accomplished via the energy management portion of the building
automation system. See diagram on following page.
- 19 -
96
GENERATOR SWITCHGEAR SCHEMATIC
[CHART]
- 20 -
97
F. 5 KV Switchgear/Building Distribution: Electrically operated draw-out
air circuit breakers with load break air interrupter isolation
switches for mains and tie per the following schematic.
[CHART]
- 00 -
00
X. Xxxx Xxxxxxxxxxx: Xxxxxxx 0000 fused air interrupter selector switch
with dry type transformer (forced air cooled) 460/265 V secondary with
insulated case circuit breakers with solid state trip units and ground
fault protection on mains, ties and distribution protective devices.
See following schematic.
[CHART]
- 22 -
99
H. Static UPS Systems: Two static UPS systems at 460 volt, 60 Hz. Each
initially sized at 800 KW redundant (3-400 KW modules) expandable to
1200 KW redundant (4-400 KW modules). Each module to be connected to
its own string of lead calcium batteries through a separate battery
disconnect. Batteries to be sized for 15 minutes. Each UPS system
shall be supported by its own switchboard lineup containing module
input and output breakers, static bypass, UPS & system isolation
breakers and maintenance bypass breakers with an output distribution
switchboard section. Each system to contain system control cabinet as
well as remote monitoring panel in computer room.
I. Computer Room Electric Service: 265/460 V feeders to be extended from
UPS distribution switchboards to distribution panels in electric
closets contiguous to data processing area. Distribution panels to
have 225A-3P shunt trip breakers feeding local floor power
distribution units with integral isolation transformer to 120/208 V, 3
phase, 4 wire, and associated secondary panelboards (2 to 3 section).
14-150 KVA PDU's will initially be required with an ultimate of 20
PDU's. Local floor A/C units will be fed from 460 volt panelboards in
same electric closets as PPU distribution panelboards.
- 23 -
100
IX. SCHEMATIC DESIGN
- 24 -
101
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - GROUND FLOOR]
ALTERNATE 1
102
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - MEZZANINE]
ALTERNATE 1
103
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - 1ST FLOOR]
ALTERNATE 1
104
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - 2ND FLOOR]
ALTERNATE 1
105
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - BUILDING SECTION]
ALTERNATE 1
106
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - GROUND FLOOR]
ALTERNATE 2
107
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - MEZZANINE]
ALTERNATE 2
108
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - 1ST FLOOR]
ALTERNATE 2
109
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - 2ND FLOOR]
ALTERNATE 2
110
[SURVEY OF LINCOLN HARBOR FEASIBILITY STUDY - BUILDING SECTION]
ALTERNATE 2
111
BUDGETARY COSTS OF XXXXX XXXXXX DATA CENTER
140,000 Square Feet
All Tenant Work Based on 1986 Prices
ITEM UPGRADE COST
---- ------- ----
Floors (alternate scheme #2) $ 766,800
Ceilings (alternate scheme #2 111,210
Window treatment (alternate scheme #2) 6,750
Halon (base) 352,000
Alternate #1 (add) $ 403,000
Alternate #2 (add) 764,000
Electrical (including credit
for ops. gen. 26,000) 5,339,422
HVAC: to maintain an all 2,310,000
electric building; reuse electric
boilers, perimeter radiation &
heat pump units in non-computer
areas. Balance of building will
comply with JB-B specs.
140,000 sq. ft. @ $16.50
HVAC: as per JB-B outline
and specified design
add $1.39/sq. ft. (add) 194,600
Resin Membrane at penthouse (add) 25,605
Fire protection 135,000
----------
Total $9,021,182
by 140,000 sq. ft./SQUARE FOOT COST $ 64.43
NOTES:
1. If existing HVAC system is used, credit will be given for not wiring
new equipment.
2. If existing 2' x 4' standard lighting fixtures for lower two floors
are used, credit for new parabolics will be given.
3. If alternate layout scheme #1 is used, the up-charge will be $22,000
for floors, ceilings and window treatment.
4. Grounding of access flooring follows operations specification.
- 25 -
112
Exhibit "F"
Loan Terms
PRINCIPAL AMOUNT: $75,000,000
TERM: Minimum 17 years 6 months from
Commencement Date
AMORTIZATION
SCHEDULE: 11.979 constant
INTEREST RATE: 11.25% or less per annum
SECURITY: Senior Leasehold Mortgage,
subordinated fee, no personal
liability
F-1
113
Exhibit "G"
Operating Expense
Tenant is the sole tenant of the Building and Land and is thereby
solely responsible for its operations thereon. In addition, Tenant shall pay the
Operating Expenses (as such term is defined in the Ground Lease) attributable to
the premises demised thereunder.
G-1
114
Exhibit "H"
Plans and Specifications
The Plans and Specifications for Landlord's renovation of the Data
Processing Center are contained in the Exhibit entitled Landlord's Work. In
addition to the Plans and Specifications for Landlord's Work, such Exhibit
includes items in excess thereof, which items are identified as budgeted
amounts, which amounts are based upon the price as of the date hereof, and which
prices are used for estimating purposes only.
In the event Tenant elects to have those budgeted items of Tenant's
Work performed by the Landlord, Tenant shall reimburse Landlord in such amount
for that specific work, increased by such increases, if any, as may occur in
construction or labor costs.
The replacement of the roof required in Sections I and III has been
completed. The Section I removal of mezzanine is no longer required as the
generators are being housed without the Building.
H-1
115
Exhibit "I"
Tenant's Work
Tenant's Work shall consist of that work performed by Tenant in
addition to Landlord's Work to finish the interior of the shell of the Building
to Tenant's requirements.
Within the Landlord's Work Exhibit are items in excess of Landlord's
Work obligation which items are identified as budgeted amounts, which amounts
are based upon the 1986 price and which prices are used for estimating purposes
only.
In the event Tenant elects to have those budgeted items of Tenant's
Work performed by the Landlord, Tenant shall reimburse Landlord in such amount
for that specific work, increased by such increases, if any, as may occur in
construction or labor costs.
I-1
116
Exhibit "J"
Lincoln Harbor Project
J-1
117
[SURVEY OF LINCOLN HARBOR PROJECT]
118
Exhibit "K-1"
Subordination, Non-Disturbance
and Attornment Agreement
THIS AGREEMENT, made as of the ____ day of ____________, 19__, by and
between ___________, a ____________ corporation having an office at
_________________ (the "Mortgagee"), and PAINEWEBBER, INCORPORATED having an
office at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Space
Tenant").
WITNESSETH:
WHEREAS, the Mortgagee is the owner and holder of a Promissory Note,
dated of even date herewith, in the amount of $______, by XXXXX-PW LIMITED
PARTNERSHIP (the "Landlord"), payable to the Mortgagee (the "Note"), which Note
is secured by a Mortgage, dated of even date herewith, between the Landlord, as
mortgagor, and the Mortgagee, as mortgagee (the "Mortgagee"), covering the Land-
lord's right, title and interest in the Building and any other improvements
located on the Land, as such terms are defined in the Agreement of Lease (the
"Ground Lease"), dated __________, 1986, between Fee Owner, as landlord, and the
Landlord, as tenant, and the leasehold estate created thereby (the "Leasehold
Estate") in the land, located in the Lincoln Harbor Project, in Weehawken, New
Jersey, as such land is more particularly described in Exhibit A annexed hereto
and made a part hereof (said Land, Building, improvements and such other
property being hereinafter collectively referred to as the "Premises"), and
pursuant to which Mortgage Xxxxx Mountain Industries, Inc. ("Fee Owner")
executed the same for purposes of subordination of its fee interest in the Land
to the Mortgagee; and
WHEREAS, the Space Tenant has entered into a lease (the "Space Lease")
with the Landlord, dated as of __________, 1986, covering a portion of the
Premises (the "Demised Premises"); and
WHEREAS, the parties hereto desire to provide inter alia for the
non-disturbance of the Space Tenant by the Mortgagee.
K-1-1
119
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, and intending to be legally bound thereby, the Mortgagee and
the Space Tenant hereby covenant and agree as follows:
11. The Space Tenant covenants and agrees that the Space Lease shall at
all times be subject and subordinate in each and every respect to the Mortgage
and the lien thereof and to all renewals, extensions, supplements, amendments,
modifications, consolidations and replacements of such Mortgage, with the same
force and effect as if the Mortgage had been executed and delivered prior to the
execution and delivery of the Space Lease and without regard to the order of
priority of recording of the Mortgage and the Space Lease or any Memorandum of
the Space Lease.
12. Mortgagee expressly agrees that no subsequent modification of the
Mortgage shall adversely affect in any material respect any of Space Tenant's
rights under the Space Lease, materially increase Space Tenant's obligations
under the Space Lease or materially diminish Landlord's obligations under the
Space Lease.
13. The Space Tenant and Mortgagee agree that if any act or omission of
Landlord would give Space Tenant the right, immediately or after lapse of a
period of time or after notice or after both, to cancel or terminate the Space
Lease, or which Space Tenant claims gives it the right, immediately or after
lapse of a period of time or after notice or after both, to cancel or terminate
the Space Lease, or to claim a partial or total eviction, Space Tenant shall not
exercise such right (a) until and unless it has given written notice of such act
or omission to Mortgagee and any successor or assign whose name and address
shall previously have been furnished to Space Tenant, and (b) until a thirty
(30) day period for remedying such act or omission shall have elapsed following
the giving of such notice and following the time when Mortgagee shall have
become entitled under the Mortgage to remedy the same or such longer period as
may be reasonably required if such condition is not susceptible to remedy within
such thirty (30) day period provided Mortgagee commences and diligently pursues
such remedy (which reasonable period shall in no event be less than the period
to which Landlord would be entitled under the Space Lease or otherwise, after
similar notice, to effect such remedy).
K-1-2
120
The Space Tenant and Mortgagee further agree that in the event of any
default on the part of the Landlord, arising out of or accruing under the
Mortgage, whereby the Mortgage might be accelerated, terminated or foreclosed by
the Mortgagee, by reason of any such default or defaults, the Mortgagee will
given written notice thereof to the Space Tenant at the address set forth
herein, or its successor or assigns whose name and address previously shall have
been furnished to the Mortgagee in writing, and after the time when the Landlord
shall have become entitled under the Mortgage to cure such defaults, grant to
the Space Tenant a reasonable time (in no event to exceed ninety (90) days, for
all defaults other than payment of principal or interest on the Mortgage, for
which the time period shall be limited to ten (10) business days), which shall
be not less than the period of time granted to the Landlord by the terms of the
Mortgage, after the giving of such notice by the Mortgagee to the Space Tenant
to cure or to undertake the elimination of such defaults, provided that after
receipt of such notice, Space Tenant shall with due diligence give the Mortgagee
notice of intention to remedy such act or omission, and to the extent possible
and reasonably reasonable shall commence and continue to remedy such act or
omission, it being expressly understood that such right on the part of the Space
Tenant to cure any such default or defaults shall not be deemed to create any
obligation on the Space Tenant's part to cure or to undertake the elimination of
any such default or defaults.
14. As long as no default under the Space Lease exists which is
continuing beyond the expiration of any applicable grace period, which would
entitle the Landlord to terminate the Space Lease or dispossess the Space Tenant
thereunder as of the date Mortgagee files a lis pendens in, or otherwise
commences, a foreclosure action or any time thereafter, the Mortgagee shall not
name the Space Tenant as a party defendant to any action for foreclosure or
other enforcement thereof, nor shall the Space Lease be terminated by the
Mortgagee in connection with or by reason of foreclosure or other proceedings
for the enforcement of the Mortgage or by reason of a transfer of the Landlord's
interest under the Space Lease or under the Ground Lease or the Fee Owner's
interest in the Land pursuant to an assignment in lieu of foreclosure, or
otherwise, and any sale, or assignment pursuant thereto shall be subject to the
Space Lease nor shall the Space Tenant's use or possession of the Demised
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Premises be interfered with by the Mortgagee or any such assignee or purchaser,
except that the person acquiring the interest of the Landlord or Fee Owner as a
result of any such action or proceeding and such person's successors and assigns
(any of the foregoing being hereinafter referred to as the "Successor") shall
not be (a) subject to any credits, offsets, defenses or claims, not expressly
provided for in the Space Lease, which the Space Tenant might have against any
prior landlord, (b) bound by any previous modification or amendment of the Space
Lease or by any prepayment of more than one month's Fixed Rent or Additional
Charges (as such terms are defined in the Space Lease), unless such modification
or prepayment shall have been made with the Mortgagee's prior written consent,
or (c) liable for any act or omission of any prior landlord which constitutes a
default under the Space Lease, provided, however, Successor shall be liable for
any such default or defaults which are continuing beyond the time where the
interest of the Landlord under the Space Lease has been transferred to the
Successor.
15. If the interest of the Landlord under the Space Lease or under the
Ground Lease or the interest of Fee Owner in the Land shall be transferred to
the Mortgagee by reason of foreclosure or other proceedings for enforcement of
the Mortgage or pursuant to any assignment in lieu of foreclosure, or otherwise,
the Space Lease shall not terminate but shall continue in full force and effect
as, or as if it were, a direct lease between the Successor, or its designee and
Space Tenant, whereby the Space Tenant shall be bound to the Successor, and,
except as provided in this Agreement, the Successor shall be bound to the Space
Tenant, under all of the terms, covenants and conditions of the Space Lease for
the balance of the term thereof remaining, and the Space Tenant does hereby
agree to attorn to the Successor, including the Mortgagee if it be the
Successor, as its landlord, to affirm its obligations under the Space Lease and
does agree to make payments of all sums due under the Space Lease to the
Successor. Space Tenant shall promptly execute and deliver any instrument that
Mortgagee may reasonably request to evidence such attornment.
16. If and to the extent that the Space Lease or any provision of law
shall entitle the Space Tenant to notice of any mortgage, the Space Tenant
acknowledges and agrees that this Agreement shall constitute said notice to the
Space Tenant of the existence of the Mortgage.
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17. This Agreement may not be modified except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
This Agreement shall inure to the benefit of and be binding upon the parties
hereto, their respective heirs, representatives, successors and assigns.
18. Nothing contained in this Agreement shall in any way impair or
affect the lien created by the Mortgage, except as specifically set forth
herein.
19. The Space Tenant agrees that this Agreement satisfies any condition
or requirement in the Space Lease relating to the granting of a non-disturbance
agreement. The Space Tenant and Mortgagee agree that Mortgagee shall be deemed a
"Superior Mortgagee" as such term is defined in the Space Lease, subject however
to the terms and provisions of this Agreement. The Space Tenant further agrees
that in the event there is any inconsistency between the terms and provisions
hereof and the terms and provisions of the Space Lease dealing with
non-disturbance by the Mortgagee, the terms and provisions hereof shall be
controlling.
The Mortgagee agrees that this Agreement satisfies any condition or
requirement in the Mortgage (or mortgage commitment) relating to the granting of
a subordination agreement and attornment agreement. The Mortgagee further agrees
that in the event there is any inconsistency between the terms and provisions
hereof and the terms and provisions of the Space Lease dealing with
subordination and attornment by the Space Tenant, the terms and provisions
hereof shall be controlling.
20. The Space Tenant acknowledges that it has notice that the Space
Lease and the rent and all other sums due thereunder have been assigned to the
Mortgagee as part of the security for the note secured by the Mortgage.
21. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement must be in writing and mailed to the party to whom the
notice, demand or request is being made by certified or registered mail, return
receipt requested, at its address set forth above. Any party may change the
place that notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
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123
22. 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.
23. Each of the parties hereto agrees to execute and deliver, upon the
request of the other, such documents and instruments (in recordable form, if
requested) as may be necessary or appropriate to fully implement or to further
evidence the understandings and agreements contained in this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
Mortgagee:
By: ,
------------------------
Space Tenant:
PAINEWEBBER INCORPORATED
By:
-------------------------
K-1-6
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[NOTARY PAGE]
K-1-7
125
EXHIBIT A
Land
K-1-8
126
Exhibit "K-2"
Subordination, Non-Disturbance
and Attornment Agreement
THIS AGREEMENT, made as of the ____ day of ______________, 1986, by and
between __________, a __________ having an office at ________________ ("Superior
or Lessor"), and PAINEWEBBER INCORPORATED having an office at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Space Tenant").
WITNESSETH:
WHEREAS, XXXXX MOUNTAIN INDUSTRIES, INC. ("Ground Lessor") is the owner
of the land (the "Land") described in Schedule "A" annexed hereto and made a
part hereof; and
WHEREAS, Ground Lessor has entered into a ground lease (the "Superior
Lease"), dated as of _____________, whereby Ground Lessor demised and leased, as
ground lessor, all of the Land to Superior Lessor; and
WHEREAS, Superior Lessor has become the landlord under the entered
ground lease (the "Ground Lease"), dated as of __________, 1986, whereby Ground
Lessor demised and leased, all of the Land to XXXXX-PW LIMITED PARTNERSHIP
("Ground Lessee"); and
WHEREAS, Space Tenant has entered into a lease (the "Space Lease") with
Ground Lessee, dated as of __________, 1986, covering a portion of the space in
the building known as the [Data Processing Center] (the "Demised Premises"),
as more fully described in such Space Lease; and
WHEREAS, the parties hereto desire to provide inter alia for the
non-disturbance of Space Tenant by Superior Lessor.
NOW THEREFORE, in consideration of the covenants and agreements
contained herein, and intending to be legally bound thereby, Superior Lessor and
Space Tenant hereby covenant and agree as follows:
K-2-1
127
1. Space Tenant covenants and agrees that the Space Lease shall at all
times be subject and subordinate in each and every respect to the Ground Lease
and to all renewals, extensions, supplements, amendments, modifications,
consolidations and replacements of such Ground Lease, with the same force and
effect as if the Ground Lease had been executed and delivered prior to the
execution and delivery of the Space Lease and without regard to the order of
priority of recording of the Ground Lease and the Space Lease or any Memorandum
of the Space Lease.
2. Space Tenant and Superior Lessor agree that if any act or omission
of Ground Lessee would give Space Tenant the right, immediately or after lapse
of a period of time or after notice or after both, to cancel or terminate the
Space Lease, or which Space Tenant claims gives it the right, immediately or
after lapse of a period of time or after notice or after both, to cancel or
terminate the Space Lease, or to claim a partial or total eviction, Space Tenant
shall not exercise such right (a) until and unless it has given written notice
of such act or omission to Ground Lessee and Superior Lessor whose name and
address shall previously have been furnished to Space Tenant, and (b) until a
thirty (30) day period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when Superior Lessor
shall have become entitled under the Ground Lease to remedy the same or such
longer period as may be reasonably required if such condition is not susceptible
to remedy within such thirty (30) day period provided Superior Lessor commences
and diligently pursues such remedy (which reasonable period shall in no event be
less than the period to which Ground Lessee would be entitled under the Space
Lease or otherwise, after similar notice, to effect such remedy).
3. As long as no default under the Space Lease exists which is
continuing beyond the expiration of any applicable grace period, which would
entitle Ground Lessee to terminate the Space Lease or dispossess Space Tenant
thereunder, Superior Lessor shall not name Space Tenant as a party defendant or
otherwise in any suit, action or proceeding brought to enforce any rights
granted to Superior Lessor under its Ground Lease, and Superior Lessor will not
terminate the Space Lease or take any action to recover the premises demised to
Space Tenant or affect or disturb Space Tenant's possession or rights under the
Space Lease.
K-2-2
128
4. If Superior Lessor shall enter into and become lawfully possessed of
the Demised Premises and shall succeed to the rights of Ground Lessee under the
Space Lease by reason of the termination of the Ground Lease or otherwise, and
if Space Tenant is not then in default under the Space Lease beyond the time
permitted therein to cure such default, then (a) the Space Lease shall not
terminate, (b) Space Tenant shall attorn to Superior Lessor, and recognize it as
its landlord, such attornment to be upon the then executory terms and conditions
of the Space Lease, and (c) Superior Lessor shall accept such attornment and
recognize Space Tenant as Superior Lessor's lessee under the Space Lease. Upon
such attornment and recognition, the Space Lease shall continue in full force
and effect as, or as if it were, a direct lease between Superior Lessor and
Space Tenant, upon all of the then executory terms, conditions and covenants as
set forth in the Space Lease and which shall be applicable after such
attornment, except that Superior Lessor shall not be (i) liable for any previous
act or omission of Ground Lessee which constitutes a default under the Space
Lease; (ii) subject to any offset or defenses not expressly provided for in the
Space Lease which Space Tenant might have against Ground Lessee; (iii) bound by
any prepayment of more than one month's [Fixed Rent] or [Additional Charges] (as
such terms are defined in the Space Lease); and (d) bound by any amendment or
modification of the Space Lease made without Superior Lessor's prior written
consent.
5. This Agreement may not be modified except by an agreement in writing
signed by the parties hereto or their respective successors in interest. This
Agreement shall inure to the benefit of and be binding upon the parties hereto,
their respective heirs, representatives, successors and assigns.
6. Space Tenant and Superior Lessor agree that this Agreement satisfies
any condition or requirement in the Space Lease relating to the granting of a
non-disturbance agreement. Space Tenant and-Superior Lessor agree that Superior
Lessor shall be deemed a "Superior Lessor" as such term is defined in the Space
Lease, subject however to the terms and provisions of this Agreement. Space
Tenant and Superior Lessor further agree that in the event there is any
inconsistency between the terms and provisions hereof and the terms and
provisions of the Space Lease dealing with non-disturbance by Supe-
K-2-3
129
rior Lessor, the terms and provisions hereof shall be controlling.
7. All notices, demands or requests made pursuant to, under, or by
virtue of this Agreement must be in writing and mailed to the party to whom the
notice, demand or request is being made by certified or registered mail, return
receipt requested, at its address set forth above. Any party may change the
place that notices and demands are to be sent by written notice delivered in
accordance with this Agreement.
8. This Agreement shall be governed by the laws of the State of New
Jersey. If any term of this Agreement or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the remainder
of this Agreement or the application of such term to any person or circumstances
other than those as to which it is invalid or unenforceable shall not be
affected thereby, and each term of this Agreement shall be valid and enforceable
to the fullest extent permitted by law.
9. Each of the parties hereto agrees to execute and deliver, upon the
request of the other, such documents and instruments (in recordable form, if
requested) as may be necessary or appropriate to fully implement or to further
evidence the understandings and agreements contained in this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Agreement to be duly executed as of the day and year first above written.
Superior Lessor:
By:______________________
Space Tenant:
PAINEWEBBER INCORPORATED
By:______________________
K-2-4
130
[ACKNOWLEDGEMENTS]
K-2-5
131
Schedule "A"
Land
K-2-6
132
Exhibit "L"
Non-Disturbance
and Attornment Agreement
THIS AGREEMENT, dated as of the ____ day of ___________, 19__, between
XXXXX-PW LIMITED PARTNERSHIP, a New Jersey limited partnership, having an office
at 000 Xxxxx Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000
("Landlord"), and __________, a __________ having an office at __________
("Subtenant").
WITNESSETH:
WHEREAS, Landlord has entered into an Agreement of Lease, dated as of
the ____ day of __________, 1986 (the "Space Lease"), with PAINEWEBBER
INCORPORATED (the "Space Tenant") pursuant to which Landlord leased and demised
to Space Tenant a portion of the space in the building known as the [Data
Processing Center] (the "Demised Premises"), as more fully described in such
Space Lease;
WHEREAS, Space Tenant has entered into an Agreement of Sublease (the
"Sublease"), dated as of the ____ day of __________, 19__, pursuant to which
Space Tenant subleased and demised to Subtenant [the Demised Premises or a
portion thereof], as more fully described in Exhibit "A" annexed hereto and made
a part hereof; and
WHEREAS, the parties hereto desire to provide inter alia for the
non-disturbance of Subtenant by Landlord.
NOW, THEREFORE, the parties hereto agree as follows:
1. So long as the Sublease is in full force and effect, and no default
of Subtenant exists nor has any event occurred which with the passage of time or
notice would entitle Space Tenant to terminate the Sublease or dispossess
Subtenant, Landlord will not name or join Subtenant as a party defendant or
otherwise in any suit, action or proceeding brought to enforce any rights
granted to Landlord under the Space Lease or to terminate such Space Lease, and
the Landlord will not terminate the Sublease or take any action to recover
possession of the
L-1
133
premises demised to Subtenant or affect or disturb Subtenant's possession or
rights under the Sublease.
2. If Landlord or its designee shall enter into and become lawfully
possessed of the Demised Premises and shall succeed to the rights of Space
Tenant under the Space Lease by reason of the termination.of the Space Lease or
otherwise, and if Subtenant is not then in default under the Sublease beyond the
time permitted therein to cure such default, then (a) the Sublease shall not
terminate, (b) Subtenant shall attorn to Landlord or its designee, and recognize
it as its landlord, such attornment to be upon the then executory terms and
conditions of the Sublease, and (c) Landlord or its designee shall accept such
attornment and recognize Subtenant as the Landlord's lessee under the Sublease.
Upon such attornment and recognition, the Sublease shall continue in full force
and effect as, or as if it were, a direct lease between the Landlord or its
designee and Subtenant, upon all of the then executory terms, conditions and
covenants as set forth in the Sublease and which shall be applicable after such
attornment, except that Landlord shall not be (i) liable for any previous act or
omission of Space Tenant which constitutes a default under the Sublease; (ii)
subject to any offset or defenses not expressly provided for in the Sublease
which the Subtenant might have against Space Tenant; (iii) bound by any
prepayment of more than one month's [Fixed Rent] or [Additional Charges] (as
such terms are defined in the Sublease); and (d) bound by any amendment or
modification of the Sublease made without Landlord's prior written consent.
3. The terms of this Agreement shall bind and inure to the benefit of
the parties hereto, and their respective heirs, successors and assigns.
4. All notices and other communications hereunder shall be in writing
and shall be hand delivered or mailed by certified or registered mail, return
receipt requested, postage prepaid, addressed (a) if to Landlord at 000 Xxxxx
Xxxxx, Xxxx Xxxxxx Xxx 0000, Xxxxxxxx, Xxx Xxxxxx 00000, Attention: General
Counsel, with a copy to Horowitz, Bross, Sinins & Imperial, P.A., 0000 Xxxxxxx
Xxxxxxxxx, Xxxxxx, Xxx Xxxxxx 00000, Attention: Xxxxx Xxxxxxxx, Esq. or at such
other address as Landlord shall have furnished to Subtenant in writing, or (b)
if to Subtenant, at _________________________________________
L-2
134
______________ Attention : ____________, or at such other address as Subtenant
shall have furnished to Landlord in writing.
5. This Agreement shall be governed by the laws of the State of New
Jersey. If any term of this Agreement or the application thereof to any person
or circumstances shall to any extent be invalid or unenforceable, the
remainder of this Agreement or the application of such term to any person or
circumstances other than those as to which it is invalid or unenforceable shall
not be affected thereby, and each term of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
6. This Agreement may not be discharged or modified orally or in any
manner other than by an agreement in writing specifically referring to this
Agreement and signed by the party or parties to be charged thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
XXXXX-PW LIMITED PARTNERSHIP
By: Xxxxx Mountain Industries,
Inc.
By: ___________________________
[SUBTENANT]
By: ___________________________
L-3
135
[NOTARY PUBLIC PAGE]
L-4
136
Exhibit "A"
Demised Premises
L-5
