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Sample Business ContractsHome: Sample Business Contracts:
ALBANY STREET PLAZA
OFFICE LEASE
ALBANY STREET PLAZA REAL ESTATE MANAGEMENT COMPANY
LANDLORD
AND
Arbinet-thexchange, Inc.
TENANT
DATED: February 6, 2003
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TABLE OF CONTENTS
Page
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Article 1.00 Basic Lease Information 7-8
Article 2.00 Demised Premises
2.01 Agreement And Description 9
2.02 Warranty Of Title/Quiet Enjoyment 9
2.03 Estoppel 9
2.04 Delivery Condition of Premises 9
2.05 Use Of The Premises 9
Article 3.00 Term, Commencement, Occupancy 10
3.01 Term
3.02 Commencement 10
3.03 No Notice For Termination 10
3.04 Holdover 10
10
10
Article 4.00 Rent 11
4.01 General 11
4.02 Unspecified Costs 11
4.03 Due Date 12
4.04 Rental Years 12
4.05 Covenant To Pay Rent; Place Of Payment 12
4.06 No Waiver Upon Receipt 12
4.07 Late Charge 12
Article 5.00 Abatement 12
13
Article 6.00 Acceptance Of Premises 13
Article 7.00 Subordination 13
7.01 To Mortgages And Leases in General 13
7.02 To The Master Lease 13
Article 8.00 Tenant's Improvements, Fixtures And Mechanic's Liens 13
8.01 Improvements 13
8.02 Landlord's Right To Enter 14
8.03 Mechanic's Liens 14
8.04 Fixtures 14
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Article 9.00 Prompt Occupancy And Use 14
9.01 Continuous Occupancy 14
9.02 Operations In Good Faith 14
9.03 Hours And Days Of Operation 14
9.04 Overtime HVAC 14
Article 10.00 Operation By Tenant 15
10.01 Tenant's Maintenance Obligations 15
10.02 Prohibitions 15
10.03 Manner of Operation 16
Article 11.00 Structural Repairs 16
Article 12.00 Interior Repairs 16
12.01 Tenant's Repairs 16
12.02 Tenant's Indemnification 17
Article 13.00 Damage To Premises 17
Article 14.00 Alterations 17
14.01 Tenant's Improvements 17
14.02 Exterior And Structural Improvements 18
14.03 Signs And Advertising 18
14.04 Painting/Decorations 18
14.05 Approval By Landlord 18
Article 15.00 Roof And Walls 18
Article 16.00 Common Facilities 19
16.01 General 19
16.02 Operation And Maintenance 19
16.03 Landlord's Right To Alter 19
Article 17.00 Expense Of Common Facilities 19
17.01 Landlord's Operating Costs 19
17.02 Tenant's Share 20
17.03 Payment And Adjustment Of Tenant's Share 20
Article 18.00 Payment Of Utility Charges, Etc. 20
18.01 Installment Of Meters 20
18.02 Payment Of Charges 21
18.03 Interruption In Service 21
18.04 Alteration Of Service 21
Article 19.00 Insurance 21
Insurance Required 21
19.02 Compliance With Landlord's Policies 22
19.03 Waiver Of Subrogation 22
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Article 20.00 Indemnity 22
Article 21.00 Fire Or Other Casualty 23
21.01 Repair, Rent Abatement 23
21.02 Termination By Landlord 23
21.03 Demolition 23
Article 22.00 Condemnation 23
Article 23.00 Inspections By Landlord 24
Article 24.00 No Assignment, Etc. 24
24.01 General 24
24.02 Any Assignment Void 24
24.03 Limitation On Remedies 25
Article 25.00 Default 25
25.01 Events Of Default 25
25.02 Landlord's Remedies 26
25.03 Certain Damages 27
25.04 Continuing Liability After Termination 27
25.05 Cumulative Remedies 28
Article 26.00 Default By Landlord 28
Article 27.00 Successors And Assigns 28
Article 28.00 Governing Law 28
Article 29.00 Captions 29
Article 30.00 Brokers 29
Article 31.00 Written Modification 29
Article 32.00 Severability 29
Article 33.00 Notices 29
Article 34.00 Option To Renew 30
34.01 Term, Notice 30
34.02 Rent 30
Article 35.00 Joint And Several Liability 30
Article 36.00 Not A Joint Venture 30
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Article 37.00 No Option 31
Article 38.00 Third Party Beneficiary 31
Article 39.00 Compliance With All Laws 31
Article 40.00 Limitation On Recourse 31
Article 41.00 Force Majeure 31
Article 42.00 No Recordation 32
Article 43.00 Effect Of Sale 32
Article 44.00 Tenant's Ecra Warranty 32
Article 45.00 Use Of Asbestos 32
Article 46.00 Corporate Tenancy 32
Article 47.00 Parking 33
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TABLE OF EXHIBITS
The following exhibits are attached to this Lease and are made part of this
Lease Agreement:
Page
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EXHIBIT A The Premises 34
EXHIBIT B Rent Schedule 35
EXHIBIT C Work Letter/Tenant's Plans 37
EXHIBIT D Master Lease 38
EXHIBIT E Cleaning Schedule 47
EXHIBIT F Rules and Regulations 48
<PAGE>
This Lease Agreement dated, February 6, 2003, is made by and between Albany
Street Plaza Real Estate Management Company having an address c/o Boraie
Development LLC., 120 Albany Street, Suite 305, New Brunswick, New Jersey 08901
(Landlord) and Arbinet-thexchange, Inc. having an address at 75 Broad Street,
20th Floor, New York, New York 10004 (Tenant).
WITNESSETH:
Landlord and Tenant, intending to be legally bound, hereby covenant and agree as
follows:
ARTICLE 1.00 BASIC LEASE INFORMATION
In addition to the terms used in the Article which are defined elsewhere in this
Lease, the following defined terms may be used in this Lease:
a) Tenant's Trade Name: Arbinet-thexchange, Inc.
b) Tenant's Address: 120 Albany Street, Tower II
Suite 400
New Brunswick, NJ 08901
c) Landlord: Albany Street Plaza Real Estate Management
Company
d) Landlord's Address: c/o Boraie Development LLC.
120 Albany Street, Suite 305
New Brunswick, New Jersey 08901
Albany Street Plaza 120 Albany Street
Address: New Brunswick, New Jersey 08901
Commencement Date: April 15, 2003
g) Termination Date: April 30, 2008
h) Security Deposit: $24,841.66
i) Annual Basic Rent: Year 1 = $22.00 per rentable square foot.
Year 2 = $22.50 per rentable square foot
Year 3 = $23.00 per rentable square foot
Year 4 = $23.50 per rentable square foot
Year 5 = $24.00 per rentable square foot
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j) Parking: Fifteen (15) parking spaces at eighty-five ($85.00)
dollars per space per month.
k) Monthly Basic Rent: $12,420.83 per month commencing on the Commencement
Date subject to adjustments for the first and last
months rent pursuant to Sections 4.02 and 4.03 as
well as Exhibit B.
l) Leaseable Area of the Approximately 6,775 Rentable Square Feet
Premises: located on the 4th floor of Tower II
m) Leaseable Area of 200,000 Rentable Square Feet.
Albany Street
Plaza:
n) Prorata Share: 3.4%
o) Permitted Use: General, executive and administrative office
space & ancillary uses thereto.
p) Broker: For Landlord: Boraie Realty
257 Livingston Avenue
New Brunswick, New Jersey 08901
For Tenant: CB Richard Ellis
560 Lexington Avenue
New York, NY 10022
q) Additional Rent: Any and all amounts (including without limitation
Tenant's prorata share of Landlord's Operating Costs)
which this Lease requires Tenant to pay in addition
to Annual Basic Rent.
r) Premises: The portion of the 4th floor shown on Exhibit A to
this Lease and known as Tower II - Suite 400.
s) Albany Street Plaza: The Shopping Center and Office Development consisting
of the Land and all Improvements built on the land,
including without limitation, Walkways, Driveways,
Fences and Landscaping, located at 120 Albany Street,
New Brunswick, New Jersey 08901.
t) Building: The office and retail building which is part of
Albany Street Plaza.
u) Rent: The Annual Basic Rent and Additional Rent.
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ARTICLE 2.00 DEMISED PREMISES
Section 2.01 Agreement and Description
Landlord, for and in consideration of the terms, covenants and conditions herein
contained, does hereby demise, lease and let to Tenant, and Tenant does hereby
hire and take from Landlord for the term hereof subject to the terms, covenants
and conditions herein contained 6,775 rentable square feet on the fourth floor
of the building commonly known and designated as Albany Street Plaza, 120 Albany
Street, Tower II, New Brunswick, New Jersey 08901 as more specifically described
on the sketch attached as Exhibit A (the "Premises").
Section 2.02 Warranty of Title/Quiet Enjoyment
Landlord hereby represents that it and no other person, entity or corporation
has the right to lease the Premises hereby demised except with respect to
Article 24. Landlord covenants and agrees that the Tenant shall have peaceful
and quiet use and possession of the Premises without hindrance on the part of
Landlord. Tenant acknowledges that neither Landlord nor its agents have made any
representations or warranties as to the suitability or fitness of the Premises
for the conduct of Tenant's business or for any other purpose.
Section 2.03 Estoppel
Tenant agrees that at any time, and from time to time, at reasonable intervals,
within twenty (20) days after receipt of written request from Landlord to
Tenant, Tenant will execute, acknowledge and deliver to Landlord and/or to such
assignee or secured party as may be designated by Landlord, a certificate
stating:
that the Lease is unmodified and in full force and effect (or if there have
been modifications, that the Lease is in full force and effect as modified,
and identifying the modification agreements, or if the Lease is not in full
force and effect the certificate shall so state);
the date to which rental has been paid under the Lease;
whether or not there is any existing default by Tenant in the payment of
any rent or other sum of money under the Lease, and whether or not there is
any other existing default by either party under the Lease with respect to
which a notice of default has been served, and if there is any such
default, specifying the nature and extent thereof;
whether or not there are any setoffs, defenses or counterclaims against
enforcemen of the obligations to be performed by Tenant under the Lease;
and
such other matters relating to this Lease as may be reasonably requested by
Landlord or any of its aforesaid designees.
Section 2.04 Delivery Condition of Premises
Landlord, at its sole cost and expense, shall construct the leasehold
improvements in the Premises per the approved plans and specifications attached
hereto as Exhibit D.
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Landlord shall deliver the Premises to Tenant upon the substantial completion of
the leasehold improvements. During the Landlord's performance of the work
outlined in Exhibit D., Tenant shall have the right to perform certain work in
the Premises, such as installation of a telephone and data equipment and
cabling, provided said work does not interfere with Landlord's work.
Section 2.05 Use of the Premises
Tenant shall use the Premises for general, executive and administrative offices
and related purposes incidental to Tenants business, and in accordance with
applicable law (the "Permitted Use").
ARTICLE 3.00 TERM; COMMENCEMENT; OCCUPANCY
Section 3.01 Term
This Lease shall be for a term of five (5) years (the Term"), commencing on the
"Commencement Date" (as hereinafter defined) and expiring at the close of
business on the later of April 30, 2008 or the last day of the sixtieth full
month following the Commencement Date (the "Termination Date"), subject to any
option rights which may be contained in Article 34.00 hereof. In the event,
Landlord has not substantially completed the leasehold improvements by April 15,
2003, then Landlord will give Tenant one day free rent for each day of delay. In
the event Leasehold improvements are not substantially completed by September
30, 2003, Tenant shall have the right to cancel this lease.
Section 3.02 Commencement
The Commencement Date shall be defined as the earlier of April 15, 2003 or:
1.) The date of Tenant's substantial occupancy of the Premises; or
2.) The date Landlord delivers premises to Tenant substantially complete.
Section 3.03 No Notice for Termination
This Lease shall terminate on the Termination Date set forth in Section 3.01, or
any extension or renewal thereof, without the necessity of any notice from
either Landlord or Tenant to terminate the same. For the period of six (6)
months prior to the Termination Date, or any renewal or extension thereof,
Landlord may show the Premises to prospective tenants during normal business
hours.
Section 3.04 Holdover
If Tenant shall be in possession of the Premises after the Termination Date set
forth in section 3.01, in the absence of any agreement extending the term
hereof, the tenancy under this Lease shall become one from month to month, which
either party may terminate on thirty (30) days prior written notice. During such
occupancy subsequent to the termination date, Tenant shall pay a rental rate
equal to 120% of the then current rental rate.
ARTICLE 4.00 RENT
Section 4.01 General
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Tenant covenants and agrees to pay the Landlord, as rental during the Term for
the Premises, an annual basic rent as set forth on Exhibit B ("Annual Basic
Rent") payable in equal monthly installments as set forth on Exhibit B ("Monthly
Basic Rent"). Tenant covenants and agrees to pay, when due, any and all
Additional Rent as hereinafter set forth in this Lease.
Section 4.02 Unspecified Costs
Any reasonable costs specified in this Lease and attributable to the operation,
maintenance, alteration or improvement of the Premises shall, at the option of
the Landlord, if not paid when due, be deemed Additional Rent and collectible as
such with the next installment of Monthly Basic Rent. Nothing herein contained
shall be deemed to suspend or delay the payment of any sum at the time the same
becomes due and payable hereunder, or limit any other remedy of the Landlord.
Section 4.03 Due Date
Monthly Basic Rent shall be payable in advance on the first business day of each
full calendar month during the Term, the first such payment, to be paid on the
Commencement Date, shall include any prorated Annual Basic Rent for the period
from the Commencement Date to the first day of the first full calendar month in
the Term.
Section 4.04 Rental Years
The first "Rental Year" shall begin on the Commencement Date and shall end at
the close of the twelfth full calendar month following the Commencement date or
following the schedule set in Exhibit B of the Lease; thereafter a Rental Year
shall consist of successive periods of twelve calendar months. Any portion of
the Term remaining at the end of the last full Rental Year shall constitute the
final Rental Year and rentals and all other charges shall be apportioned
therefore and promptly paid as provided herein on the basis of the number of
days in such final Rental Year divided by 365 days.
Section 4.05 Covenant to Pay Rent; Place of Payment
Tenant covenants to pay all Rent when due without any setoff, deduction or
demand whatsoever, unless otherwise mutually agreed. Any monies paid or
reasonable expenses incurred by Landlord to correct violations of any of the
Tenant's obligations hereunder shall be payable to Landlord as Additional Rent.
Any Additional Rent provided for in this Lease shall be due with the next
installment of Annual Basic Rent due after receipt of notice of such Additional
Rent from Landlord. Rent and statements required of Tenant shall be paid or
delivered to Landlord at such place as Landlord may from time to time designate
in writing to Tenant.
Section 4.06 No Waiver Upon Receipt
Receipt and acceptance by Landlord of any rentals, additional rentals and
charges with knowledge of the breach of any covenant or condition of this lease
by Tenant shall not be deemed a waiver of such breach.
Section 4.07 Late Charge
Notwithstanding anything to the contrary herein contained, in order to cover the
extra expense involved in handling delinquent payments, Tenant shall pay a late
charge of five percent (5%) of the overdue payment when any payment of Rent
hereunder is paid
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more than ten (10) days after the due date thereof. It is understood and agreed
that this charge is for additional expense incurred by Landlord and shall not be
considered interest.
ARTICLE 5.00 TAX
Section 5.00 Abatement
Landlord anticipates having a property tax abatement for 30 years, whereby
Landlord will make certain payments in lieu of real estate taxes. The Tenant is
responsible for Tenant's Prorata Share of said in lieu of tax payments, which
are incorporated into Annual Basic Rent. If at any future time Landlord becomes
obligated to pay taxes, Tenant shall be obligated to pay Tenant's Prorata Share
of such tax after said in lieu tax amounts are deducted from the Annual Basic
Rent. If at any future time said property tax or in lieu of property tax payment
shall increase, Tenant shall pay Tenant's Prorata Share of the increase.
ARTICLE 6.00 ACCEPTANCE OF PREMISES
Upon Tenant possession of the Premises for the conduct of it business, Tenant
shall be deemed to have accepted the Premises, acknowledged that the same are in
the condition called for hereunder and agreed that the obligations of the
Landlord imposed hereunder have been fully performed.
ARTICLE 7.00 SUBORDINATION
Section 7.01 To Mortgages and Leases in General
This Lease shall not be a lien against the Premises in respect to any mortgages,
or ground or master leases, that are, now or may hereafter be placed upon the
Premises. All such mortgages, or ground or master leases shall have preference
and precedence, and be superior and prior in lien, to this Lease, irrespective
of the date of recording. This provision shall be self-operative and no further
instrument of subordination shall be required. Nevertheless, Tenant agrees to
execute without cost any instruments which Landlord may deem reasonably
necessary or desirable to confirm the subordination of this Lease. Landlord to
provide written notice to Tenant and Tenant will have five (5) business days to
comply. A refusal by the Tenant to execute such instruments shall constitute a
default under this Lease.
Section 7.02 To the Master Lease
This lease is subordinate to the Master Lease Agreement ("Master Lease") for the
Albany Street Plaza, between Albany Street Plaza Urban Renewal LLC., as master
lessor and Albany Street Plaza Reaf Estate Management Company as master lessee.
The terms and conditions of the Master Lease are incorporated herein and are
binding upon the parties hereto as if set forth fully herein. Where the
provisions of the Master Lease and this Lease are conflicting, the Master Lease
shall be controlling.
ARTICLE 8.00 TENANT'S IMPROVEMENTS, FIXTURES AND MECHANIC'S LIENS
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Section 8.01 Improvements
On or before the Commencement Date, Landlord shall substantially complete all
work to the Premises for Tenant in accordance with the description set forth in
Exhibit D (Work Letter/Tenant's Plans) and Section 2.04 of this agreement. All
improvements to the Premises other than those specified in Exhibit D shall be
the obligation of the Tenant.
Section 8.02 Landlord's Right to Enter
Notwithstanding the Commencement Date, Landlord shall have the right to enter
the Premises as reasonably necessary with reasonable advance notice. Landlord
must give reasonable advance notice, except in an emergency, to enter the
Premises after normal business hours.
Section 8.03 Mechanic's Liens
In the event any mechanic's lien shall at any time, whether before, during or
after the Term, be filed against any part of Albany Street Plaza by reason of
work, labor, services or materials performed or furnished to Tenant or to anyone
holding the Premises through or under Tenant (except for work performed by
Landlord including initial leasehold improvements), Tenant shall forthwith cause
the same to be discharged of record or bonded to the reasonable satisfaction of
Landlord. If Tenant shall fail to cause such lien to be so discharged or bonded
within twenty (20) days after being notified in writing of the filing thereof,
then, in addition to any other right or remedy of Landlord, Landlord may
discharge the same by paying the amount claimed to be due, and the amount so
paid by Landlord shall be due and payable by Tenant to Landlord as Additional
Rent upon demand.
Section 8.04 Fixtures
All trade fixtures and apparatus (as distinguished from leasehold improvements)
owned by the Tenant and installed in the Premises shall remain the property of
Tenant and shall be removable at any time, including the expiration of the Term.
After the termination of this Lease including the renewal or extension thereof,
all erections, alterations, additions and improvements, whether temporary or
permanent in character, which may be made upon the Premises by any person,
except furniture, workstations, movable cabinets, shelves or movable machinery
or equipment of the Tenant, shall become the property of the Landlord and shall
remain upon and be surrendered with the Premises as a part thereof without
compensation to the Tenant or to anyone else.
ARTICLE 9.00 PROMPT OCCUPANCY AND USE
Section 9.01 Continuous Occupancy
Tenant shall occupy the Premises on the Commencement Date and thereafter will
continuously conduct its business in the Premises in accordance with the
Permitted Use.
Section 9.02 Operations in Good Faith
Tenant shall cause said business to be conducted and operated in good faith.
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Section 9.03 Hours and Days of Operation
The Building is accessible 365 days a year, 24 hours per day.
Section 9.04 Overtime HVAC
The Building will be responsible for supplying HVAC from 7:00am through 7:00pm
Monday - Friday, and 9:00am through 5:00pm on Saturday, including holidays. Any
additional Tenant requirements will be supplied at an additional cost of $75.00
per hour. 24-hour notice is required by Landlord.
ARTICLE 10.00 OPERATION BY TENANT
Section 10.01 Tenant's Maintenance Obligations
In regard to use and occupancy of the Premises, at Tenant's expense, Tenant
shall:
Replace promptly any cracked or broken glass of the Premises with glass of
like kind and quality if breakage is due to the negligence of Tenant, its
agents or employees;
Maintain the Premises in a clean, orderly and sanitary condition;
Keep any garbage, trash, rubbish or refuse in containers within the
interior of the Premises until removed by Landlord to dumpster. Tenant will
comply with all recycling rules and regulations set forth by the City of
New Brunswick;
Keep all mechanical apparatus free of vibration and noise which may be
transmitted beyond the Premises;
Comply with all laws and ordinances, rules and regulations of governmental
authorities and all recommendations of the Fire Underwriters Rating Bureau
now or hereafter in effect in regard to Tenant's business;
Conduct its business in all respects in a dignified manner in accordance
with high standards of professionalism consistent with the quality of
operation of the Albany Street Plaza as reasonably determined by Landlord;
and
Comply with all rules and regulations as Landlord shall reasonably
implement from time to time.
Section 10.02 Prohibitions
In regard to use and occupancy of the Premises and common facilities, Tenant
shall not:
Place or maintain any merchandise, trash, refuse or other articles in any
vestibule or entry of the Premises, on the sidewalks or corridors adjacent
thereto or elsewhere on the exterior of the Premises so as to partially
obstruct any driveway, sidewalk, parking area, mall or any other common
facility;
Use or permit the use of any objectionable advertising medium such as,
without limitation, loudspeakers, phonographs, public address systems,
sound amplifiers, reception of radio or television broadcasts within or
outside of the Albany Street Plaza which is in any manner audible or
visible outside of the Premises;
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Permit unreasonable accumulations of garbage, trash, rubbish or other
refuse within or without the Premises;
Cause or permit objectionable odors to emanate or be dispelled from the
Premises;
Solicit business in the parking area or other common facilities;
Distribute handbills or other advertising matter to, in or upon any
automobiles parked in the parking areas or in any other common facility;
Permit the parking of delivery vehicles so as to unreasonably interfere
with the use of any driveway, sidewalk, parking area, lobby or other common
facility in the Albany Street Plaza;
Receive or ship articles of any kind except through service facilities
provided by the Landlord between 6:00 AM and 7:00 PM through the back
alleyway leading to Church Street; (and Landlord should at all times be
required to provide reasonable facilities for shipping or receiving
articles)
(i) Use the Albany Street Plaza, sidewalk or any other common area
facility adjacent to the Premises for the sale or display of any
merchandise or for any other business, occupation or undertaking;
(j) Conduct or permit to be conducted any auction, fire, going out of
business, bankruptcy, or other similar type sale in or connected with
the Premises;
(k) Use or permit the use of any portion of the Premises for any unlawful
purpose; or
(l) Place a load upon any floor which exceeds the floor load for which the
floor was designed to carry or allowed by law.
Section 10.03 Manner of Operation
Tenant acknowledges that it is Landlord's intent that the Albany Street Plaza be
operated and therefore, agrees to operate in a manner which is consistent with
the highest standards of decency and morals prevailing in the community which it
serves. Toward that end, Tenant agrees that it shall also operate in a manner
which is consistent with the highest standards of decency and morals.
ARTICLE 11.00 STRUCTURAL REPAIRS
Landlord shall make all structural repairs to the Premises and will keep in good
order or repair the roof and the exterior of the Premises, except any doors, or
door frames, storefronts, windows, and glass; provided Tenant shall give
Landlord reasonable written notice of the necessity for such repairs, and
provided that the damage thereto shall not have been caused by negligence of
Tenant, its concessionaires, officers, employees, licensees, contractors or
agents, in which event Tenant shall be responsible therefore.
ARTICLE 12.00 INTERIOR REPAIRS
Section 12.01 Tenant's Repairs
Excluding utilities not exclusively serving the Premises and the sprinkler,
Tenant shall keep all non-structural elements and the interior of the Premises,
together with all electrical, plumbing and other mechanical installations
therein, in good order and repair
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and make all replacements thereto at its expense, if repair and/or replacement
is necessary due to the gross negligence of Tenant, its agents or employees.
Tenant shall surrender the Premises at the expiration of the Term or at such
other time as it may vacate the Premises in as good condition as when received,
except for ordinary wear and tear. Tenant shall not overload the electrical
wiring or other services or utilities serving the Premises or within the
Premises, and shall install at its expense, subject to the provisions of Article
14 herein, any additional electrical wiring or service which may be required in
connection with Tenant's Permitted Use.
Section 12.02 Tenant's Indemnification
Any damage sustained by any party caused by mechanical, electrical, plumbing or
any other equipment or installations, whose maintenance and repair is the
responsibility of the Tenant shall be paid by Tenant, and Tenant shall indemnify
and hold Landlord harmless from and against any and all claims, actions, damages
and liability in connection therewith, including, but not limited to attorney's
and other professional fees, which fees shall be reasonable, and any other cost
which Landlord might reasonably incur.
ARTICLE 13.00 DAMAGE TO PREMISES
Tenant shall repair at its expense any damage to the Premises, or the building
in which the Premises are located, caused by bringing into the Premises any
property for Tenant's use, or by the installation or removal of such property,
unless caused by Landlord, its agents, employees or contractors; and in default
of such repairs by Tenant, at the expiration of fifteen (15) days after
delivery, except in case of emergency, of written notice to Tenant, Landlord may
make the same and Tenant agrees to pay to Landlord promptly upon Landlord's
demand, as Additional Rent, the cost thereof with interest at the rate of the
lesser of ten percent (10%) per annum or prime rate plus 2%.
ARTICLE 14.00 ALTERATIONS BY TENANT
Section 14.01 Tenant's Improvements
Tenant agrees that it shall not substantially improve or substantially alter the
Premises in any way without prior written approval of Landlord, which approval
shall not be unreasonably withheld, conditioned or delayed as to non-structural
or cosmetic alterations. Any improvements made by Tenant which have been
approved by Landlord shall be at the sole cost and expense of Tenant. Tenant
agrees that any improvements or alterations approved by Landlord shall be
constructed in a good and workmanlike manner. During the Term of the Lease,
Tenant shall maintain such improvements and alterations in good condition.
Tenant agrees that any additions, alterations and improvements made by it to the
Premises (leasehold improvements) shall upon termination of the Lease
automatically become the property of Landlord and shall remain upon the Premises
in the absence of written agreement to the contrary. Tenant further shall not
cut or drill into or secure any fixture, apparatus, or equipment of any kind to
any part of the Premises without Landlord's prior written consent, which consent
shall not be unreasonably withheld or delayed.
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Section 14.02 Exterior and Structural Improvements
Tenant shall not alter the exterior of the Premises (including but not limited
to the facade and/or signs) and will not make any structural alterations to the
Premises or any part thereof without Landlord's prior written approval of such
alterations, which approval shall not be reasonably withheld or delayed.
Section 14.03 Signs and Advertising
Tenant shall not place or suffer to be placed or maintained on the exterior of
the Premises any sign, advertising matter or any other thing of any kind, and
shall not place or maintain any decoration, lettering or advertising matter on
the glass of any window or door of the Premises without Landlord's prior written
approval which approval shall not be unreasonably withheld or delayed. Tenant
shall maintain any such sign, decoration, lettering, advertising matter or other
thing as may be approved by Landlord in good condition and repair at all times.
Section 14.04 Painting/Decorations
Tenant will not paint or decorate any part of the exterior of the Premises
without Landlord's prior written approval.
Section 14.05 Approval by Landlord
No alterations, renovations, improvements, other installation to be made in or
on the Premises (including, but not limited to, electrical, plumbing, and
mechanical installation and storefront or facade construction) shall be
commenced until plans and specifications therefor have been submitted to
Landlord and Landlord has approved same in writing. The plans and specifications
required hereunder and the improvements to be made pursuant thereto shall be
certified and performed by a person duly qualified to do the work described in
said plans and specifications in the jurisdiction wherein the Premises are
situated, and same shall comply with all applicable codes, rules, regulations
and ordinances.
ARTICLE 15.00 ROOF AND WALLS
Landlord shall have the exclusive right to use all or any part of the roof of
the Premises for any purpose; to erect additional stores or other structures
over all or any part of the Premises; to erect in connection with the
construction thereof temporary scaffolds and other aids to construction of the
exterior of the Premises, provided that access to the Premises shall not be
denied; and to install, maintain, use, repair and replace within the Premises
pipes, ducts, conduits, wires and other mechanical equipment serving other parts
of the Albany Street Plaza, the same to be in locations within the Premises as
will not deny Tenant's use thereof, and which will not be visible from Tenant's
customer area. Landlord may make any use it desires of the side or rear walls of
the Premises, provided that such use shall not encroach on the interior of the
Premises or interfere with Tenant's signage.
ARTICLE 16.00 COMMON FACILITIES
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Section 16.01 General
The common facilities which may be furnished by Landlord in or near the Albany
Street Plaza for the general common use of tenants, their officers, agents,
employees and invitees, including without limitation, loading docks and areas,
delivery passages, package pickup stations, pedestrian sidewalks, malls,
lobbies, courts and ramps, landscaped and planted areas, retaining walls,
stairways, bus stops, lighting facilities, heating, ventilation and
air-conditioning equipment and system, comfort stations and other areas and
improvements, shall at all times be subject to the exclusive control and
management of Landlord. Landlord shall have the right to establish, modify and
enforce reasonable rules and regulations with respect to the common facilities.
Section 16.02 Operation and Maintenance
Landlord shall operate and maintain the common facilities provided pursuant to
this Article.
Section 16.03 Landlord's Right to Alter
Landlord reserves the right in its sole discretion to change, rearrange, alter,
modify, diminish or add to any or all of the common facilities so long as there
is no unreasonable degradation to such facilities.
ARTICLE 17.00 EXPENSE OF COMMON FACILITIES
Section 17.01 Landlord's Operating Costs
The "Landlord's Operating Costs" shall be the cost and expense of operating and
maintaining the common facilities which may be provided pursuant to Article 16
(whether located on land within the Albany Street Plaza or adjacent thereto) in
a manner deemed by Landlord to be reasonable and appropriate and for the best
interests of the Albany Street Plaza, including, without limitation: all
reasonable costs and expense of operating, repairing, lighting, cleaning,
painting, striping, reasonable policing and security (including cost of
uniforms, equipment and all employment taxes); insurance, including liability
insurance for personal injury, death and property damage, insurance against
fire, extended coverage, theft or other casualties, worker's compensation
insurance covering personnel, fidelity bonds for personnel, insurance against
liability for defamation and claims of false arrest occurring in or about the
area in which the common facilities are from time to time located; plate glass
insurance for glass exclusively serving the area in which the common facilities
are from time to time located; removal of snow, ice, and debris; costs and
expense of inspection and depreciation of machinery and equipment used in the
operation and maintenance of the common facilities and personal property taxes
and other charges incurred in connection with such equipment; costs and expense
of repair and/or replacement of curbs, walkways, landscaping, drainage, pipes,
ducts, conduits and similar items, and lighting facilities; costs and expense of
planting, replanting and replacing flowers, shrubbery and planters; costs of
elevator service contracts; cost and expense for the rental of music program
services and loud speakers systems, including furnishing electricity therefore;
cost attributed by Landlord for providing energy to heat, ventilate and air-
condition areas in which the common facilities are, from time to time located;
maintenance costs related to furnishing heat, air conditioning and ventilation;
utility costs including but not limited to electric, gas, water and sewer
services; services, if
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any, furnished by the Landlord for non-exclusive use of all tenants, including
parcel pick-up and delivery services and shuttle bus service; garbage
collection; and customary building management fees for operating and maintaining
the common facilities.
Section 17.02 Tenant's Share
In each Rental Year Tenant will pay Landlord, as Additional Rent, Tenant's
Prorata Share of Landlord's Operating Costs over base year 2003.
Section 17.03 Payment and Adjustment of Tenant's Share
Tenant's share shall be paid by Tenant in monthly installments in such amounts
as are from time to time estimated and billed by Landlord during each twelve
(12) month period commencing and ending on dates designated by Landlord, each
installment being due on the first day of each month next following the sending
of the bill by Landlord. Within one hundred twenty (120) days after the end of
each Rental Year Landlord shall deliver to Tenant a statement of Landlord's
Operating Costs for such Rental Year and the monthly installments paid or
payable shall be adjusted between Landlord and Tenant, each party hereby
agreeing to pay to the other within thirty (30) days of receipt of such
statement, such amount (without interest) as may be necessary to effect
adjustment to the agreed Tenant's Share for the preceding Rental Year. Tenant's
share of Landlord's Operating Costs as provided in Landlord's yearly statement
to Tenant shall only be increased in any given year by the lesser of (a) ten
percent (10%) of the preceding year's share of Operating Costs, or (b) actual
cost. Upon reasonable notice, Landlord shall make available for Tenant's
inspection, during normal business hours, Landlord's records relating to
Landlord's Operating Costs for such preceding period. Failure of Landlord to
provide the statement called for hereunder within the time prescribed shall not
relieve Tenant from its obligations hereunder. Landlord will notify Tenant in
writing of any such charges.
ARTICLE 18.00 PAYMENT OF UTILITY CHARGES, ETC.
Section 18.01 Installation of Meters
Landlord shall install an electric meter to the Tenant's floor measuring the use
of the utilities by Tenant in the operation of the Premises. Tenant will be
charged Tenant's prorata share of the 4th floor which is 60%, of electrical
charges to the 4th floor. In the event Tenant's electrical charges deviate
substantially from their actual usage then Landlord shall install an additional
submeter, at Landlord's expense.
Section 18.02 Payment of Charges
Landlord shall pay and discharge all charges for all public and private utility
services furnished to or for the benefit of the Building during the Term, except
Tenant shall pay and discharge all charges for all utility services furnished to
or for the benefit of the Premises. Tenant shall make said payment directly to
the Landlord.
Section 18.03 Interruption in Service
Unless caused by the gross negligence of Landlord, its agents or employees,
Landlord shall under no circumstances be liable to Tenant in damages or
otherwise for any
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interruption in service of water, electricity, heating, air conditioning or
other utilities and services caused by the making of any necessary repairs or
improvements or by any cause beyond Landlord's reasonable control, and the same
shall not constitute a termination of this Lease or eviction from the Premises
(constructive or otherwise). However, in the event that such services are not
provided for more than two consecutive business days or five days in a calendar
month, then in that event the Monthly Rental will be reduced proportionately
from the date the interruption in services began until the services are
restored.
Section 18.04 Alteration of Service
Landlord reserves and shall at all times have the light in its sole discretion
to alter the utilities serving the Albany Street Plaza without disrupting
service to Tenant, and Tenant agrees to execute and deliver to Landlord without
delay such documentation as may be required to effect such alteration.
ARTICLE 19.00 INSURANCE
Section 19.01 Insurance Required
Tenant will keep in force at its expense as long as this Lease remains in effect
and during such other time as Tenant occupies the Premises or any part thereof,
public liability insurance, including contractual liability, with respect to the
Premises with carriers Landlord has approved in writing with minimum limits of
One Million ($1,000,000.00) Dollars on account of bodily injuries to or death of
one person, and Three Million ($3,000,000.00) dollars on account of bodily
injuries to or death of more than one person as the result of any one accident
or disaster; property damage insurance with minimum limits of One Million
Dollars ($1,000,000.00) and all risks perils insurance at replacement cost value
on Tenant's personal property, including inventory, trade fixtures, wall and
floor coverings, furniture and other property removable by Tenant and leasehold
improvements either existing within the Premises on the Commencement Date or
installed by Tenant during the Term of this lease; provided, however, that
Tenant's insuring of said leasehold improvements used by it shall in no way
confer on Tenant any property rights to same except as otherwise provided in
this Lease. Tenant may self-insure for glass breakage. All policies shall name
Landlord or its designee as additional named insured, and shall contain a
provision stating that such policy or policies shall not be canceled or modified
except after thirty (30) days prior written notice to Landlord. At least thirty
(30) days prior to expiration of any insurance policies required hereunder,
Tenant shall deliver to Landlord a premium bill marked paid for the full year
subsequent to the year covered by the expiring policy. If the nature of Tenant's
operation is such as to place any or all of its employees under the coverage of
local worker's compensation or similar statutes, Tenant shall also keep in
force, at its expense, so long as this Lease remains in effect and during such
other times as Tenant occupies the Premises or any part thereof, worker's
compensation or similar insurance affording statutory coverage and containing
statutory limits. If Tenant shall not comply with its covenants made in this
Article 19.00, Landlord may immediately cause insurance as aforesaid to be
issued, and in such event Tenant agrees to pay, as Additional Rent, the premium
for such insurance upon Landlord's demand. It is understood and agreed to by
Landlord that Tenant is insured and as such
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shall not be required to provide Landlord with policies of insurance. However,
Tenant shall provide Landlord with evidence of Tenant's insurance.
Section 19.02 Compliance with Landlord's Policies
Tenant shall not do or suffer to be done, or keep or suffer to be kept, anything
in, upon or about the Premises which will contravene Landlord's policies
insuring against loss or damage by fire or other hazards (including, without
limitation, public liability) or which shall prevent Landlord from procuring
such policies in companies acceptable to Landlord. If anything done, omitted to
be done or caused by Tenant to be kept in, upon or about the Premises shall
cause the rate of fire or other insurance on the Premises or on other property
of Landlord or of others within the Albany Street Plaza to be increased beyond
the minimum rate from time to time applicable to the Premises for the Permitted
Use or to any other property for the use or uses made thereof, Tenant shall pay,
as Additional Rent, the amount of any such increase upon Landlord's demand.
Section 19.03 Waiver of Subrogation
Neither the Tenant nor the Landlord, nor their respective agents or employees,
shall be liable to the other (or to anyone claiming through or under them by way
of subrogation or otherwise) for loss or damage of type normally covered by
comprehensive liability, workers compensation, fire and 'ALL-RISK" insurance
covering buildings, contents or personal injury or disability. Landlord and
Tenant shall each cause their insurance policies to contain clauses or
endorsements that the aforesaid releases shall not adversely affect or impair a
party's rights to recover under said insurance policies. In addition, it is
understood and agreed that if any such liability shall exceed the amount of the
effective and collectible insurance in question, the Tenant shall be liable for
such excess. It is understood and agreed to by Landlord that Tenant is insured.
ARTICLE 20.00 INDEMNITY
Both Parties agree to and shall save, hold and keep harmless and indemnify each
other from and for any and all payments, expenses, costs, attorney fees and from
and for any and all claims and liability for losses or damage to property or
injuries to persons occasioned wholly or in part by or resulting from any
negligent acts or omissions by the other parties or its agents, employees,
guests, licensees, invitees, subtenants, assignees or successors; or for any
cause or reason whatsoever arising out of or by reason of the occupancy by the
Tenant and the conduct of the Tenant's business.
ARTICLE 21.00 FIRE OR OTHER CASUALTY
Section 21.01 Repair; Rent Abatement
If the Premises shall be damaged by fire, the elements, accident or other
casualty 1("Casualty"), but the Premises are not thereby rendered inaccessible
or untenantable in whole or in part, Landlord shall at its expense cause such
damage to be repaired, without abatement of rent. If, as the result of casualty,
the Premises are rendered inaccessible or untenantable in part, Landlord shall
at its expense cause such damage to be repaired, and the Annual Basic Rent and
other charges shall be abated proportionately as to the portion of the Premises
rendered untenantable from the date
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of such Casualty until the Premises are rendered accessible and tenantable. If,
as the result of Casualty, the Premises are rendered wholly untenantable or
wholly inaccessible, Landlord may, subject to Section 21.02 at its expense cause
such damage to be repaired and the Annual Basic Rent and other charges shall be
abated from the date of such Casualty until the Premises, or any portion
thereof, have been rendered accessible and tenantable. In no event shall
Landlord be liable for interruption to Tenant's business or for damage to or
replacement or repair of Tenant's personal property, including inventory, trade
fixtures, floor coverings, furniture, supplies, records and other property
removable by Tenant under the provisions of this Lease. Landlord will have
thirty (30) days to notify Tenant as to whether or not Tenant space will be
repaired. Tenant will have the option to terminate Lease if the premises are not
substantially repaired within 120 days of Landlord's notice.
Section 21.02 Termination By Landlord
If the Premises are a) rendered substantially untenantable, made inaccessible or
b) damaged as a result of any cause which is not covered by Landlord's
insurance, or c) damaged in whole or in part during the last two years of the
Term (or of a renewal term, if any) or if Building is damaged to the extent of
fifty (50%) percent or more of the rentable floor area thereof, then in any such
event, Landlord may terminate this Lease by giving to Tenant notice within
ninety (90) days after the occurrence of such event. Annual Basic Rental and
other charges shall be adjusted as of the date of such cancellation. In the
event of a Lease cancellation, security deposit will be returned to Tenant
within 15 business days.
Section 21.03 Demolition
If the Building is so substantially damaged that it is reasonably necessary, in
Landlord's judgment, to demolish such Building for the purpose of reconstruction
or otherwise, Landlord may demolish the same in which event the rent shall be
abated and the lease terminated as if the Premises were rendered untenantable by
a Casualty. In no event, however, shall Landlord be required to reconstruct any
building demolished pursuant to this Section. Upon notice by Landlord to Tenant
of its intention not to reconstruct, this Lease shall terminate. In the event of
a Lease cancellation, security deposit will be returned to Tenant within five
(5) business days.
ARTICLE 22.00 CONDEMNATION
If the whole or any part of the Premises shall be taken under the power of
eminent domain, this Lease shall terminate as to the part so taken on the date
Tenant is required to yield possession thereof to the condemning authority.
Landlord shall make such repairs and alterations as may be practicable in order
to restore the part not taken to useful condition and the Annual Basic Rental
shall be reduced proportionately as to the portion of the Premises so taken. If
the portion of the Premises so taken renders the Premises unusable for the
purpose set forth in Section 2.05, either party may terminate this Lease as of
the date when Tenant is required to yield possession. Tenant shall not be
entitled to any portion of the award for the fee or leasehold of any element
hereof, and the entire award shall belong to Landlord. However, Tenant may apply
for reimbursement from the condemning authority for moving expenses and the
value of trade fixtures, if permitted. In addition, Tenant shall be able to
claim any award
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which is granted to Tenant based solely on the undepreciated value of its
leasehold improvements. Notwithstanding any provision in this Article to the
contrary, in no event shall Tenant be able to claim any award that will
adversely affect Landlord.
ARTICLE 23.00 INSPECTIONS BY LANDLORD
Tenant will, upon reasonable advance notice (including when possible in writing)
from Landlord, permit Landlord, its agents, employees and contractors to enter
all parts of the Premises during Tenant's business hours except in case of
emergency when Landlord can enter any time, to sufficiently inspect 'the same
and to enforce or carry out any provisions of this Lease.
ARTICLE 24.00 NO ASSIGNMENT, ETC.
Section 24.01 General
Tenant, for itself, its heirs, distributees, executors, administrators, legal
representatives, successors and assigns, covenants that it will not assign,
mortgage or encumber this Lease, nor sublease, or permit the Premises or any
part of the Premises to be used or occupied by others, without the prior written
consent of Landlord in each instance, which consent shall not be unreasonably
conditioned, withheld or delayed. The transfer of control, or of a majority of
the issued and outstanding capital stock, of any corporate tenant or subtenant
of this Lease or a majority interest in any partnership or other entity Tenant
or subtenant, however accomplished, and whether in a single transaction or in a
series of transactions, shall constitute an assignment of this Lease or of such
sublease requiring Landlord's prior written consent in each instance which
consent shall not be unreasonably withheld or delayed. The transfer of
outstanding capital stock of any corporate tenant, for purposes of this Article
24.00, will not include any sale of such stock by persons other than those
deemed "insiders" within the meaning of the Securities Exchange Act of 1934 as
amended, and which sale is effected through "over-the-counter-market" or through
any recognized stock exchange.
Section 24.02 Any Assignment Void
Any assignment or sublease in violation of Section 24.01 is void, and shall
constitute a default. If this Lease is assigned, or if the Premises or any part
of the Premises are subleased or occupied by anyone other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee, subtenant or
occupant, and apply the net amount collected to Rent. No assignment, sublease,
occupancy or collection shall be deemed a) a Waiver of the provisions of this
Article 24.00, or b) the acceptance of the assignee, subtenant or occupant as
Tenant; or c) release tenant from the further performance by Tenant of covenants
on the part of Tenant contained in this Lease. The consent by Landlord to an
assignment or sublease shall not be construed to relieve Tenant from obtaining
Landlord's prior written consent in writing to any further assignment or
sublease. No permitted subtenant shall assign or encumber its sublease or
further sublease all or any portion of its subleased space, or otherwise permit
the subleased space or any part of its subleased space to be used or occupied by
others, without Landlord's prior written consent in each instance, which consent
shall not be unreasonably conditioned, withheld or delayed. Landlord will
respond to Tenants
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request for consent within 10 business days from the date that all required
financial, background and whatever other information that Landlord reasonably
requires is presented to the Landlord by the Tenant. Landlord shall be entitled
to receive 100% of all excess rents received by sublandlord but sublandlord
shall be entitled to deduct such reasonable expenses related to securing the
sublease.
Section 24.03 Limitation on Remedies
Tenant shall not be entitled to make, nor shall Tenant make, any claim, and
Tenant by this Section waives any claim, for money damages (nor shall Tenant
claim any money damages by way of set-off, counterclaim or defense) based upon
any claim or assertion by Tenant that Landlord has unreasonably withheld or
unreasonably delayed its consent or approval to a proposed assignment or
subletting as provided for in this Article 24.00. Tenant's sole remedy shall be
an action or proceeding to enforce any such provision, or for specific
performance, injunction, or declaratory judgment.
ARTICLE 25.00 DEFAULT
Section 25.01 Events of Default
The following events are referred to collectively as "Events of Default", or
individually as an "Event of Default":
If default shall be made by Tenant in the due and punctual payment of any
rent when the same shall become due and payable, and such default shall
continue for a period of ten (10) business days after written notice from
Landlord stating that this Lease and the Term shall expire and terminate on
the date specified in such notice, which shall be at least ten (10)
business days after the giving of such notice, and upon the date specified
in such notice, this Lease and the Term and all rights of Tenant under this
Lease shall expire and terminate;
This Lease or the Premises or any part of the Premises are taken upon
execution or by other process of law directed against Tenant, or are taken
upon or subject to any attachment at the instance of any creditor or
claimant against Tenant, and the attachment is not discharged or disposed
of within fifteen business (15) days after its levy;
Tenant files a petition in bankruptcy or insolvency or for reorganization
or arrangement under the bankruptcy laws of the United State or under any
insolvency act of any state, or admits the material allegations of any such
petition by answer or otherwise, or is dissolved or makes an assignment for
the benefit of creditors;
Involuntary proceedings under any such bankruptcy law or insolvency act or
for the dissolution of Tenant are instituted against Tenant, or a receiver
or trustee is appointed for all or substantially all of the property of
Tenant, and such proceeding is not dismissed or such receivership or
trusteeship vacated within sixty (60) days after such institution or
appointment;
Tenant fails to take possession of the Premises on the Commencement date of
the Term; and such default shall continue for a period of ten (10) business
days after written notice from Landlord stating that this Lease and the
Term shall expire and terminate on the date specified in such notice, which
shall be at least ten (10) business days after the giving of such notice,
and upon the
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date specified in such notice, this Lease and the Term and all rights of
Tenant under this Lease shall expire and terminate;
(f) Tenant materially breaches any of the other agreements, terms,
covenants or conditions which this Lease requires Tenant to perform,
and such breach continues for a period of thirty (30) days after
written notice from Landlord to Tenant.
Section 25,02 Landlord's Remedies
If any one or more Events of Default set forth in Section 25.01 occurs (subject
to the notice provision in Section 25.01), then Landlord has the right, at its
election:
to give Tenant written notice of Landlord's intention to terminate this
Lease on the earliest date permitted by law or on any later date specified
in such notice, in which case Tenant's right to possession of the Premises
will cease and this Lease will be terminated, except as to Tenant's
liability, as if the expiration of the term fixed in such notices were the
end of the Term; or
without further demand or notice, to reenter and take possession of the
Premises or any part of the Premises, repossess the same, expel Tenant and
those claiming through or under Tenant, and remove the effects of both or
either, using such force for such purposes as may be necessary, without
being liable for prosecution, without being deemed guilty of any manner of
trespass, and without prejudice to any remedies for arrears of Monthly
Basic Rent or other amounts payable under this Lease or as a result of any
preceding breach of covenants or conditions; or
in addition to all other remedies specified in this Lease, Landlord can,
without further demand or notice, cure any Event of Default and charge
Tenant for the cost of effecting such cure, including, without limitation,
reasonable attorneys' fees and interest on the amount so advanced at a rate
equal to the Citibank Prime Rate as that rate may change from time to time
plus five (5%) percent provided that Landlord will have no obligation to
cure any such Event of Default of Tenant.
Should Landlord elect to reenter as provided in subsection (b), or should
Landlord take possession pursuant to legal proceedings or pursuant to any notice
provided by law, Landlord may, from time to time, without terminating this
Lease, relet the Premises or any part of the Premises in Landlord's or Tenant's
name, but for the account of Tenant, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions and upon such other terms (which may
include concessions of free rent and alteration and repair of the Premises) as
Landlord, in its sole discretion, may determine, and Landlord may collect and
receive the rent. Landlord will make best efforts to mitigate Tenants liability
under this Lease but will in no way be responsible or liable for any failure to
relet the Premises or any part of the Premises, or for any failure to collect
any rent due upon such reletting. No such reentry or taking possession of the
Premises by Landlord will be construed as an election on Landlord's part to
terminate this Lease unless a written notice of such intention is given to
Tenant. No notice from Landlord under this section or under a forcible or
unlawful entry and detainer statute or similar law will constitute an election
by Landlord to terminate this Lease unless such notice specifically so states.
Landlord reserves the right following any such reentry or reletting to exercise
its right to
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terminate this Lease by giving Tenant such written notice, in which event this
Lease will terminate as specified in such notice.
Section 25.03 Certain Damages
If Landlord does not elect to terminate this Lease as permitted in subsection
(a) of section 25.02, but on the contrary elects to take possession as provided
in subsection (b) of Section 25.02, Tenant will pay to Landlord; (a) Monthly
Basic Rent and other sums as provided in this Lease, which would be payable
under this Lease if such repossession had not occurred, less (b) the net
proceeds, if any, of any reletting of the Premises after deducting all
Landlord's reasonable and customary expenses in connection with such reletting,
including, without limitation, all repossession costs, brokerage commissions,
attorney1 fees, expenses of employees, alteration and repair costs and expenses
of preparation for such reletting. If, in connection with any reletting, the new
lease term extends beyond the existing Term, or the premises covered by such new
lease include other premises not part of the Premises, a fair apportionment of
the rent received from such reletting and the expenses incurred in connection
with such reletting as provided in this Section will be made in determining the
net proceeds from such reletting, and any rent concessions will be equally
apportioned over the term of the new lease. Tenant will pay such rent and other
sums to Landlord monthly on the day on which the Monthly Basic Rent would have
been payable under this Lease if possession had not been retaken, and Landlord
will be entitled to receive such rent and other sums from Tenant on each such
day.
Section 25.04 Continuing Liability After Termination
If this Lease is terminated on account of the occurrence of an Event of Default,
Tenant will remain liable to Landlord for damages in an amount equal to Monthly
Basic Rent and other amounts which would have been owing by Tenant for the
balance of the Term, had this Lease not been terminated, less the net proceeds,
if any, of any reletting of the Premises by Landlord subsequent to such
termination, after deducting all Landlord's expenses in connection with such
reletting, including, but without limitation, the expenses enumerated in section
25.03. Landlord will be entitled to collect such damages from Tenant monthly on
the day on which Monthly Basic Rent and other amounts would have been payable
under this Lease if this Lease had not been terminated, and Landlord will be
entitled to receive such Monthly Basic Rent and other amounts from Tenant on
each such day. Alternatively, at the option of Landlord, in the event this Lease
is so terminated, Landlord will be entitled to recover against Tenant, as
damages for loss of the bargain and not as a penalty, an aggregate rent which,
at the time of such termination of this Lease, represents the excess of the
aggregate of Monthly Base Rent and all other Rent payable by Tenant that would
have accrued for the balance of the of the Term over the aggregate rental value
of the Premises (such rental value to be computed on the basis of a tenant
paying not only a rent to Landlord for the use and occupation of the Premises,
but also such other charges as are required to be paid by Tenant under the terms
of this Lease) for the balance of such Term, both discounted to present value at
the lesser of eight (8%) percent or the discount rate of the New York Federal
Reserve Bank on the date of the Event of Default.
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Section 25.05 Cumulative Remedies
Any suit or suits for the recovery of the amounts and damages set forth in
Sections 25.03 and 25.04 may be brought by Landlord, from time to time, at
Landlord's election, and nothing in this Lease will be deemed to require
Landlord to await the date upon which this Lease or the Term would have expired
had there occurred no Event of Default. Each right and remedy provided for in
this Lease is cumulative and is in addition to every other right or remedy
provided for in this Lease or now or after the Commencement date existing at law
or in equity or by statute or otherwise, and the exercise or beginning of the
exercise by Landlord of any one or more of the rights or remedies provided for
in this Lease or now or after the Commencement Date existing at law or in equity
or by statute or otherwise will not preclude the simultaneous or later exercise
by Landlord of any or all other rights or remedies provided for in this Lease or
now or after the Commencement Date existing at law or in equity or by statute or
otherwise. All costs incurred by Landlord in collecting any amounts and damages
owing by Tenant pursuant to the provisions of this Lease or to enforce any
provision of this Lease, including reasonable attorneys' fees whether or not one
or more actions are commenced by Landlord, will also be recoverable by Landlord
from Tenant.
ARTICLE 26.00 DEFAULT BY LANDLORD
If Landlord fails to fulfill any of the agreements or provisions of this Lease
and such failure is not corrected within ten (10) business days or mutually
agreed upon by Landlord and Tenant after having received written notice from
Tenant, then, in that event, in addition to all rights, powers or remedies
available to Tenant by law, Tenant may upon prior written notice to Landlord:
(I) correct Landlord's defaults and deduct the cost from monies due to Landlord;
(II) withhold payments of rent and other amounts (if any) due to Landlord, until
such default has been corrected; or (III) terminate this Lease and all
obligations hereunder if the specified default is not corrected within sixty
(60) days after having received notice from Tenant.
ARTICLE 27.00 SUCCESSORS AND ASSIGNS
This Lease and the covenants and conditions therein contained shall inure to the
benefit of and be binding upon Landlord, its successors and assigns, and shall
be binding upon Tenant, its successors and assigns, and shall inure to the
benefit of Tenant and only such assigns of Tenant to whom the assignment by
Tenant has been consented to by Landlord in writing.
ARTICLE 28.00 GOVERNING LAW
This Lease shall be governed by the laws of the State of New Jersey.
ARTICLE 29.00 CAPTIONS
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Captions and headings are for convenience and reference only.
ARTICLE 30.00 BROKERS
CB Richard Ellis is the Broker of record and Landlord will be responsible to pay
any fees or commissions due the broker as mutually agreed to by Landlord and
Broker.
ARTICLE 31.00 WRITTEN MODIFICATION
This writing is intended by the parties as a final expression of their agreement
and as a complete and exclusive statement of the terms thereof, all
negotiations, considerations and representations between the parties having been
incorporated herein. No representations, understandings, or agreements have been
made or relied upon in the making of this Lease other than those specifically
set forth herein. This Lease may only be modified by a writing signed by all of
the parties hereto or their duly authorized agents.
ARTICLE 32.00 SEVERABILITY
If any term or provision, or any portion thereof, of this Lease, or the
application thereof to any person or circumstances shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of
such term or provision to persons or circumstance other than those as to which
it is held invalid or unenforceable, shall not be affected thereby, and each
other term and provision of this Lease shall be valid and be enforced to the
fullest extent permitted by law.
ARTICLE 33.00 NOTICES
Any notices required or authorized to be sent pursuant to the provisions hereof
shall be sent to the parties as follows:
a) to Landlord at: Albany Street
Plaza Real Estate Management Company
c/o Boraie Development LLC.
120 Albany Street, Suite 305
New Brunswick, New Jersey 08901
b) to Tenant at: Arbinet-thexchange, Inc.
120 Albany Street, Tower II
Suite 400
New Brunswick, NJ 08901
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or such other addresses as shall be designated by the parties hereto upon
written notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when sent by prepaid,
registered, overnight carrier, (i.e. Federal Express) or certified mail, return
receipt requested.
ARTICLE 34.00 OPTION TO RENEW
Section 34.01 Term; Notice
Tenant is hereby granted an option to extend this term of this Lease for one (1)
successive period of three (3) or five (5) years either commencing upon
expiration of the term (the "Option Period"), provided Tenant is not in default
under the Lease and gives to Landlord at least six months written notice prior
to the expiration of the Term of Tenant's exercise of such option. The Annual
Basic Rent during the extended term shall be ninety-five (95%) percent of the
fair market value of the Premises, but not less than $26.00 per rentable square
foot
Section 34.02 Rent
All the terms and conditions of this Lease shall be in effect during the Option
Period except that the Annual Basic Rent for the Option Period (see Exhibit B)
which was mutually agreed upon by Landlord and Tenant at the execution of this
Lease.
ARTICLE 35.00 JOINT AND SEVERAL LIABILITY
If two or more individuals, corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sign this lease
as Tenant, the liability of each such individual, corporation, partnership or
other business association to pay rent and perform all other obligations
hereunder shall be deemed to be joint and several. In like manner, if the Tenant
named in this lease shall be a partnership or other business association, the
members of which are, by virtue or statue or general law, subject to personal
liability, the liability of each such member shall be joint and several.
ARTICLE 36.00 NOT A JOINT VENTURE
Any intention to create a joint venture or partnership relationship between the
parties hereto is hereby expressly disclaimed.
ARTICLE 37.00 NO OPTION
The submission of this lease for examination does not constitute a reservation
of or option for the Premises, and this Lease becomes effective only upon
execution and delivery thereof by Landlord and Tenant.
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ARTICLE 38.00 THIRD PARTY BENEFICIARY
Nothing contained in this lease shall be construed so as to confer upon any
other party the rights of a third party beneficiary as to any provision
contained herein.
ARTICLE 39.00 COMPLIANCE WITH ALL LAWS
The Tenant shall promptly comply with all laws, ordinances, rules, regulations,
requirements and directives of the Federal, State and Municipal Governments or
Public Authorities and of all their departments, bureaus and subdivisions,
applicable to and affecting the Premises, their use and occupancy, for the
correction, prevention and abatement of nuisances, violations or other
grievances in, upon or connected with the Premises, during the Term, provided
the offense is not due to Tenant's particular manner of use (as opposed to mere
office use); and shall promptly comply with all orders, regulations,
requirements and directives of the Board of Fire Underwriters or similar
authority and of any insurance companies which have issued or are about to issue
policies of insurance covering the Premises and its contents for the prevention
of fire or other casualty, damage or injury, at the Tenant's own cost and
expense. Tenant shall be allowed to pursue any relief allowed by law.
ARTICLE 40.00 LIMITATION ON RECOURSE
Tenant specifically agrees to look solely to Landlord's interest in Albany
Street Plaza for the recovery of any judgments from Landlord, it being agreed
that Landlord (and its shareholders, venturers, and partners, and their
shareholders, venturers and partners and all of their officers, directors and
employees) shall not be personally liable for any such judgments.
ARTICLE 41.00 FORCE MAJEURE
Landlord shall have no liability to Tenant, nor will Tenant have any right to
Terminate this actual or constructive eviction, because of Landlord's failure to
perform any of its obligations in the Lease if the failure is due to reasons
beyond Landlord's reasonable control, including, without limitation, strikes or
other labor difficulties; inability to obtain necessary Governmental permits and
approvals (including building permits or Certificates of Occupancy);
unavailability or scarcity of materials; war; riot; civil insurrection;
accidents; acts of God; and governmental preemption in connection with a
national emergency. If Landlord fails to perform its obligations because of any
reasons beyond Landlord's reasonable control (including those enumerated above),
the period for Tenant's performance shall be extended day for day for the
duration of the cause of Landlord's failure.
ARTICLE 42,00 NO RECORDATION
Neither this Lease nor any short form or memorandum hereof shall be recorded by
the Tenant or Landlord. Such recordation shall be a default under this Lease,
and the
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Tenant or Landlord hereby irrevocably appoints the Tenant or Landlord its
attorney in fact for the limited purpose of causing the removal from the record
of any such recordation.
ARTICLE 43.00 EFFECT OF SALE
A sale, conveyance or assignment of Albany Street Plaza shall operate to release
Landlord from liability from and after the effective date of such sale,
conveyance or assignment upon all of the covenants, terms and conditions of this
Lease, express or implied, except those which arose prior to such effective
date, and, after the effective date of such safe, conveyance or assignment,
Tenant shall look solely to Landlord's successor in interest in and to this
Lease. This Lease shall not be affected by any such sale, conveyance or
assignment, and Tenant will attorn to Landlord's successor in interest in this
Lease.
ARTICLE 44.00 TENANT'S ECRA WARRANTY
Tenant represents and warrants that it is not an "Industrial Establishment" as
defined in the Environmental Cleanup Responsibility Act, N.J.S.A. 13:1K-6 et
seq. ("ECRA"). Tenant shall not do or suffer anything that will cause it to
become an Industrial Establishment under ECRA during the term of this Lease.
Landlord may from time to time require Tenant at Tenant's sole expense to
provide proof satisfactory to Landlord that Tenant is not an Industrial
Establishment. In the event that Tenant now is or hereafter becomes an
Industrial Establishment then, in addition to all of the Landlord's other rights
and remedies herein, at its sole expense Tenant shall comply with all
requirements of ECRA, howsoever arising, related directly or indirectly to the
Tenant and/or its operations and/or the Premises. This Article shall survive the
expiration or sooner termination of the Lease.
ARTICLE 45.00 USE OF ASBESTOS
Landlord will inform Tenant if asbestos has been used for fireproofing or other
purposes in the construction of the building. If asbestos has been used,
Landlord will give Tenant evidence that proper testing and/or monitoring of the
air within the building has or is being done to insure that a health hazard does
not now or will not as long as Tenant occupies the Premises, exist. Landlord
will be responsible for all Hazmat unless Tenant is responsible for the
installation of any such hazardous materials.
ARTICLE 46.00 CORPORATE TENANCY
If Tenant is a Corporation, the undersigned officers of Tenant hereby warrant
and certify to Landlord that tenant is a corporation in good standing and duly
organized under the laws of the State of New Jersey, or if chartered in a State
other than the State of New Jersey, is a Corporation in good standing and duly
organized under the laws of such State and is authorized to do business in the
State of New Jersey. The undersigned representatives of Tenant hereby further
warrant and certify to Landlord
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that they are officers of the Corporation and as such are authorized and
empowered to bind the Corporation to the terms of this Lease by their signatures
thereto.
ARTICLE 47.00 PARKING
For the term of this lease and including any extensions, Landlord will provide
to Tenant fifteen (15) parking spaces and Tenant will pay at $85 per month to
Tenant for the term of this Lease, if additional parking is needed, each parking
space will be at $85.00 per space per month or the then current rate. If the
additional parking is not available at the Albany Street Plaza Parking Deck,
Landlord will help secure spaces at the Ferren Mall Parking Deck at the current
market rate at no cost to Landlord. Two (2) spaces of the 15 initial spaces will
be reserved on the ground level and the remaining 13 will be in common with
others. If Landlord defaults in its obligation to provide any of the 13 spaces
in common in the Albany Street Plaza Parking Deck then Landlord shall provide
space in the Spring Street parking lot.
ATTEST: ALBANY STREET PLAZA REAL ESTATE MANAGEMENT COMPANY
FEB 7th, 2003 ----------------------------------------
Date Omar Boraie
Managing Partner
ATTEST: ARBINET-THEXCHANGE, Inc.
FEB 6th, 2003 ----------------------------------------
Date Peter P. Sach
CAO and Treasurer
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EXHIBIT A
FLOOR PLAN - LEASED PREMISES
(TO BE SUPPLIED BY TENANT)
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EXHIBIT B
Basic Rental Schedule - Article 4.00
Rental Year and Date Amount Per Annum Amount Per Month
-------------------- ---------------- ----------------
Year 1 $149,050.00 $12,420.83
Year 2 $152,437.50 $12,703.13
Year 3 $155,825.00 $12,985.42
Year 4 $159,212.50 $13,267.71
Year 5 $162,600.00 $13,550.00
OPTION 1
Years 6-8 $176,150.00 $14,679.17
Or
Years 6-10 $176,150.00 $14,679.17
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EXHIBIT C
WORK LETTER
Landlord, at Landlord's sole expense, shall deliver the Premises fully
constructed per architectural drawings and specifications to be mutually
approved by Landlord and Tenant. The architectural drawings shall be provided by
the Building's architect and included in the Landlord's Work. The materials used
by Landlord to construct the office space shall be of high quality typical of
executive office finishes. It is anticipated that the Tenant's layout will
include the following components:
1.) 10-12 private offices, 2 conferences rooms, reception area,
mail/copier room, kitchen, data closet, area for 10-20 moveable
workstations.
2.) Fully wired (with Category5e cabling) for voice and data.
3.) Fully operational HVAC system with thernostatic controls.
4.) Lighting and electrical plan.
5.) 2 means of access/eggress to the Premises from the common area on the
floor.
6.) Built-in shelving and cabinetry in the kitchen and mail/copier rooms.
7.) Glass side-lights for each private office.
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EXHIBIT D
MASTER LEASE
This Master Lease Agreement (hereinafter referred to as the "Lease") dated
December 1, 2002, is made by and between ALBANY STREET PLAZA URBAN RENEWAL LLC,
a New Jersey Partnership having an address c/o Boraie Realty, 120 Albany Street,
Suite 305, New Brunswick, New Jersey 08901 ("Landlord") and ALBANY STREET PLAZA
REAL ESTATE MANAGEMENT COMPANY, a New Jersey Partnership having an address c/o
Boraie Realty, 120 Albany Street, Suite 305, New Brunswick, New Jersey
("Tenant").
WITNESSETH
In consideration of Ten ($10.00) Dollars, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
the mutual covenants contained herein, Landlord and Tenant agree with each other
as follows:
ARTICLE I DEMISED PREMISES AND TERM OF LEASE
Section 1.01 Demised Premises
Landlord hereby leases and lets to Tenant, and Tenant hereby takes and hires
from Landlord, upon and subject to the terms, covenants, conditions and
provisions hereof, ail that certain plot, piece or parcel of land known and
designated on the Official Tax Map of the City of New Brunswick as Block 16,
Lots 12.02 and more commonly known as 120 Albany Street, Tower II, - 36 - New
Brunswick, New Jersey 08901 (the "Land") together with all buildings and other
improvements erected or about to be erected thereon with such items of personal
property, fixtures and equipment as are used in connection with the operation of
such buildings and improvements, excepting such items of personal property as
are owned by Tenants of Tenant (the "Sub-Tenants") under executed leases
(hereinafter collectively referred to as the "Improvements"). The Land and
Improvements comprise, collectively, a first class retail shopping and
commercial center.
Section 1.02 Term Commencement
The Term of this Lease shall commence (the "Commencement Date") upon the full
and complete execution of this Lease.
Section 1.03 Term Expiration
This Lease shall be effective for so long as Landlord and the Demised Premises
remain subject to the provisions of the Urban Renewal Corporation and
Association Law of 1961, N.J.S.A. 40:55C-40 et seq. (the "Law"), as the Law be
amended, supplemented or revised, from time to time. In no event, however, shall
this Lease extend beyond April 30, 2030 unless extended by the mutual written
agreement of Landlord and Tenant.
ARTICLE II RENT
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Section 2.01 Payment of Rent
All rent (the "Rent") payable to Landlord under this Lease shall be paid to
Landlord at the address specified in Article XV hereof, or as Landlord may
otherwise designate, in lawful money of the United States.
Section 2.02 Rent
Tenant shall pay annually to Landlord as Rent the sum of $1,140,000.00, payable
in equal monthly installments of $95,000.00 payable in advance on the first day
of each full calendar month during the Term. The first such monthly payment
shall be paid on the Commencement Date and shall include prorated Rent for the
period from the Commencement Date to the first day of the first full calendar
month of any year during the Term. The annual Rent to be paid by Tenant to
Landlord may be revised, readjusted or recalculated at the election of Landlord
at least thirty (30) days prior to the expiration of any rental year during the
Term.
Section 2.03 Landlord and Tenant agree that all Rent payable hereunder shall be
net to Landlord and all costs, expenses and obligations of every kind and nature
relating to the Demised Premises shall be paid by Tenant, and Landlord shall be
indemnified and saved harmless from and against such costs, expenses and
obligations.
ARTICLE III TAXES, ASSESSMENTS, ANNUAL SERVICE CHARGE
Section 3.01 Impositions
The term "Impositions" shall mean all real estate taxes, duties or assessments
(special or otherwise), water and sewer rents whether ordinary or extraordinary,
general or special, foreseen or unforeseen, of any kind and nature whatsoever,
which at any time during the Term of this Lease shall be assessed, levied,
confirmed, imposed upon or grow out of, or become due and payable in respect of,
or become a lien on or attributable in any manner to the Demised Premises, or
the rents receivable there from, or any part thereof or any use thereon or any
facility located therein or used in connection therewith or any charge or other
payment required to be paid to any governmental authority, whether or not any of
the foregoing shall be a so called "Real Estate Tax". In this regard, Tenant
acknowledges that Landlord shall be entitled to an "in lieu" payment of real
estate taxes (hereinafter referred to as the "Annual Service Charge") for the
Improvements located on the Demised Premises, and which Annual Service Charge is
afforded to Landlord pursuant to the Law. Tenant agrees that it will take all
steps necessary to maintain and preserve the Annual Service Charge during the
Term of this Lease. From and after the Commencement Date, Tenant shall pay (or
Tenant shall cause its Sub-Tenants to pay pursuant to executed leases) all
Impositions and/or the Annual Service Charge attributable to the Demised
Premises in a timely manner, and Landlord shall be indemnified and saved
harmless from and against the payment of such Impositions.
Section 3.02 Other Governmental Charges
Tenant shall also pay (or Tenant shall cause its Sub-Tenants to pay) before any
fine, penalty, interest or cost may be added thereto or become due or be imposed
by operation of law for the non-payment thereof, all excises, levies, licenses
and permit
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fees and other governmental charges, general and special, ordinary and
extraordinary, unforeseen and foreseen, of any kind and nature whatsoever which
at any time prior to or during the Term of this Lease may be assessed, levied,
confirmed, imposed upon the Demised Premises or any part thereof or any
appurtenance thereto as a result of or in connection with the use to which the
Demised Premises are put by Tenant (notwithstanding that such use may have been
consented to by Landlord).
ARTICLE IV SURRENDER
Section 4.01 Surrender of Demised Premises
Tenant shall on the last day of the Term, or upon- an earlier termination of
this Lease, quit and surrender the Demised Premises to the possession of
Landlord without delay, broom clean and in good order, condition and repair
(reasonable wear and tear excepted), free and clear of all lettings, and
occupancies or subleases, and free and clear of all liens and encumbrances other
than those, if any, created by Landlord.
Section 4.02 Landlord Not Liable
Landlord shall not be responsible for any loss or damage occurring to any
property owned by Tenant or any Sub-Tenant.
Section 4.03 Survival
The provisions of this Article IV shall survive any termination of this Lease.
ARTICLE V INSURANCE
Section 5.01 Hazard Insurance
Tenant shall carry and/or Tenant shall cause its Sub-Tenants to carry pursuant
to executed leases, Insurance for the Demised Premises (or any portion thereof
in the case of a Sub-Tenant) against loss or damage by fire and against loss or
damage by other risks now or hereafter embraced by "extended coverage", and
against such other risks as Landlord from to time may reasonably designate, with
a replacement cost (depreciation) endorsement, in amounts sufficient to prevent
Landlord or Tenant from becoming a co-insurer under the terms of the applicable
policies, but in any event in an amount not less than the "full replacement
cost" without any deduction for physical depreciation of the Improvements. Such
"Full Replacement Cost" shall be determined at Tenant's cost and expense from
time to time at the request of Landlord, by an appraiser, engineer, architect or
contractor designated by Landlord.
Section 5.02 Liability and Other insurance
Tenant shall cause its Sub-Tenants to secure and maintain such liability
(Personal Injury and Property) insurance and such other Insurance and in such
amounts as Landlord, in its sole and absolute discretion, shall deem appropriate
to protect Landlord and Tenant.
ARTICLE VI REPAIRS
Section 6.01 Landlord: No Repair Obligations
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Landlord shall not be required to furnish any services or facilities or to make
any repairs or alterations in or to the Demised Premises. Tenant assumes the
full and sole responsibility for the condition, operation, repair, replacement,
maintenance and management of the Demised Premises.
ARTICLE VII COMPLIANCE WITH LAWS, ORDINANCES, ETC.
Section 7.00 Obligations of Law and Boards
Throughout the Term, Tenant, at its sole cost and expense, shall promptly comply
with all present and future laws, ordinances, orders, rules, regulations and
requirements of all federal, state and municipal governments, courts,
departments, commissions, boards and officers, and all orders, rules and
regulations of the National Board of Fire Underwriters or any other body
exercising similar functions, foreseen or unforeseen, structural or
nonstructural, interior or exterior, ordinary as well as extraordinary, which
may be applicable to the demised Premises and the sidewalks and curbs adjoining
the Demised Premises or to the use or manner of use of the Demised Premises or
the Sub-Tenants thereof, whether or not such law, ordinance, order, rule,
regulation or requirement shall interfere with the use and enjoyment of the
Demised Premises.
ARTICLE VIII NO WASTE
Section 8.00 No Waste
Tenant will not do or suffer any waste or damage, disfigurement or injury to the
Demised Premises or any part thereof.
ARTICLE IX CONDEMNATION
Section 9.01 Entire Demised Premises Taken
If the whole of the Demised Premises shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, then the Term shall cease
and terminate as of the date on which possession of the Demised Premises is
actually surrendered to the condemning authority, and on such date all Rent
shall be paid up to that date and thereupon this Lease shall terminate and be
null and void as if such date were the date originally set forth herein for the
expiration of the Term and neither Landlord nor Tenant shall have any further
obligations to each other pursuant to this Lease. Tenant shall in no event have
any claim against Landlord or the condemning authority for the value of any
unexpired Term.
Section 9.02 Portion of the Demised Premises Taken
If any part of the Demised Premises shall be acquired or condemned by eminent
domain for any public or quasi-public use or purpose, and in the event that such
partial taking or condemnation shall, in Tenant's reasonable business judgment,
render the Demised Premises unsuitable for the authorized business of the
Tenant, then in any such event the Term shall, at Tenant's option, exercised by
written notice to Landlord with thirty (30) days after any such taking, cease
and terminate as of the date on which possession of the portion of the Demised
Premises in question is actually surrendered
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to the condemning authority and on such date all Rent shall be paid up to that
date and thereupon this Lease shall terminate and be null and void as if such
date were the date originally set forth herein for the expiration of the Term
and neither Landlord or Tenant shall have any further obligations to each other
pursuant to this Lease. Tenant shall in no event, have any claim against
Landlord or the condemning authority for the value of the unexpired Term. In the
event of a partial taking or condemnation which is not extensive enough to
render the Demised Premises unsuitable for the business of Tenant, then Landlord
shall make the net condemnation proceeds allocable to the Demised Premises
available to Tenant for the restoration of the Demised Premises, and Tenant
shall promptly restore the Demised Premises to a condition comparable to their
condition at the time immediately prior to "the condemnation or taking, less,
however, the portion lost in the taking, and this Lease shall continue in full
force and effect pursuant to the terms and conditions hereof; provided, however,
that Rent shall abate in proportion to the area of the Demised Premises taken.
If the condemnation award made available to Tenant by Landlord is insufficient
to pay the entire cost of the restoration work, Tenant shall supply the amount
of any deficiency. For purposes of determining the amount of the funds available
for restoration of the Demised Premises from the condemnation award, said amount
will be deemed to be that part of the award which remains after payment of
Landlord's reasonable expenses incurred in recovering same and which represents
a portion of the total sum so available (excluding any award or other
compensation for land) which is equitably allocable to the Demised Premises.
ARTICLE X ASSIGNMENT AND SUBLETTING
Section 10.00 Assignment, Subletting, Etc.
Tenant shall not assign or otherwise encumber this Lease without Landlord's
prior written consent. Tenant may freely sublet the Demised Premises or any
portion thereof as Tenant, in its sole and absolute discretion, shall deem
appropriate.
ARTICLE XI DEFAULT
Section 11.00 Events of Default
If any one or more of the following events (herein sometimes called "Events of
Default") shall happen:
if default shall be made in the due and punctual payment of any Rent or any
part thereof when the same shall become due and payable, and such default
shall continue for a period of ten (10) days after written notice thereof;
or_ if default shall be made by Tenant in the performance of or compliance
with any of the covenants, agreements, terms, or conditions contained in
this Lease other than those referred to in the foregoing subdivision (a),
and such default shall continue for a period of ten (10) days after written
notice thereof from Landlord to Tenant, provided, that if Tenant proceeds
with due diligence during such ten (10) day period to cure such default and
is unable by reason of the nature of the work involved, to cure the same
within the said ten (10) days, its time to do so shall be extended for an
additional period not to exceed the time necessary to cure the same,
provided, however, that Tenant diligently prosecutes same to completion,
such extension of time shall not subject
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Landlord or Tenant to any liability, civil or criminal, and the interest of
Landlord in this Lease shall not be jeopardized thereby; or if at any time
during the Term there shall be filed by Tenant in any court pursuant to any
statute, either of the United States or of the State of New Jersey, a
petition in bankruptcy or insolvency, or for reorganization, or for the
appointment of a receiver or trustee of all or a portion of Tenant's
property or if Tenant makes an assignment for the benefit of creditors or
petitions for or enters into an arrangement; or
if at any time during the Term there shall be filed against Tenant in any
court pursuant to any statue either of the United States or of the State of
New Jersey, a petition in bankruptcy or insolvency, or for reorganization,
or for appointment of a receiver or trustee of all or a portion of Tenant's
property, and if within sixty (60) days after the commencement of any such
proceeding against Tenant, the same shall not have been dismissed;
then and in any such event, Landlord at any time thereafter may give written
notice to Tenant specifying such Event of Default or Events of Default and
stating that this Lease and the Term shall expire and terminate on the date
specified in such notice, which shall be at least ten (10) days after the giving
of such notice, and upon the date specified in such notice, this Lease and the
term and all rights of Tenant under this Lease shall expire and terminate. The
termination of this Lease by virtue of an Event of Default or Events of Default
by Tenant shall not, however, impair any lease entered into by Tenant, as
Landlord, with any Sub-Tenant for the rental of all or portion of the Demised
Premises.
ARTICLE XII UTILITIES
Section 12.00 Utilities
Tenant agrees to make its own arrangements, at Tenant's cost and expense, for
any gas, electricity and any other utility required in connection with the use
and operation of the Demised Premises. Tenant shall pay (or cause its
Sub-Tenants to pay pursuant to executed leases) before delinquency, directly to
the appropriate company or governmental agency, all charges for all utilities
consumed on the Demised Premises.
ARTICLE XIII SUBORDINATION
Section 13.01 Subordination of this Lease
At landlord's election, this Lease shall be subordinate or superior to the lien
of any present or future mortgage irrespective of the time of recording of such
mortgage. If, from time to time, Landlord shall elect that this Lease be
subordinate to the lien of any mortgage, Landlord may exercise such election by
giving notice thereof to Tenant. However, from time to time thereafter, Landlord
may elect that this Lease be paramount to the lien of such mortgage, and may
exercise such election by giving notice thereof to tenant. The exercise of any
of the elections provided in this Section shall not exhaust Landlord's right to
elect differently thereafter, from time to time. At the election of Landlord,
this clause shall be self-operative and no further instrument shall be required.
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Upon Landlord's request, from time to time, Tenant shall (a) confirm in writing
and in recordable form that this Lease is so subordinate or so paramount (as
Landlord may elect) to the lien of any mortgage and/or (b) execute an instrument
making this Lease so subordinate or so paramount (as Landlord may elect) to the
lien of any Mortgage, in such form as may be required by an applicable
mortgagee.
Section 13.02 Subordination of Leases with Sub-Tenants
Any lease entered into by Tenant, as Landlord, and any Sub-Tenant for the rental
of all or a portion of the Demised Premises shall be subordinate to this Lease.
Tenant and any Sub-Tenant shall, upon Landlord's request from time to time (a)
confirm in writing that such lease is subordinate to this Lease or to the lien
of any mortgage made by Landlord and/or (b) execute an instrument making such
lease subordinate to this Lease or to the lien of any mortgage made by Landlord.
ARTICLE XIV ATTORNMENT
Section 14.00 Attornment
If the demised Premises is encumbered by a mortgage and such mortgage is
foreclosed, or if the Demised Premises is sold pursuant to such foreclosure or
by reason of a default under said mortgage, then, notwithstanding such
foreclosure, such sale, or such default (i) Tenant shall not disaffirm this
Lease or any of its obligations hereunder, and (ii) at the request of the
applicable mortgagee or purchaser at such foreclosure or sale, Tenant shall
attorn to such mortgagee or purchaser and execute a new lease for the Demised
Premises setting forth all of the provisions of this Lease except that the term
of such new Lease shall be for the balance of the Term.
ARTICLE XV NOTICES
Section 15.00 Notices
Any notices required or authorized to be pursuant to the provisions hereof shall
be sent to the parties as follows:
a) To Landlord at: ALBANY STREET PLAZA URBAN
RENEWAL LLC.
c/o Boraie Realty
120 Albany Street, Suite 305
New Brunswick, NJ 08901
b) To Tenant at: ALBANY STREET PLAZA REAL
ESTATE MANAGEMENT
COMPANY c/o Boraie Realty
120 Albany Street, Suite 305
New Brunswick, NJ 08901
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or such other addresses as shall be designated by the parties hereto upon
written notice. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given when sent by prepaid
registered or certified mail, return receipt requested.
ARTICLE XVI MISCELLANEOUS
Section 16.01 Captions
The captions of this Lease are for convenience and reference only and in no, way
define, limit or describe the scope or intent of this Lease nor in any way
affect this Lease.
Section 16.02 Controlling Law
This Lease shall be construed and enforced in accordance with the laws of the
State of New Jersey.
Section 16.03 Integration; Modifications
Upon the execution and delivery hereof, this instrument shall constitute the
entire lease between the Landlord and Tenant for the Demised Premises. This
Lease cannot be changed orally but only by an agreement in writing and signed by
the party against whom enforcement of any waiver, change, modification or
discharge is sought.
ARTICLE XVII Covenants to Bind and Benefit Respective Parties
Section 17.00 Binding Effect
The covenants and agreements herein contained shall bind and inure to the
benefit of Landlord and Tenant and their respective legal representatives,
successors and assigns, except as otherwise provided herein.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed as
of the day and year first above written.
WITNESS:
LANDLORD: ALBANY STREET
PLAZA URBAN RENEWAL LLC.
A New Jersey Partnership
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--------------------------------------------------------------------------------
Partner
WITNESS:
TENANT: ALBANY STREET PLAZA REAL
ESTATE MANAGEMENT COMPANY A New
Jersey Partnership
, Partner
-----------------------------------------
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EXHIBIT E
BUILDING STANDARD CLEANING SCHEDULE
FOR ALBANY STREET
PLAZA
Daily:
Empty wastepaper baskets.
Vacuum clean or carpet sweep all carpets and rugs, dry mop all resilient and
hard floors.
Dust and wipe clean all office furniture and window sills, washing window sills
when necessary (desk surfaces are to be uncluttered and free of materials).
Wipe clean all water fountains and coolers; empty waste water.
Dust and damp dust, as necessary, interiors of all wastepaper baskets.
Remove wastepaper and normal office refuse.
Sweep and dust all private stairways.
Clean all men's and ladies' toilets, sanitize all fixtures.
Mop all ceramic tile, marble and terrazzo flooring.
Periodically:
Wash all exterior windows twice a year.
Clean interior glass twice per year.
Dust while in place all pictures, frames, charts, graphs and similar wall
hangings not reached in night cleaning schedule quarterly.
Dust all vertical surfaces and walls, partitions, doors, doorbucks and other
surfaces not reached in night cleaning schedule quarterly.
Dust all Venetian blinds quarterly.
Dust ceiling surfaces, other than acoustical ceiling material, quarterly.
Vacuum all radiation and under window air conditioning equipment and reassemble
every three years.
Clean all building standard lighting fixtures.
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After cleaning all lights shall be turned off, doors locked and offices left in
orderly fashion.
EXHIBIT F
RULES AND REGULATIONS
The sidewalks and public portions of the building, such as entrances, passages,
courts, elevators, vestibules, stairways, corridors or halls, shall not be
obstructed or encumbered by Tenant or used for any purpose other than ingress
and engress to and from the premises in accordance with Tenant's permitted uses.
No curtains, blinds, shades, louvered openings or screens shall be attached to
or hung in, or used in connection with, any window or door of the Premises
without the prior written consent of Landlord, such approval not to be
unreasonably withheld.
Excepting such store identification signs as are approved in writing by landlord
as to both design and location, no sign, advertisement, notice or other
lettering shall be exhibited, inscribed, painted or affixed by Tenant on any
part of the outside of the premises or building or on corridor walls.
The sashes, sash doors, skylights, windows, heating, ventilating and
air-conditioning vents and doors that reflect or admit light and air into the
halls, passageways or other public places in the building shall not be covered
or obstructed by Tenant, nor shall any bottles, parcels or other articles be
placed on the window sills.
The water and wash closets and other plumbing fixtures shall not be used for any
purposes other than those for which they were constructed, and no sweepings,
rubbish, rags or other substances shall be thrown therein. All damages resulting
from any misuse of the fixtures shall be borne by tenant, if caused by it or its
agents, employees, contractors, licensees, or invitees.
No bicycles, vehicles or animals (except seeing eye dogs) of any kind shall be
brought into or kept in or about the Premises. No cooking shall be done or
permitted by tenant on the Premises except in conformity with law and then only
in the lunchroom, as set forth in Tenant's plans, which is to be primarily used
by Tenant's employees for heating beverages and food. Tenant shall not cause or
permit any unusual or objectionable odors to be produced upon or permeate from
the Premises.
Tenant shall not make, or permit to be made, any unseemly or disturbing noises
or disturb or interfere with occupants of the building or neighboring buildings
or premises or those having business with them, whether by the use of any
musical instrument, radio, talking machine, unmusical noise, whistling, singing,
or in any other way, with the exception of the Tenant's public address system.
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Neither Tenant, nor any Tenant servants, employees, agents, visitors or
licensees, shall at any time bring or keep upon the Premises inflammable,
combustible or explosive fluid, or chemical substance, other than reasonable
amount of cleaning fluid, or solvents required in the normal operation of
Tenant's business offices. No offensive gases or liquids will be permitted.
No additional locks or bolts of any kind shall be placed upon any of the doors
or windows by Tenant, nor shall any changes be made in existing locks or the
mechanism thereof, without the prior written approval of Landlord and unless and
until a duplicate key is delivered to Landlord. Tenant shall, upon termination
of its tenancy, restore to Landlord all keys' of stores, offices and toilet
rooms, either furnished to, or otherwise procured by, Tenant.
All moves in or out of the Premises, or the carrying in or out of any safes,
freight, furniture or bulky matter of any description must take place during the
hours which Landlord or its agent may reasonably determine from time to time,
pursuant to article 10.02. Only the building freight elevator shall be used for
such purposes. Tenant will insure that movers take reasonable measures required
by Landlord to protect the building (e.g. windows, carpets, walls, doors, and
elevator cabs) from damage.
Landlord reserves the right to exclude from the building at all times other than
business hours all persons who do not present a pass to the building signed by
Tenant. Issuance of such passes by landlord for Tenant shall be on a reasonable
basis.
The Premises shall not be used for lodging or sleeping or for any immoral or
illegal purpose.
The requirements of Tenant will be attended to only upon application at the
office of the building. Building employees shall not perform any work or do
anything outside of their regular duties, unless under special instructions from
the office of Landlord.
There shall not be used in any space, or in the public halls of any building,
either by Tenant or by its jobbers or others, in the delivery or receipt of
merchandise, any hand trucks, except those equipped with rubber tires and side
guards. No hand trucks, mail carts or mail bags shall be used in passenger
elevators, provided adequate access or use of the freight elevator is reasonably
available to Tenant, or Tenant's agents.
Landlord reserves the right to modify or delete any of the foregoing Rules &
Regulations and to make such other and reasonable Rules and Regulations as in
its judgment may from time to time be needed for the safety, care and
cleanliness of the Premises, and for the preservation of good order therein.
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DATED
AMEC PROPERTIES LIMITED
- to -
PACIFIC GATEWAY EXCHANGE (U,K.) LIMITED
----------
LEASE
relating to Ground Floor premises forming part of a building at
12/18 Paul Street London EC2
Term: 10 years from 11th June 1999
Rent: (pound)60,000 p.a. for the first 5
years subject to review
----------
LAYTONS
Carmelite 50 Victoria
Embankment
Blackfriars London
EC4Y0LS
Tel: 0171 842 8000 Fax: 0171 842 8080
E-mail: laytons@laytons.com
Ref: DPW/81499
<PAGE>
INDEX
1. PRELIMINARY..............................................................1
Definitions..............................................................1
Gender...................................................................4
Number...................................................................4
Obligations..............................................................4
Statutory References.....................................................4
Covenants by the Tenant..................................................4
Superior Lease:..........................................................4
DEMISE HABENDUM AND REDDENDUM..................................................5
TENANT'S COVENANTS.............................................................6
Pay Rents................................................................6
Discharge Outgoings......................................................6
Service Charge...........................................................7
Value Added Tax..........................................................9
Observance of Statutory Requirements.....................................9
Fire Precautions:.......................................................10
Repair..................................................................10
38S Decoration and Maintenance..........................................11
Rubbish and Appearance:.................................................12
Matters Prejudicial to the Demised Premises:............................12
Improvements and Alterations............................................14
Signs and Erections.....................................................14
Planning:...............................................................15
Inspection and Remedial Works...........................................17
User:...................................................................18
Assignment and Underletting:............................................19
Facilitate Landlord's Dealings with the Demised Premises................24
Landlord's Access to the Demised Premises...............................25
Provision of Information to the Landlord................................25
Payment of Fees and Expenses............................................26
Indemnities.............................................................27
Yield Up................................................................28
Observe Covenants.......................................................29
4. LANDLORD'S COVENANTS....................................................29
Quiet Enjoyment.........................................................29
Services................................................................30
Superior Lease..........................................................30
5. INSURANCE...............................................................30
Maintenance of Cover....................................................30
Tenant to Insure Glass..................................................30
Suspension of Rent on Occurrence of Insured Risk........................31
Access for reinstate |
