New Jersey-East Hanover-120 Eagle Rock Avenue Lease - CIN Eagle Rock LLC and ARIS Corp.
LEASE
between
CIN EAGLE ROCK, L.L.C.,
"Landlord"
and
ARIS CORPORATION,
"Tenant"
June 16, 2000
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TABLE OF CONTENTS
ARTICLE 1 - BUILDING, PREMISES AND TERM.................................... 1
1.1. Building....................................................... 1
1.2. Premises....................................................... 1
1.3. Term........................................................... 1
1.4. Delivery and Acceptance of Premises............................ 3
1.5. Initial Tenant Work............................................ 3
ARTICLE 2 - RENT........................................................... 5
2.1. Rent - Generally............................................... 5
2.2. Fixed Rent..................................................... 6
2.3. Tax Payments................................................... 6
2.4. Operating Payments............................................. 9
ARTICLE 3 - TENANT'S USE AND OCCUPANCY..................................... 12
3.1. Use of Premises................................................ 12
3.2. Building Rules and Regulations................................. 12
3.3. Use of Public Areas............................................ 12
3.4. Parking........................................................ 13
3.5. Tenant's Signage............................................... 13
ARTICLE 4 - UTILITIES AND SERVICES......................................... 14
4.1. Definitions.................................................... 14
4.2. Electricity.................................................... 14
4.3. Water.......................................................... 15
4.4. HVAC Service................................................... 16
4.5. Access......................................................... 17
4.6. Cleaning....................................................... 17
4.7. Building Directory............................................. 17
4.8. Interruptions.................................................. 17
ARTICLE 5 - TENANT'S ALTERATIONS, IMPROVEMENTS AND PROPERTY................ 18
5.1. Tenant's Alterations........................................... 18
5.2. Tenant's Improvements and Tenant's Property.................... 19
5.3. Title, Mechanics Liens, Union Conflicts, Etc. ................. 20
ARTICLE 6 - RESERVATION OF REAL PROPERTY; LANDLORD'S ACCESS................ 21
6.1. Reservation of Real Property................................... 21
6.2. Landlord's Access to Premises.................................. 21
ARTICLE 7 - QUIET ENJOYMENT; UNDERLYING INTERESTS.......................... 22
7.1. Quiet Enjoyment................................................ 22
7.2. Underlying Interests........................................... 22
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ARTICLE 8 - BASIC LEASE OBLIGATIONS........................................ 23
8.1. Insurance...................................................... 23
8.2. Indemnification................................................ 24
8.3. Compliance with Laws........................................... 25
8.4. Repairs and Maintenance........................................ 25
8.5. Damage and Destruction......................................... 26
8.6. Condemnation................................................... 27
8.7. Compliance with ISRA........................................... 27
8.8. Spill Act...................................................... 31
8.9. Other Environmental Laws....................................... 32
ARTICLE 9 - ASSIGNMENT, SUBLETTING AND MORTGAGING.......................... 33
9.1. General Prohibition............................................ 33
9.2. Recapture...................................................... 33
9.3. Consent........................................................ 34
9.4. Profits........................................................ 35
9.5. Miscellaneous.................................................. 36
ARTICLE 10 - SURRENDER; HOLDOVER........................................... 38
10.1. Surrender...................................................... 38
10.2. Holdover....................................................... 38
ARTICLE 11 - DEFAULT BY TENANT; LANDLORD'S REMEDIES........................ 39
11.1. Events of Default.............................................. 39
11.2. Termination, Re-Entry, Damages, Etc............................ 40
11.3. Late Payments of Rent.......................................... 41
11.4. Landlord's Cure and Enforcement Rights......................... 41
11.5. Additional Remedies............................................ 42
11.6. Security....................................................... 42
11.7. Lien on Personal Property...................................... 43
ARTICLE 12 - LIMITATIONS ON LANDLORD'S LIABILITY........................... 43
12.1. Limitation to Landlord's Estate................................ 43
12.2. No Liability For Certain Damages, Etc. ........................ 43
12.3. Events of Force Majeure........................................ 43
12.4. Withholding of Consents/Approvals.............................. 43
ARTICLE 13 - GENERAL DEFINITIONS........................................... 44
13.1. General Definitions............................................ 44
13.2. Terms, Phases and References................................... 47
ARTICLE 14 - MISCELLANEOUS................................................. 48
14.1. Notices........................................................ 48
14.2. Brokerage...................................................... 49
14.3. Estoppel Certificates.......................................... 49
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14.4. Affirmative Waivers............................................ 49
14.5. No Waivers..................................................... 49
14.6. No Representations............................................. 50
14.7. Memorandum of Lease............................................ 50
14.8. Partnership Tenant............................................. 50
14.9. Authority of Tenant............................................ 50
14.10. Governing Law.................................................. 50
14.11. Entire Agreement; Modifications................................ 50
14.12. Severability................................................... 51
14.13. Interpretation................................................. 51
14.14. No Third Party Beneficiaries................................... 51
14.15. Submission of Draft Lease...................................... 51
14.16. Counterparts................................................... 51
14.17. Relocation..................................................... 51
ARTICLE 15 - ADDITIONAL PROVISIONS......................................... 52
15.1. Initial Third Floor Expansion.................................. 52
15.2. Renewal Options................................................ 56
15.3. Expansion Rights............................................... 58
EXHIBITS
EXHIBIT A Legal Description of Land
EXHIBIT B Floor Plan of Premises
EXHIBIT C Building Rules and Regulations
EXHIBIT D Cleaning Specifications
EXHIBIT E Alteration Rules and Regulations
EXHIBIT F Floor Plan of Expansion Space
EXHIBIT G Appraisal Provisions
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LEASE, dated June 16, 2000, between CIN EAGLE ROCK, L.L.C., a Delaware
limited liability company, having an office at 2100 McKinney Avenue, Suite 700,
Dallas, Texas 75201 (herein called "LANDLORD") and ARIS CORPORATION, a
Washington corporation, having an office at 2229 112th Avenue NE, Bellevue,
Washington 98004 (herein called "TENANT").
WITNESSETH:
Landlord hereby leases to Tenant, and Tenant hereby hires from Landlord,
the Premises (as hereinafter defined), for the Term (as hereinafter defined), at
the Rent (as hereinafter defined) and otherwise upon, subject to and in
accordance with the following terms and conditions of this Lease.
In respect thereof, Landlord and Tenant hereby agree as follows:
ARTICLE 1 -- BUILDING, PREMISES AND TERM
1.1. Building.
The building in which the Premises are located (herein called the
"BUILDING") is located on the land (herein called the "LAND") described in
Exhibit A attached hereto and made a part hereof, and the Building, together
with the Land, is known as Eagle Rock Executive Offices IV, having a street
address of 120 Eagle Rock Avenue, East Hanover, New Jersey.
1.2. Premises.
The premises demised by this Lease (herein called the "PREMISES") are
located on and comprise a portion of the third (3rd) floor of the Building,
substantially as shown hatched on the floor plan attached hereto as Exhibit B
and made a part hereof. For purposes of this Lease, the Premises shall be
conclusively deemed to consist of 13,385 rentable square feet.
1.3. Term.
1.3.1. The term of this Lease (herein called the "TERM") shall commence on
the Commencement Date (as hereinafter defined in Section 1.3.2 hereof), and
shall end at 11:59 p.m. on the last day of the month in which occurs the fifth
(5th) anniversary of the day immediately preceding the Commencement Date (herein
called "EXPIRATION DATE"), or on such earlier date upon which the term of this
Lease shall expire or be cancelled or terminated pursuant to any of the
conditions or covenants of this Lease or pursuant to law.
1.3.2. The "COMMENCEMENT DATE", subject to the following provisions of this
Section 1.3.2, shall be the earliest of (a) the date that Tenant shall have
commenced occupancy of the Premises for the conduct of Tenant's business therein
or (b) the date that Landlord shall have (1) substantially completed the Initial
Tenant Work (as hereinafter defined in Section 1.5 hereof), and (2) if required
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for the lawful occupancy of the Premises, obtained a certificate of occupancy
permitting the Premises to be used for office purposes. Notwithstanding the
foregoing, (i) if Landlord shall be unable to deliver possession of the Premises
to Tenant on the date that the Commencement Date otherwise would have occurred
pursuant to this Section 1.3.2, then the "Commencement Date" shall be the date
upon which Landlord is able to so deliver possession (it being agreed that
Landlord shall not be subject to any liability by reason of any inability to
give possession nor shall the validity of this Lease be impaired thereby, nor
shall the Term be extended thereby), and (ii) if Landlord is delayed in causing
the Commencement Date to occur by reason of delays caused or occasioned by
Tenant (herein called "TENANT DELAYS"), then, in addition to any other rights or
remedies that Landlord may have on account thereof, at Landlord's option, (x)
the "Commencement Date" shall be deemed to be the date Landlord would have
caused the Commencement Date to occur absent such Tenant Delays, (y) Tenant
shall pay all costs and expenses incurred by Landlord that result from any
Tenant Delays, including, without limitation, any costs and expenses
attributable to increases in the cost of labor and materials, and/or (z) such
Tenant Delays shall be deemed a default under this Lease. "Tenant Delays" shall
include, without limitation, (a) Tenant's failure to furnish, approve or
authorize any plans and/or specifications within the time periods set forth
herein or otherwise reasonably required by Landlord, (b) Tenant's delay or
failure in submitting to Landlord any information, authorization or approvals
within the time periods set forth herein or otherwise reasonably required by
Landlord, (c) changes in or additions to any plans or specifications as
requested by Tenant (notwithstanding Landlord's approval of such changes), (d)
the performance of any work in the Premises by Tenant or any person or entity
employed by Tenant, (e) Tenant's request for materials, components, finishes or
improvements other than Landlord's Building standard or which are not available
in a commercially reasonable time, (f) Tenant's failure to pay, when due, any
amounts required to be paid by Tenant in connection with the Initial Tenant
Work, (g) changes in or postponements to the Initial Tenant Work requested by
Tenant, and/or (h) any error in plans or other documents caused by Tenant or any
Tenant Party (as hereinafter defined). Notwithstanding the foregoing, until such
time as nine (9) calendar days of Tenant Delays have occurred, (i) Landlord
shall give Tenant written notice of any situation that would constitute a Tenant
Delay, as hereinabove described, and (ii) with respect to such situation for
which such notice has been given, a Tenant Delay shall not be deemed to have
occurred until the expiration, without such situation having been remedied by
Tenant, of three (3) business days after the date of Landlord's notice to Tenant
advising Tenant of such situation. Tenant hereby acknowledges that the
Commencement Date is indeterminate and shall occur only as provided in this
Section 1.3.2. Tenant, at anytime after the occurrence of the Commencement Date,
shall, upon the demand of Landlord, execute, acknowledge and deliver to Landlord
an instrument in form reasonably satisfactory to Landlord confirming the
Commencement Date; but Tenant's failure to execute, acknowledge and deliver such
instrument shall not affect the occurrence of the Commencement Date or otherwise
affect the validity of this Lease. Landlord and Tenant acknowledge that Landlord
has entered into an agreement with the existing occupant of the Premises
pursuant to which such existing occupant shall be required to vacate the
Premises in connection with this Lease. Landlord agrees to use commercially
reasonable efforts to enforce such agreement so as to cause the removal of such
existing occupant from the Premises.
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1.4. Delivery and Acceptance of Premises.
Tenant has heretofore inspected the Premises, is fully familiar with the
condition thereof and, subject only to the substantial completion of the Initial
Tenant Work pursuant to the provisions of Section 1.5 below, shall accept the
Premises on the Commencement Date in their "AS IS" condition.
1.5. Initial Tenant Work.
Landlord, subject to, upon and in accordance with the following provisions
of this Section 1.5, shall perform the work needed to prepare the Premises for
Tenant's initial occupancy thereof (such work being herein called the "INITIAL
TENANT WORK"):
1.5.1. Tenant, on or before June 30, 2000, shall submit to Landlord, for
Landlord's approval, a complete and coordinated set of working, finished and
detailed construction drawings and specifications for the Initial Tenant Work
(such drawings and specifications are herein called the ("INITIAL TENANT WORK
PLANS"), which Initial Tenant Work Plans shall (i) comply with all Legal
Requirements (as defined in Article 13 hereof) and Building standards, and (ii)
be sealed by a licensed architect and suitable for the issuance of any required
building permit. Landlord's approval of the Initial Tenant Work Plans shall not
be unreasonably withheld, unless the work described thereon either (x) affects
the exterior (including the appearance) of the Building or any other portion of
the Building outside of the Premises, (y) is structural or affects the
structural elements of the Building, or (z) affects the usage or the proper
functioning of the Building Systems (as defined in Article 13 hereof) or any
part thereof.
1.5.2. Landlord makes no representations or warranties regarding the
compliance of the Premises with the Americans with Disabilities Act of 1990 (the
"ADA"). With respect to the current condition of the Premises and any
alterations or improvements that Tenant makes to the interior of the Premises
(or which are made on Tenant's behalf), regardless of whether Tenant has
obtained Landlord's consent to such alterations or improvements, Tenant shall be
fully responsible for complying with and paying any costs associated with any
and all requirements of the ADA. In addition, if any alterations are required to
be made to the Premises due to changes in or regulations under the ADA or
judicial interpretations of the requirements of the ADA coming into existence
following the Commencement Date, or due to changes in Tenant's use of the
Premises or in the nature of Tenant's conduct of its business in the Premises
(including but not limited to any changes in use or business conduct arising out
of a sublease or assignment, or resulting in the Premises being deemed a "PLACE
OF PUBLIC ACCOMMODATION" under the ADA), Tenant shall be fully responsible for
complying with and paying any costs associated with any and all requirements of
the ADA arising in connection therewith.
1.5.3. Landlord, promptly after its approval of the Initial Tenant Work
Plans, shall apply to the appropriate Governmental Authorities (as defined in
Article 13 hereof) for any building permit(s) which shall be required in
connection with Landlord's performance of the Initial Tenant Work.
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1.5.4. Landlord, promptly after the date on which any required building
permit(s) are issued, of if no building permit is required, the date on which
Landlord shall have approved the Initial Tenant Work Plans, shall commence to
perform the Initial Tenant Work, and thereafter diligently prosecute the Initial
Tenant Work to completion. Landlord shall solicit competitive bids from at least
three (3) subcontractors designated by Landlord (subject to Tenant's approval,
which shall not be unreasonably withheld or delayed) for each trade required in
connection with the Initial Tenant Work, and work for each trade shall, unless
otherwise instructed by Tenant, be awarded to the subcontractor for such trade
submitting the lowest bid in accordance with the applicable bid documents.
Landlord shall perform the Initial Tenant Work in accordance with the approved
Initial Tenant Work Plans, in compliance with all Legal Requirements, and
otherwise in a good and workmanlike manner.
1.5.5. Landlord shall arrange for any inspections, and shall apply for and
obtain any certificate of occupancy, required by any Governmental Authority.
1.5.6. Tenant, in respect of the Initial Tenant Work, shall pay Landlord
an amount equal to the excess (if any) of (i) the Landlord's TW Cost (as
hereinafter defined), over (ii) the Tenant's Allowance (as hereinafter defined);
which amount shall be paid by Tenant, from time to time, in one or more
installments, within ten (10) days after any written request therefor from
Landlord. Landlord shall be entitled to require (a) prior to commencing the
Initial Tenant Work, payment by Tenant to Landlord of forty-five percent (45%)
of Landlord's estimate of such excess amount and (b) within thirty (30) days
after commencing the Initial Tenant Work, payment by Tenant to Landlord of
forty-five percent (45%) of Landlord's estimate of such excess amount, and (c)
upon substantial completion of the Initial Tenant Work, payment by Tenant to
Landlord of the remaining unpaid balance, if any, of the actual amount of such
excess amount. The "LANDLORD'S TW COST" shall mean an amount equal to 113% of
the aggregate of all construction and ancillary costs actually incurred by
Landlord in the performance of, or otherwise in connection with, the Initial
Tenant Work (which costs shall include without limitation any (i) any profit or
override payable by Landlord to the contractors prosecuting the Initial Tenant
Work, and (ii) architectural, engineering, design, permitting and/or government
inspection costs incurred by Landlord). The "TENANT'S ALLOWANCE" shall mean an
amount equal to TWO HUNDRED TWENTY-SEVEN THOUSAND FIVE HUNDRED FORTY-FIVE and
00/100 DOLLARS ($227,545.00) (i.e., $17.00 per rentable square foot of the
Premises).
1.5.7. The Initial Tenant Work shall be deemed to be "SUBSTANTIALLY
COMPLETED" even though minor details or adjustments of or in such work (herein
called "PUNCHLIST ITEMS") are not then completed. Tenant, within fifteen (15)
days after the Commencement Date, shall prepare, and deliver to Landlord, a list
(herein called the "PUNCHLIST") of all punchlist items with respect to the
Initial Tenant Work; any punchlist items (other than latent defects) not timely
and properly included on the Punchlist shall be deemed waived by Tenant.
Landlord shall, at its expense, complete or correct all punchlist items timely
and properly included on the Punchlist, within thirty (30) days of the delivery
of the Punchlist to Landlord (or if such completion or correction work cannot
with due diligence be completed or corrected within thirty (30) days, then
within a reasonable period of time thereafter, provided that Landlord is
prosecuting such work diligently); provided, however, that in no event shall
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Landlord be obligated to repair any damage to any of the Initial Tenant Work
that was caused by Tenant or any Tenant Parties (as defined in Article 13
hereof).
1.5.8. Tenant's occupancy of the Premises for the conduct of its usual
business shall be deemed Tenant's acceptance of the Premises and Tenant's
agreement that Landlord has substantially completed the Initial Tenant Work and
that the Commencement Date has occurred.
1.5.9. Tenant shall be permitted access to the Premises, upon reasonable
prior notice to Landlord and subject to Landlord's scheduling requirements to
avoid interruption of or interference with the Initial Tenant Work, prior to the
Commencement Date solely for the purpose of allowing Tenant to install
furniture, equipment and cabling for its equipment and telephones. Such early
access shall be at Tenant's sole risk. Such early access shall be granted upon
the condition that Tenant's employees, agents or servants shall not interfere
with Landlord's performance of the Initial Tenant Work. Such early access shall
be subject to all of the terms, covenants, provisions and conditions of this
Lease (except for the obligation to pay Rent). Landlord shall not be liable in
any way for any injury, loss or damage occurring as a result of Tenant's early
access to the Premises. Landlord shall have the right to impose such additional
reasonable conditions on Tenant's early access to the Premises as Landlord, in
its sole discretion, deems appropriate.
ARTICLE 2 - RENT
2.1. RENT - GENERALLY.
2.1.1. The rents payable under this Lease (herein collectively referred to
as the "RENT") shall be and consist of (i) the Fixed Rent (as hereinafter
defined in Section 2.2 below), and (ii) additional rent (herein called
"ADDITIONAL CHARGES") consisting of Tax Payments (as hereinafter defined in
Section 2.3 below), Operating Payments (as hereinafter defined in Section 2.4
below) and all other charges as shall become due from and payable by Tenant to
Landlord pursuant to the terms of this Lease. All Additional Charges shall be
deemed "rent" for all purposes, including Landlord's remedies for non-payment
thereof.
2.1.2. Tenant covenants and agrees to pay all Rent, as and when the same
is due and payable hereunder, without notice or demand therefor and without any
abatement, deduction or setoff for any reason whatsoever, except, in either
case, as may be expressly provided in this Lease. If, pursuant to any provision
of this Lease, Tenant shall be obligated to pay any Additional Charges and no
due date or payment period therefor is specified herein, then such Additional
Charges shall be paid by Tenant to Landlord within thirty (30) days after being
billed therefor. All Rent shall be paid in lawful money of the United States to
Landlord at its office, or such other place, or to Landlord's agent and at such
other place, as Landlord shall designate by notice to Tenant. All Rent shall be
paid by good and sufficient check (subject to collection). Rent checks shall be
payable initially to: "CIN EAGLE ROCK, L.L.C., Linque Management Co., as Agent"
and shall be sent to:
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CIN EAGLE ROCK, L.L.C.
Linque Management Co., as Agent
P.O. Box 26019N
Newark, New Jersey 07101-6619
2.2. Fixed Rent.
2.2.1. Tenant shall pay to Landlord a fixed rent (herein called "FIXED
RENT") at the following rates for the following periods:
(a) THREE HUNDRED FOURTEEN THOUSAND FIVE HUNDRED FORTY-SEVEN
and 48/100 DOLLARS ($314,547.48) (i.e., $23.50 per rentable square foot of
the Premises), per annum, for the period from the Commencement Date to and
including the day immediately preceding the second (2nd) anniversary of
the Commencement Date; and
(b) THREE HUNDRED TWENTY-ONE THOUSAND TWO HUNDRED FORTY and
00/100 DOLLARS ($321,240.00) (i.e., $24.00 per rentable square foot of the
Premises), per annum, for the period from the second (2nd) anniversary of
the Commencement Date to and including the Expiration Date.
2.2.2. The Fixed Rent shall be payable commencing on the Commencement
Date and thereafter in equal monthly installments in advance on the first day of
each and every calendar month during the Term, except as hereinafter provided in
this Section 2.2.2. Tenant shall pay, upon Tenant's execution and delivery of
this Lease, an amount equal to 1/12th the annual rate of Fixed Rent set forth in
Section 2.2.1(a) above, which amount shall be applied against the Fixed Rent for
the calendar month immediately following the calendar month in which the
Commencement Date occurs. If the Commencement Date or the Expiration Date occurs
on a day other than the first or last day, respectively, of a calendar month,
then the Fixed Rent for the partial calendar month in which the Commencement
Date or the Expiration Date occurs shall be a prorated portion of a full monthly
installment of Fixed Rent, and, in the case of the partial month in which
Commencement Date occurs, shall be payable on the Commencement Date.
2.3. Tax Payments.
2.3.1. For the purposes of this Lease, the following definitions shall
apply:
"TAX YEAR" shall mean each calendar year (whether or not such period
is fixed as the fiscal year for Taxes (as hereinafter defined) or any component
thereof by any Governmental Authority) the whole or any portion of which is
within the Term. If a fiscal period fixed for any component of Taxes by any
Governmental Authority is a period other than a Tax Year, then such component of
Taxes shall be averaged over the number of calendar months in such fiscal period
and each such monthly portion shall be included in Taxes for the Tax Year in
which such calendar month
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occurs. Taxes allocable to a Tax Year earlier than the Tax Year in which they
are assessed shall be included the calculation of Taxes for the Tax Year to
which such Taxes are allocable.
"BASE TAX YEAR" shall mean Tax Year commencing on January 1, 2000,
and ending December 31, 2000.
"BASE TAX AMOUNT" shall mean the Taxes for the Base Tax Year.
"TENANT'S SHARE" shall mean a fraction (expressed as a percentage,
and carried to four decimal places), the numerator of which is the number of
rentable square feet contained in the Premises and the denominator of which is
172,000. As of the date hereof, Tenant's Share is 7.7820%.
"TAXES", for any Tax Year, shall mean (A) all real estate taxes,
water and sewer rents or charges, school taxes, vault taxes, assessments and
special assessments (provided that special assessments shall be allocated and
paid over the longest period permitted by applicable law without the imposition
of a penalty or interest) levied, assessed or imposed upon or with respect to
the Real Property (as defined in Article 13 hereof) by any Governmental
Authority, and (B) any expenses incurred by Landlord in contesting such taxes,
charges or assessments and/or the assessed value of the Real Property, which
expenses shall be allocated to the Tax Year to which such expenses relate, but
shall not exceed the reduction in Taxes obtained thereby. Taxes shall also
include all taxes assessed or imposed upon Landlord with respect to the rents
received from the Real Property (but not any general income taxes, gross
receipts taxes or corporate franchise taxes, except to the extent provided in
the following sentence). If, at any time during the Term, the methods of
taxation prevailing on the date hereof shall be altered so that in lieu of, or
as an addition to or as a substitute for, the whole or any part of the taxes,
charges or assessments now levied, assessed or imposed, there shall be levied,
assessed or imposed a new tax, assessment, levy, imposition, license fee or
charge wholly or partially as a capital levy or otherwise on the Real Property
or the rents received from the Real Property, then such additional or substitute
tax, assessment, levy, imposition, fee or charge shall be included within
"Taxes" for purposes hereof. Finally, "Taxes" shall also include any payments in
lieu of "Taxes" payable in connection with any tax exemption obtained from any
Governmental Authority with respect to the Real Property.
2.3.2. If Taxes for any Tax Year subsequent to the Base Tax Year shall
exceed the Base Tax Amount, Tenant, as hereinafter provided, shall pay to
Landlord an amount (herein called the "TAX PAYMENT") equal to Tenant's Share of
the amount by which the Taxes for such Tax Year are greater than the Base Tax
Amount. In respect of any such Tax Year which begins prior to the Commencement
Date or ends after the Expiration Date, the Tax Payment shall be prorated to
correspond to that portion of such Tax Year occurring within the Term.
2.3.3. The Tax Payment for each Tax Year shall be due and payable as
provided in the following provisions of this Section 2.3.3. Landlord, at any
time prior to, during, or after the end of, any Tax Year, may deliver to Tenant
a statement for the Tax Payment for such Tax Year (each such statement being
herein called a "TAX STATEMENT"). Tenant, for each Tax Year, shall pay to
Landlord
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the Tax Payment indicated by any such Tax Statement in installments, consistent
with the number and timing of the installments of and in which Landlord shall
pay Taxes to the applicable Governmental Authorities, with each such
installment of the Tax Payment being due on the later to occur of (x) the date
that is thirty (30) days prior to the date the corresponding installment of
Taxes is due to the applicable Governmental Authority (or, with respect to
installments that may become due after the Expiration Date, the date that is
ninety (90) days prior to the Expiration Date), and (y) the date that is twenty
(20) days after the rendering of the Tax Statement.
2.3.4. If, at any time after the delivery of any Tax Statement for any
Tax Year, it is determined for any reason (including any reduction in Taxes
comprising the Base Tax Amount) that the Tax Payment for such Tax Year is
greater than the amount set forth on such Tax Statement, then Landlord may
furnish to Tenant a revised or corrected Tax Statement for such Tax Year, and,
in any such case, Tenant shall pay to Landlord the additional amount indicated
by the revised or corrected Tax Statement within ten (10) days after Tenant's
receipt thereof. Landlord's failure to render, or delay in rendering, a Tax
Statement, or a revised or corrected Tax Statement, for any Tax Year shall not
prejudice Landlord's right to thereafter render a Tax Statement, or a revised
or corrected Tax Statement, for such Tax Year or any other Tax Year, nor shall
the rendering of a revised or corrected Tax Statement for any Tax Year
prejudice Landlord's right to thereafter render a further revised or corrected
Tax Statement for such Tax Year.
2.3.5. Only Landlord shall be eligible to institute tax reduction or other
proceedings to challenge Taxes or to reduce the assessed valuation of the Real
Property; Tenant hereby waives any right Tenant may now or in the future have to
institute any such proceedings or otherwise challenge Taxes. If, at any time
after the delivery of any Tax Statement for any Tax Year, Landlord shall receive
a refund of Taxes for such Tax Year, then Landlord shall furnish to Tenant a
revised Tax Statement for such Tax Year, and, if such revised Tax Statement
shall set forth a Tax Payment that is less than that set forth on the previous
Tax Statement, then Landlord, within ten (10) days after Tenant's receipt of
such revised Tax Statement, shall pay to Tenant the amount of the overpayment
indicated thereby. Nothing contained in this Lease shall obligate Landlord to
bring any application or proceeding seeking a reduction in Taxes or assessed
valuation. If the Taxes payable for the Base Tax Year or any other Tax Year are
later reduced by final determination of legal proceedings, settlement, or
otherwise, such reduced amount as finally determined shall become the Base Tax
Amount (in the event of a reduction applicable to the Base Tax Year) or the
Taxes for the Tax Year in question (in the event of a reduction applicable to a
Tax Year other than the Base Tax Year) for purposes of this Lease and such
reduced amount shall be used to determine the Tax Payment payable by Tenant
applicable to any Tax Year affected by such reduction, and all Tax Payments
theretofore paid or payable under this Lease shall be recomputed on the basis of
such reduction, and, if applicable, Tenant shall pay to Landlord as an
Additional Charge within thirty (30) days after being billed therefor any
deficiency between the amount of such payments computed prior to the reduction
and the amount thereof due as a result of such recomputation.
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2.4. Operating Payments.
2.4.1. For the purposes of this Lease, the following definitions shall
apply:
"OPERATING YEAR" shall mean any calendar year, the whole or any
portion of which is included within the Term.
"BASE OPERATING YEAR" shall mean the Operating Year commencing on
January 1, 2000, and ending December 31, 2000.
"BASE OPERATING AMOUNT" shall mean the Operating Expenses for the
Base Operating Year.
"OPERATING EXPENSES", for any Operating Year, shall be determined in
accordance with the provisions of the following paragraphs (A) through (C),
sequentially applied:
(A) "Operating Expenses" shall mean all expenses paid or incurred
by, or on behalf of, Landlord in respect of the operation, management,
maintenance and/or repair of the Real Property, including, without limitation,
(i) salaries, wages and fringe benefits of employees and contractors engaged in
such operation, management, maintenance and/or repair; (ii) payroll taxes,
worker's compensation, uniforms and related expenses (whether direct or
indirect) for such employees; (iii) the cost of fuel, gas, steam, electricity,
heat, ventilation, air-conditioning and chilled or condenser water, water, sewer
and other utilities, together with any taxes and surcharges on and fees paid in
connection with the calculation and billing of, such utilities; (iv) the cost of
painting and/or decorating all areas of the Real Property (excluding, however,
any leasable areas of the Building); (v) the cost of casualty, liability,
fidelity, rent and all other insurance regarding the Real Property and/or any
property thereon (together with amounts paid or incurred on account of any
commercially reasonable deductible therein); (vi) the cost of all supplies,
tools, materials and equipment, whether by purchase or rental, used in the
operation, management, maintenance and/or repair of the Real Property; (vii) the
fair rental value of any Building office or other space in the Building used in
connection with the operation, management, maintenance and/or repair of the Real
Property, and all office expenses (e.g., telephone, utility, stationery)
incurred in connection therewith; (viii) the cost of security services, and
cleaning and janitorial services, including, without limitation, glass cleaning,
snow and ice removal and garbage and waste collection and/or disposal; (ix) the
cost of all interior and exterior landscaping and all temporary exhibitions
located at or within the Real Property; (x) the cost of alterations and/or
repairs made in or to the Real Property; (xi) management fees (or, if Landlord
self-manages, or has an Affiliate of Landlord manage, the Real Property, an
amount in lieu thereof equal to 3-1/2% of the gross receipts for the Real
Property); (xii) all reasonable costs and expenses of legal, bookkeeping,
accounting and other professional services; (xiii) fees, dues and other
contributions paid by or on behalf of Landlord to civic or other real estate
organizations customarily joined by landlords of similar buildings and computed
as if this Building was the only building owned by Landlord; (xiv) the cost of
subsidizing the Building's cafeteria or any similar specialty service provided
for tenants and occupants of the Building generally; (xv) all costs,
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charges and expenses incurred by Landlord in connection with any change of any
company providing electric supply or service, including, without limitation,
maintenance, repair, installation and service costs associated therewith; and
(xvi) all other fees, costs, charges and expenses properly allocable to the
operation, management, maintenance and/or repair of the Real Property, in
accordance with then prevailing customs and practices of the commercial office
real estate industry in the general vicinity of the Real Property.
(B) "Operating Expenses" shall not, however, include the following
items: (1) depreciation of the Building; (2) interest on, and amortization of,
Mortgages and other debts; (3) the cost of tenant improvements made for
tenant(s) of the Building, including permit, license and inspection fees; (4)
brokerage commissions; (5) financing or refinancing costs; (6) the cost of any
work or services performed for any tenant(s) of the Building (including Tenant),
whether at the expense of Landlord or such tenant(s), to the extent that such
work or services are in excess of the work or services which Landlord, at its
expense, is required to furnish Tenant under this Lease; (7) the cost of any
electricity consumed in the Premises or any other leasable area of the Building;
or (8) Taxes.
(C) If during any relevant period (i) any rentable space in the
Building shall be vacant or unoccupied, and/or (ii) the tenant or occupant
(including, without limitation, Landlord or any Affiliates of Landlord) of any
space in the Building undertook to perform work or services therein in lieu of
having Landlord perform the same and the cost thereof, if the same were
performed by Landlord, would have been included in Operating Expenses, then, in
any such event(s), the Operating Expenses for such period shall be adjusted to
reflect the Operating Expenses that would have been incurred if such space had
been occupied or if Landlord had performed such work or services, as the case
may be. In addition, if, subsequent to the Base Operating Year, Landlord incurs
an Operating Expense for an item of cost that was not incurred during the Base
Operating Year (other than an item of cost that replaces or is substituted for a
similar item of cost that was incurred during the Base Year), the amount
allocable to such item in the Operating Payment payable by Tenant shall be
limited to the amount by which such item of cost exceeds the amount that would
have been payable by Landlord for such item of cost during the Base Year had
Landlord incurred such item of cost during the Base Year, as reasonably
determined by Landlord.
2.4.2. For each Operating Year subsequent to the Base Operating Year,
Tenant, as hereinafter provided, shall pay to Landlord an amount (the
"OPERATING PAYMENT") equal to Tenant's Share of the amount by which the
Operating Expenses for such Operating Year exceed the Base Operating Amount. In
respect of any such Operating Year which is partly within and partly without
the Term, the Operating Payment shall be prorated to correspond to that portion
of such Operating Year occurring within the Term.
2.4.3. Landlord, prior to the commencement of, or during, any Operating
Year, may furnish to Tenant a written statement setting forth Landlord's
reasonable estimate of the Operating Payment for such Operating Year (such
estimate, as the same may be revised as hereinafter provided, the "ESTIMATED
OPERATING PAYMENT"). Tenant shall pay to Landlord on the first day of each month
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during any Operating Year, an amount equal to one-twelfth (1/12th) of the
Estimated Operating Payment for such Operating Year. If, however, Landlord, for
any Operating Year, shall not furnish such a written statement or only furnish
the same after the commencement of such Operating Year, then (i) until the
first day of the month following the month in which such written statement is
furnished. Tenant shall pay to Landlord on the first day of each month an
amount equal to the monthly sum payable by Tenant to Landlord under this
Section 2.4.3 for the last month of the preceding Operating Year, (ii) after
such written statement is furnished, Landlord shall give a notice to Tenant
indicating whether the installments of the Operating Payment previously made
for such Operating Year were greater or less than the installments of the
Operating Payment which would have theretofore been made had such written
statement been furnished prior to the commencement of such Operating Year, and,
within thirty (30) days of such notice, either Tenant shall pay to Landlord the
deficiency indicated thereby or Landlord shall refund to Tenant the overpayment
indicated thereby, and (iii) on the first day of the month following the month
in which such written statement is furnished, and on the first day of each month
thereafter throughout the remainder of such Operating Year, Tenant shall pay to
Landlord an amount equal to one-twelfth (1/12th) of the Estimated Operating
Payment set forth on such written statement. Landlord may, during any Operating
Year (but not more than once during any Operating Year), furnish to Tenant a
written statement revising the Estimated Operating Payment for such Operating
Year, and in each such case, the Estimated Operating Payment for such Operating
Year shall be adjusted, and amounts paid or refunded, as the case may be, in
substantially the same manner set forth in the immediately preceding sentence.
2.4.4. Landlord, after the end of each Operating Year for which an
Operating Payment is due, shall furnish to Tenant a written statement (herein
called an "OPERATING STATEMENT") setting forth the Operating Payment for such
Operating Year. If, for any such Operating Year, the Operating Statement shall
show that the sums paid by Tenant under Section 2.4.3 above, exceeded the
Operating Payment for such Operating Year (such excess, for any Operating Year,
being herein called the "OPERATING OVERPAYMENT"), then Landlord, within twenty
(20) days after delivery of such Operating Statement, shall refund to Tenant the
amount of such Operating Overpayment. If the Operating Statement for such
Operating Year shall show that the sums paid by Tenant under Section 2.4.3 above
were less than the Operating Payment for such Operating Year (such deficiency,
for any Operating Year, being herein called the "OPERATING DEFICIENCY"), Tenant
shall pay the amount of such Operating Deficiency within twenty (20) days after
Tenant's receipt of the Operating Statement.
2.4.5. Landlord's failure to render, or delay in rendering, an Operating
Statement with respect to any Operating Year shall not prejudice Landlord's
right to thereafter render an Operating Statement for such Operating Year or any
other Operating Year, nor shall the rendering of an Operating Statement (or a
revised or corrected Operating Statement) for any Operating Year prejudice
Landlord's right to thereafter render one or more revised or corrected Operating
Statements for such Operating Year.
2.4.6. Each Operating Statement shall be conclusive and binding upon Tenant
as of the date that is sixty (60) days after the delivery thereof, except to the
extent that, prior thereto, Tenant shall have, in good-faith, disputed items or
matters set forth on such Operating Statement by written notice
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to Landlord, which notice shall set forth, in reasonable detail, the disputed
items or matters and clearly state the reasons that Tenant disputes the same.
ARTICLE 3 - TENANT'S USE AND OCCUPANCY
3.1 Use of Premises.
3.1.1. Tenant, subject to and in accordance with the provisions of this
Lease, shall use the Premises for general office use and for no other purpose.
3.1.2. If any governmental license or permit shall be required for the
proper and lawful conduct of Tenant's business in the Premises or any part
thereof, Tenant, at its expense, shall duly procure and thereafter maintain such
license or permit and submit the same to Landlord for inspection. Tenant shall
at all times comply with the terms and conditions of each such license or
permit.
3.2 Building Rules and Regulations.
Tenant shall, and shall cause all Tenant Parties, to faithfully observe
and comply with the rules and regulations annexed hereto as Exhibit C, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter may make and communicate to Tenant,
which, in Landlord's judgment, shall be necessary for the reputation, safety,
care and appearance of the Real Property, or the preservation of good order
therein, or otherwise in connection with the operation, management and/or
maintenance of the Real Property (such rules and regulations as changed from
time to time being herein called "BUILDING RULES AND REGULATIONS"); provided,
however, that in case of any conflict or inconsistency between the provisions of
this Lease and any of the Building Rules and Regulations, the provisions of this
Lease shall control. Nothing in this Lease contained shall be construed to
impose upon Landlord any duty or obligation to enforce the Building Rules and
Regulations against any other tenant or any other person, and Landlord shall not
be liable to Tenant for violation of the Building Rules and Regulations by any
other tenant or any other person.
3.3. Use of Public Areas.
Tenant, incident to its use of the Premises, shall have (i) a
non-exclusive right to use the Core Lavatories (as defined in Article 13 hereof)
located on the floor of the Building on which the Premises are located for
lavatory purposes only, and (ii) a non-exclusive right of ingress and egress to
and from the Premises through the Public Areas (as defined in Article 13
hereof); subject, in all events, to the Building Rules and Regulations.
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3.4. PARKING.
3.4.1. For purposes of this Lease, the following definitions shall apply:
(i) the "PARKING AREAS" shall mean those areas of the Land designated by
Landlord, from time to time, for parking to serve the Building; (ii) the
"RESERVED PARKING AREAS" shall mean those portions of the Parking Areas
designated by Landlord, from time to time, for reserved parking (i.e., for the
exclusive use of one or more persons); and (iii) the "GENERAL PARKING AREAS"
shall mean, from time to time, those portions of the Parking Areas which are not
then Reserved Parking Areas.
3.4.2. Tenant, incident to its use of the Premises, shall have the
exclusive right to use five (5) reserved parking spaces within the Reserved
Parking Areas (the "TENANT'S RESERVED SPACES"), which Tenant's Reserved Parking
Spaces shall be designated by Landlord from time to time. Tenant will be
responsible (i) for the internal allocation of Tenant's Reserved Spaces (among
the Tenant Parties) and (ii) at Tenant's expense, for the enforcement of
Tenant's exclusive right to use Tenant's Reserved Spaces (it being agreed that
Tenant shall indemnify and hold harmless the Landlord from any claim or action
brought against Landlord by any persons or entities as a result of Tenant
enforcing its exclusive right to use Tenant's Reserved Spaces). Landlord shall,
at Tenant's expense, place a marking on each of Tenant's Reserved Spaces
indicating that the same is reserved parking space.
3.4.3. Tenant, incident to its use of the Premises, shall have the right
to use, and permit the Tenant Parties to use, the parking spaces located in the
General Parking Areas, on a "first come, first served" basis in common with
other persons designated by Landlord, subject, in all events, to the Building
Rules and Regulations; provided, however, that at no time shall Tenant use, or
permit the Tenant Parties to use, in the aggregate, more than forty-eight (48)
parking spaces in the General Parking Areas.
3.5. TENANT'S SIGNAGE.
Tenant, incident to its use of the Premises, shall have the right to
install and maintain a sign (consisting solely of lettering identifying Tenant's
business name) on the entrance door for the Premises (such sign being herein
called "TENANT'S ENTRANCE SIGN"), provided, that (i) the location, dimensions,
design, materials and content of such sign shall be subject to Landlord's
approval, (ii) the installation of such sign shall be deemed "Alterations" and,
accordingly, shall be performed subject to and in accordance with the provisions
of Section 5.1 hereof, (iii) Landlord, at its expense, shall have the right to
temporarily remove any sign when necessary or desirable in connection with the
operation, management or maintenance of the Real Property (e.g., to paint or
incident to the performance of any alterations or repairs), and (iv) the
installation and maintenance of such sign shall otherwise be subject to the
Building Rules and Regulations. Except as provided in this Section 3.5. Tenant
shall not have the right to install or maintain any signs in or at the Real
Property which are either located outside of the Premises or otherwise visible
from the outside of the Premises.
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ARTICLE 4 - UTILITIES AND SERVICES
4.1. Definitions.
As used herein, the terms "BUSINESS HOURS" shall mean the hours between
8:00 a.m. and 6:00 p.m. on Business Days, and the hours between 8:00 a.m. and
1:00 p.m. on Saturdays (other than Saturdays which are Holidays), and "BUSINESS
DAYS" shall mean all days except Saturdays, Sundays and Holidays. The term
"HOLIDAYS" shall mean New Year's Day, President Day, Memorial Day, Independence
Day, Labor Day, Thanksgiving, the day following Thanksgiving, Christmas and any
other days which shall be either (i) observed by both the federal and the state
governments as legal holidays or (ii) designated as a holiday by the applicable
Building Service Union Employee Service contract or by the applicable operating
Engineers contract. The term "BUILDING SERVICES" shall mean the services
required to be provided to Tenant by Landlord pursuant to this Article 4.
4.2. Electricity.
Landlord, subject to and in accordance with the provisions of this Section
4.2., shall furnish electricity to Tenant for use in the Premises:
(a) Landlord, as part of the Initial Tenant Work, shall furnish, install
and maintain one or more electrical submeters to measure Tenant's demand and
consumption with respect to the electricity furnished by Landlord (such
submeter(s) being herein called "TENANT'S SUBMETER"). Tenant, throughout the
Term, shall pay Landlord for such electricity as measured by Tenant's Submeter
at the rates set forth in, and otherwise pursuant to the provisions of, Section
4.2(b) below.
(b) Tenant, for any billing period, shall pay Landlord an amount
determined by applying (i) Tenant's electrical demand (measured in KWs) and
consumption (measured in KWHRs) for such period, as measured by Tenant's
Submeter, to (ii) the rate schedule (inclusive of all taxes, surcharges and
other charges payable thereunder or in connection therewith) of the utility
company serving the Building (herein called the "UTILITY COMPANY") applicable to
the purchase of electricity for the Building from the Utility Company for such
period. Tenant shall pay the amount due for any billing period within thirty
(30) days after being billed therefor, which bills Landlord may render from time
to time (but no more frequently than monthly). Tenant shall also pay to Landlord
an amount equal to the actual costs incurred by Landlord to a meter company or
otherwise in respect of having Tenant's Submeter read and having bills prepared
and delivered based upon such readings.
(c) Landlord shall not be required to furnish, and Tenant shall not
install a connected load (including all of Tenant's equipment and systems, but
excluding the Building Systems) or otherwise draw, in excess of six (6) watts
per usable square foot of Premises.
(d) If any tax is imposed upon Landlord's receipts from the sale or resale
of electric energy to Tenant (directly or indirectly through a general tax on
such receipts) by any federal, state or
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municipal authority, then Tenant shall pay, or reimburse Landlord, such taxes
(or its share thereof) in addition to the submetered charges.
(e) Tenant will at all times comply with all rules and regulations of the
Utility Company, to the extent the same are applicable to its use of electric
energy in the Premises.
(f) Tenant's use of electric energy shall never exceed the capacity of the
then existing feeders, risers or wiring installations serving the Premises.
(g) Landlord shall not in any way be liable or responsible to Tenant for
any loss, damage or expense which Tenant may sustain or incur if (i) the supply
of electric energy to the Premises is temporarily interrupted, or (ii) the
quantity or character of electric service is changed or is no longer available
or suitable for Tenant's requirements, except to the extent resulting from
Landlord's willful misconduct or gross negligence.
(h) Landlord shall furnish and install all replacement lighting, tubes,
lamps, bulbs and ballasts required in the Premises; and in such event, Tenant
shall pay to Landlord or its designated contractor upon demand the then
established reasonable charges therefor of Landlord or its designated
contractor, as the case may be.
(i) If permitted by applicable law, Landlord shall have the right at any
time and from time to time during the Term to either contract for electric
service and/or supply from a different Utility Company or Utility Companies
(each, an "ALTERNATE SERVICE PROVIDER") or continue to contract from the
existing Utility Company. Tenant shall cooperate with Landlord, any
then-existing Utility Company, and any Alternate Service Provider at all times
and, as reasonably necessary, shall allow Landlord, the Utility Company, and any
Alternate Service Provider reasonable access to the Building's electric lines,
feeders, risers, wiring and other electrical equipment, if any, located within
the Premises.
4.3. Water.
Landlord shall furnish reasonable quantities of hot and cold water to the
Core Lavatories located on the floor(s) on which the Premises are located for
core lavatory and cleaning purposes only. If Tenant shall require water for any
other purposes, then (i) Landlord need only furnish additional cold water for
such other purposes, which additional cold water shall be furnished to a point
in the Building's core on the floor(s) on which the Premises are located, and
(ii) Landlord may install and maintain, at Tenant's expense, one or more meters
to measure Tenant's consumption of such additional water (in which event,
Tenant, periodically upon demand, shall pay Landlord for such additional water
based upon the readings of such meter or meters). Tenant, at its expense, shall
be solely responsible for distributing within the Premises, and, to the extent
Tenant requires hot water, heating, any additional cold water furnished pursuant
to this Section 4.3.
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4.4. HVAC Service.
4.4.1. Landlord, during Business Hours, shall furnish heat, ventilation and
air conditioning ("HVAC") to the Premises as may be reasonably required (except
as otherwise provided in this Lease and except for any special requirements of
Tenant arising from its particular use of the Premises) for reasonably
comfortable occupancy of the Premises.
4.4.2. If Tenant shall require HVAC services at any time other than during
Business Hours (herein called "OVERTIME HVAC SERVICE"), Landlord shall furnish
such HVAC Overtime Service, subject to receiving advance notice from Tenant as
follows: (a) as to any Business Day upon which Tenant requires such overtime
service prior to 8:00 a.m., upon being notified by Tenant no later than 2:00
p.m. on the Business Day immediately preceding such date; (b) as to any Business
Day upon which Tenant requires such overtime service after 6:00 p.m., upon being
notified by Tenant no later than 2:00 p.m. on such date; and (c) as to any day
which is not a Business Day upon which Tenant requires such overtime service,
upon being notified by Tenant no later than 4:00 p.m. on the Business Day
immediately preceding such date. Tenant, in respect of such Overtime HVAC
Service, shall pay to Landlord, within thirty (30) days after demand therefor,
an amount equal to the Hourly Rate (as hereinafter defined) per hour of Overtime
HVAC Service; it being agreed that (x) should Tenant request Overtime HVAC
Service after Business Hours on a Business Day, Landlord shall have the right to
commence furnishing such service immediately following the expiration of
Business Hours, and (y) should Tenant request Overtime HVAC Service prior to
Business Hours on a Business Day, Landlord shall have the right to continue
furnishing such service until the commencement of Business Hours, and, in either
case, Tenant shall be required to pay Landlord as herein provided whether or not
Tenant utilizes such service during all hours that Landlord is furnishing same.
Tenant shall comply fully with such reasonable rules and regulations as Landlord
may enact in connection with its furnishing of Overtime HVAC Service. As of the
date hereof, the "HOURLY RATE" for each hour or fraction thereof shall be
thirty-five dollars ($35.00) per hour for Tenant premises of 40,000 square feet
or less for which Overtime HVAC Service is requested by Tenant and an additional
thirty-five dollars ($35.00) per hour for each additional 40,000 square feet or
fraction thereof for which Overtime HVAC Service is requested by Tenant;
provided, however, that, from and after the date hereof, Landlord shall have the
right to increase the Hourly Rate, but only in approximate proportion to
increases in Landlord's costs of providing such Overtime HVAC Service.
Notwithstanding the foregoing, the Hourly Rate shall not be imposed with respect
to Tenant use, during hours other than Business Hours on Business Days, of any
supplemental HVAC units or equipment installed as part of the Initial Tenant
Work or subsequently installed as Alterations by Tenant.
4.4.3. Notwithstanding the foregoing, it is understood and agreed that
Tenant shall pay for the electricity needed to operate the HVAC system
(including but not limited to any supplemental HVAC) serving the Premises and,
incident thereto, the "heat pumps" for such system, which are located in the
ceiling plenum of the Premises or adjacent to the Premises, shall be connected
to Tenant's Submeter.
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4.5. Access.
Landlord shall provide Tenant with 24 hour a day, 7 day week, passenger
elevator access to the Premises, with at least one (1) elevator being subject
to call at all times for such purpose. Such access shall be subject, however,
in all events, to the Building Rules and Regulations.
4.6. Cleaning.
Landlord shall cause the Premises, including the exterior and the interior
of the Building's exterior windows serving the Premises, to be cleaned in
accordance with the provisions of Exhibit D attached to the Lease and made a
part hereof. Tenant, however, shall pay to Landlord, on demand, the costs
incurred by Landlord for (x) extra cleaning work in the Premises required
because of (i) carelessness, indifference, misuse or neglect on the part of
Tenant or its subtenants or its or their employees or visitors, (ii) interior
glass partitions or unusual quantities of interior glass surfaces, (iii)
non-building standard materials or finishes installed by Tenant or at its
request, and (iv) the existence of any bathroom or shower facilities in the
Premises, (y) removal from the Premises and the Building of any refuse and
rubbish of Tenant in excess of that ordinarily accumulated in the business
office occupancy or at times other than Landlord's standard cleaning times, and
(z) the use of the Premises by Tenant other than during Business Hours.
Notwithstanding the foregoing, Landlord shall not be required to clean any
portions of the Premises used for preparation, serving or consumption of food or
beverages, training rooms, data processing or reproducing operations, private
lavatories or toilets or other special purposes requiring greater or more
difficult cleaning work than office areas and Tenant agrees, at Tenant's
expense, to retain Landlord's cleaning contractor to perform such cleaning.
Landlord and its cleaning contractor shall have access to the Premises, and the
right to use, without charge therefor, all light, power and water in the
Premises, as is reasonably required to clean the Premises as required under this
Section 4.6.
4.7. Building Directory
Landlord shall maintain a main directory for the Building's tenants and
other occupants (which directory, from time to time, may be either manual or
computerized), and provide Tenant (together with its permitted subtenants) with
up to two (2) listings on such main directory. Landlord, from time to time,
shall, at Tenant's expense, make such changes in the listings as Tenant shall
request. In addition, Tenant shall be entitled, at Tenant's expense, to have
Tenant's name affixed on the existing Building monument sign, using
Building-standard lettering on such sign.
4.8. Interruptions.
Notwithstanding anything to the contrary contained in this Lease, Landlord
reserves the right, without liability to Tenant and without it being deemed a
default hereunder or a constructive eviction, to stop or interrupt any Building
System(s) or Building Service(s) at such times as may be necessary and for as
long as may reasonably be required by reason of the making of alterations and/or
repairs
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in or to the Real Property or any portion thereof, or one or more Events of
Force Majeure. Landlord shall have no liability to Tenant as a result of any
such stoppage or interruption.
ARTICLE 5 -- TENANT'S ALTERATIONS, IMPROVEMENTS AND PROPERTY
5.1. Tenant's Alterations.
5.1.1. Tenant shall not make any Alterations (as defined below) of any
nature without Landlord's prior written approval. So long as Tenant complies
with the provisions of this Section 5.1 and there shall not otherwise exist an
Event of Default under this Lease. Landlord's approval of proposed Alterations
shall not be unreasonably withheld, unless the proposed Alterations are
Material Alterations. As used herein, the following terms shall have the
following meanings: (I) "ALTERATIONS" shall mean any alterations made, or
proposed to be made, by Tenant in or to the Premises; and (II) "MATERIAL
ALTERATIONS" shall mean any Alterations which (a) affect the exterior
(including the appearance) of the Building or any other portion of the Building
outside of the Premises, (b) are structural or affect the structural elements
of the Building, or (c) affect the usage or the proper functioning of the
Building Systems or any part thereof.
5.1.2. Tenant shall request Landlord's written approval of any Alterations
only by written notice to Landlord, which notice shall be accompanied by two
(2) sets of detailed plans and specifications setting forth all such
Alterations (such plans and specifications, with respect to any Alterations,
being herein called the "TENANT PLANS"). All Tenant Plans shall be prepared at
Tenant's expense by an architect licensed to practice in the State of New
Jersey.
5.1.3. (a) Tenant, in connection with any Alterations, shall (i) reimburse
Landlord all costs incurred by Landlord (including the fees of any outside
architect, engineer or other professional employed by Landlord) in connection
with (x) any review of any Tenant Plans or any other items submitted by Tenant
in connection therewith, or (y) any on-site inspection of Alterations, and (ii)
pay to Landlord a general supervision fee equal to seven and one-half (7-1/2%)
of the aggregate cost of such Alterations.
(b) Tenant acknowledges that any review or approval by Landlord of
any Tenant Plans with respect to any Alterations, and/or any on-site
inspections of any Alterations, and/or any supervision by Landlord of
Alterations, are solely for Landlord's benefit, and without any representation
or warranty whatsoever to Tenant with respect to the adequacy, correctness or
efficiency of any such Tenant Plans or Alterations, or the compliance thereof
with Legal Requirements, Insurance Requirements or the provisions of this
Lease, and Landlord shall have no liability or responsibility therefor.
5.1.4. Alterations shall be performed only by contractors that have been
first approved by Landlord in writing, which approval shall not be unreasonably
withheld.
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5.1.5. Tenant shall cause all Alterations to be diligently performed to
completion in accordance with the Tenant Plans approved by Landlord, in
compliance with Legal Requirements and Insurance Requirements, and otherwise in
a good and workmanlike manner (using materials at least equal in quality and
class to the then standards for the Building). Tenant, at its expense, shall
obtain (and furnish true and complete copies to Landlord of) all governmental
permits and certificates required for the commencement and prosecution of
Alterations and for final approval thereof upon completion. Alterations shall be
performed in such manner as not to interfere with, or impose any additional
expense (except to the extent Tenant reimburses Landlord therefor) upon,
Landlord in the operation, management, maintenance and/or repair of the Real
Property; without limiting the generality thereof, to the extent any Alterations
are performed on an overtime basis. Tenant shall reimburse Landlord all
additional costs incurred by Landlord by reason thereof. Throughout the
performance of any Alterations, Tenant, at its expense, shall carry, or cause to
be carried, (i) workers' compensation insurance in statutory limits, and (ii)
such general liability insurance and other insurance as Landlord shall require.
Tenant, promptly upon the completion of any Alterations, shall deliver to
Landlord "as built" drawings therefor.
5.1.6. Tenant, in connection with any Alterations or any other work, shall
comply with and observe, and shall cause each of its contractors to comply with
and observe, the rules and regulations annexed hereto as Exhibit E, and such
reasonable changes therein (whether by modification, elimination or addition) as
Landlord at any time or times hereafter may make and communicate to Tenant
(such rules and regulations, as changed from time to time, being herein called
the "ALTERATION RULES AND REGULATIONS"); provided, however, that in case of any
conflict or inconsistency between the provisions of this Lease and any of the
Alteration Rules and Regulations, the provisions of this Lease shall control.
5.1.7. Before proceeding with any Alterations, Tenant shall furnish to
Landlord, as security for the full completion of such Alterations, a payment
and performance bond issued by a bonding company reasonably satisfactory to
Landlord naming Landlord as beneficiary, which bond (i) shall be in an amount
equal to one hundred twenty-five (125%) percent of Landlord's reasonable
estimate of the cost of such Alterations, (ii) shall not require any payment as
a condition to the bonding company performing its obligations under the bond,
and (iii) shall otherwise be in a form reasonably satisfactory to Landlord.
5.2. Tenant's Improvements and Tenant's Property.
5.2.1. For purposes of this Lease, the following definitions shall apply:
"TENANT'S IMPROVEMENTS" shall mean all improvements, betterments,
fixtures (inclusive of trade fixtures), equipment and appurtenances attached to
or built into the Premises by or on behalf of Tenant (whether or not at
Tenant's expense) during the Term, including the Initial Tenant Work and all
Alterations (and including Tenant's line, riser and other connections to the
Building Systems and any separate HVAC, electrical or other mechanical system
or facility installed by or on behalf of Tenant), but excluding Tenant's
Property.
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"TENANT'S PROPERTY" shall mean all office furniture and equipment,
movable partitions, communications equipment and other articles of movable
personal property owned or leased by Tenant located in the Premises, including
floor and/or wall coverings and computer and telephone cables. For purposes of
this Lease, Tenant's Entrance Sign shall be deemed Tenant's Property.
5.5.2. All Tenant's Improvements, upon the installation thereof, shall be
and remain Landlord's property and shall not be removed by Tenant at anytime
during the Term (except in connection with permitted Alterations) or upon the
expiration or earlier termination of this Lease. Notwithstanding the foregoing,
upon notice to Tenant given (i) at the time Landlord grants its approval
therefor for Alterations for which Landlord's approval has been granted, or
(ii) no later than thirty (30) days prior to the Expiration Date for
Alterations for which Landlord's approval has not been granted, Landlord may
require Tenant, at Tenant's expense, to remove all or any portion of any
Tenant's Improvements (other than the Initial Tenant Work) prior to the
expiration of this Lease (or within thirty (30) days following the earlier
termination hereof). In any such event, Tenant shall repair any damage to the
Real Property (including the Premises) resulting from any such removal and
restore any affected areas thereof.
5.2.3. All Tenant's Property shall be and shall remain the property of
Tenant throughout the Term and may be removed by Tenant at any time during the
Term. Upon the expiration of this Lease (or within fifteen (15) days after the
earlier termination hereof). Tenant, at its expense, shall remove all Tenant's
Property from the Premises. Tenant shall repair any damage to the Real Property
(including the Premises) resulting from any removal of Tenant's Property and
shall restore any affected areas of the Real Property. Any items of Tenant's
Property which shall remain in the Premises after the expiration of this Lease
(or, as the case may be, within fifteen (15) days following an earlier
termination of this Lease), may, at the option of Landlord, be deemed to have
been abandoned, and in such case such items may be retained by Landlord as its
property or disposed of by Landlord, without accountability, in such manner as
Landlord shall determine.
5.3. Title, Mechanics Liens, Union Conflicts, Etc.
5.3.1. All Alterations shall be fully paid for by Tenant in cash. No
Tenant's Improvements or Tenant's Property shall be subject to any conditional
bills of sale, chattel mortgage or other title retention agreements.
5.3.2. Tenant, at its expense, and with diligence and dispatch, shall
procure the cancellation or discharge of all notices of violation arising from,
or otherwise connected with, Alterations, or any other work, labor, services or
materials done for or supplied to Tenant, or any Tenant Party, which shall be
issued by any Governmental Authority. Tenant shall defend, indemnify and hold
harmless Landlord from and against any and all mechanic's and other liens and
encumbrances filed in connection with Alterations, or any other work, labor,
services or materials done for or supplied to Tenant or any Tenant Party and
from and against all costs,expenses and liabilities incurred in connection with
any such lien or encumbrance or any action or proceeding brought thereon.
Tenant,
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at its expense, shall procure the satisfaction or discharge of record by
bonding, payment or otherwise, of all such liens and encumbrances within thirty
(30) days after knowledge or notice thereof.
5.3.3. Tenant shall not perform any Alterations, or otherwise perform any
work or conduct any activities in or about the Real Property, in a manner which
violates any of Landlord's union contracts affecting the Real Property, or
create any work stoppage, picketing, labor disruption or dispute or any
interference with the operation, management and/or maintenance of the Real
Property. Tenant shall immediately stop, or cause to be stopped, any work or
other activity in violation of this Section 5.3.3 upon notice thereof from
Landlord.
ARTICLE 6 -- RESERVATION OF REAL PROPERTY; LANDLORD'S ACCESS
6.1. Reservation of Real Property.
6.1.1. Except for the Premises (which, for purposes of this Lease, shall
consist only of the space within the inside surfaces of all demising and
exterior walls, hung ceilings, floors, windows and doors bounding the
Premises), all of the Real Property, including the Land and the Base Building,
is reserved to Landlord and persons authorized by Landlord, subject only to any
rights of Tenant to use areas of the Real Property outside of the Premises that
may be expressly provided for hereunder.
6.1.2. Landlord, without limiting the generality of the foregoing, hereby
reserves the following rights (which may be exercised, in each and every case,
without any liability to Tenant): (a) the right to change the name and/or
address of the Building, together with the exclusive right to use the name of
the Building, at any time and from time to time (provided that if Landlord
changes the name or address of the Building, Landlord shall reimburse Tenant for
the reasonable cost incurred by Tenant in obtaining reasonable quantities of
letterhead, business cards and similar paper goods replacing like items bearing
the former name and/or address of the Building); (b) the right to make, or
permit to be made, such alterations and/or repairs in or to the Real Property or
any part thereof (other than to the interior of the Premises), as Landlord shall
deem necessary or desirable; and (c) the right to close or render inoperable any
part of the Real Property (outside of the Premises).
6.2. Landlord's Access to Premises.
Landlord, and persons authorized by Landlord, shall have the right, upon
reasonable notice (or, in the case of an emergency, without notice) to enter
upon and/or pass through the Premises, at reasonable times (or, in the case of
an emergency, at any time or times), for one or more of the following purposes:
(a) to examine and/or inspect the Premises or any portions of the Real Property
accessible through the Premises, (b) to show them to actual and prospective
purchasers, Underlying Lessors or Mortgagees, or, during the last twelve (12)
months of the Term, prospective tenants of the Building or any part thereof,
(c) to make such alterations and/or repairs in or to the Real Property (other
than to the interior of the Premises) or any part thereof as Landlord, or
persons authorized by Landlord, are required or desire to make, (d) to make
such alterations and/or repairs in or to the
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Premises or any part thereof as Landlord is required or permitted to make,
and/or (e) to read any utility meters located therein. Landlord, and such
authorized persons, may, without liability to Tenant, take all materials into
and upon the Premises that may be required in connection therewith.
ARTICLE 7 - QUIET ENJOYMENT; UNDERLYING INTERESTS
7.1. Quiet Enjoyment.
So long as Tenant pays all of the Rent and observes and performs all of
Tenant's other obligations hereunder, Landlord covenants that Tenant shall
peaceably and quietly have, told and enjoy the Premises without hindrance,
ejection or molestation by Landlord or any person lawfully claiming through or
under Landlord, subject, nevertheless, to the provisions of this Lease and to
all Mortgages and Underlying Leases.
7.2. Underlying Interests.
7.2.1. For purposes of this Lease, the following definitions shall
apply:
"MORTGAGE" shall mean any mortgage or deed of trust which may now or
hereafter affect the Land and/or Building, or any part of either (whether or
not such mortgage or deed of trust shall also cover other properties), and
shall include each and every advance made or hereafter to be made under such
mortgage or deed of trust, and to each and every renewal, modification,
replacement or extension of such mortgage or deed of trust and any spreader or
consolidation of such mortgage or deed of trust, and "MORTGAGEE" shall mean any
holder of any Mortgage.
"UNDERLYING LEASE" shall mean any ground lease, overriding lease or
underlying lease of the Land and/or the Building, or of the portion of the
Building of which the Premises are a part, now or hereafter existing, and
"UNDERLYING LESSOR" shall mean any lessor under an Underlying Lease.
7.2.2. This Lease, and all rights of Tenant hereunder, are and shall be
subject and subordinate to all Underlying Leases and Mortgages. This Section
7.2.2. shall be self-operative and no further instrument of subordination shall
be required. In confirmation of such subordination, Tenant shall promptly
execute, acknowledge and deliver any instrument that Landlord, an Underlying
Lessor or a Mortgagee may reasonably request to evidence such subordination.
Upon Tenant's request, Landlord shall request from any future Mortgagee or
Underlying Lessor a nondisturbance agreement with respect to this Lease for the
benefit of Tenant.
7.2.3. If any act or omission of Landlord would give Tenant the right,
immediately or after lapse of a period to time, to cancel or terminate this
Lease, or to abate or offset against the payment of Rent or to claim a partial
or total eviction, Tenant shall not exercise such right (a) until it has given
written notice of such act or omission to Landlord and each Mortgagee and each
Underlying Lessor
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whose name and address shall previously have been furnished to Tenant, and (b)
until a reasonable period for remedying such act or omission shall have elapsed
following the giving of such notice and following the time when such Mortgagee
or Underlying Lessor shall have become entitled under such Mortgage or
Underlying Lease, as the case may be, to remedy the same (which reasonable
period shall in no event be less than the period to which Landlord would be
entitled under this Lease or otherwise, after similar notice, to effect such
remedy plus thirty (30) days), provided such Mortgagee or Underlying Lessor
shall give Tenant notice of its intention to, and with due diligence commence
and continue to, remedy such act or omission.
7.2.4. If any Mortgagee or Underlying Lessor, or any designee of any
Mortgagee or Underlying Lessor or any other person, shall succeed to the rights
of Landlord under this Lease, whether through possession or foreclosure action
or delivery of a new lease or deed, then at the request of such party so
succeeding to Landlord's rights (herein called "SUCCESSOR LANDLORD"), and upon
such Successor Landlord's written agreement to accept Tenant's attornment,
Tenant shall attorn to and recognize such Successor Landlord as Tenant's
landlord under this Lease and shall promptly execute and deliver any instrument
that such Successor Landlord may reasonably request to evidence such
attornment. Upon such attornment, this Lease shall continue in full force and
effect as a direct lease between the Successor Landlord and Tenant upon all of
the terms, conditions and covenants as are set forth in this Lease, except that
the Successor Landlord shall not be (i) liable for any previous act or
omission of Landlord, (ii) responsible for any monies owing by Landlord to the
credit of Tenant, (iii) bound by any covenant to undertake or complete any work
in the Premises or to provide an allowance therefor, (iv) subject to any
credits, offsets, claims, counterclaims, demands or defenses which Tenant may
have against Landlord, (v) bound by any payments of rent which Tenant might
have made for more than one (1) month in advance to Landlord, (vi) required to
account for any security deposit other than any security deposit actually
delivered to the Successor Landlord, or (vii) bound by any modification of this
Lease made without Successor Landlord's written consent.
7.2.5. If any Mortgagee or Underlying Lessor shall require any
modification(s) of this Lease, Tenant shall, at Landlord's request, promptly
execute and deliver to Landlord such instruments effecting such modification(s)
as Landlord shall require, provided that such modification(s) do not adversely
affect, in any material respect, any of Tenant's rights under this Lease.
ARTICLE 8 -- BASIC LEASE OBLIGATIONS
8.1. Insurance.
8.1.1. Tenant, at its expense, shall maintain, at all times during the
Term, (i) "all risk" property insurance covering all Tenant's Improvements and
Tenant's Property to a limit of not less than the full replacement cost
thereof, (ii) comprehensive general liability insurance, including blanket
contractual liability coverage, with limits of not less than Three Million
Dollars ($3,000,000) combined single limit for personal injury and property
damage liability in any one occurrence, and (iii) such other insurance, with
such limits, as Landlord shall from time to time reasonably require Tenant
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to maintain. Landlord may, from time to time, require that the limits of the
aforesaid insurance be increased. The deductibles of any insurance required to
be maintained by Tenant shall be in amounts reasonably satisfactory to Landlord.
Landlord (or, at Landlord's option, any Mortgagee or Underlying Lessor) shall
be named as a "loss payee" under the insurance policies providing "all risk"
property coverage on Tenant's Improvements; and Tenant shall cooperate with
Landlord in connection with the collection of any insurance proceeds
thereunder. Landlord and its managing agent, if any, and each Mortgagee and
Underlying Lessor whose name and address shall previously have been furnished
to Tenant shall be named as additional insureds under Tenant's insurance
policies providing general liability coverage. Each of the insurance policies
required to be maintained pursuant to this Section 8.1.1. shall be issued by
companies licensed to do business in the State of New Jersey and reasonably
acceptable to Landlord and shall contain a provision whereby the same cannot be
cancelled or modified unless Landlord and any additional insureds are given at
least thirty (30) days' prior written notice thereof. Tenant, at least ten (10)
days prior to the Commencement Date, and thereafter (for renewals of existing
policies) at least ten (10) days prior to the date of expiration of any
existing policy, shall deliver to Landlord a duplicate original insurance
policy, an insurance binder (countersigned by the insurer), or Evidence of
Insurance (in form ACORD 27) for each insurance policy required to be carried
by Tenant hereunder.
8.1.2. Tenant shall not violate, or permit any Tenant Party to violate,
any Insurance Requirements or any terms or conditions imposed by any insurance
policy then issued in respect of the Real Property. If, as a result of any act
or omission by Tenant (including a default under the immediately preceding
sentence), the premiums on any insurance policy issued in respect of the Real
Property shall be higher than the same would otherwise be, then, without
limiting any other rights or remedies that Landlord may have on account
thereof, Tenant, upon demand, shall pay Landlord an amount equal to the part of
such insurance premiums attributable to such act or omission; for which
purposes, a schedule "make-up" rates issued by, or any other finding of, any
insurance rating organization having jurisdiction over, or otherwise making
rates or findings in respect of, the Real Property shall be conclusive evidence
of the rates and facts therein stated.
8.1.3. Each party agrees to have included in each of its "all risk"
insurance policies (insuring the Base Building in case of Landlord, and
insuring Tenant's Improvements and Tenant's Property in the case of Tenant) a
waiver of the insurer's right of subrogation against the other party during the
Term, unless such a waiver of subrogation shall be generally unobtainable (in
which event, the insured party shall so notify the other party promptly after
learning thereof). Each party hereby releases the other party, with respect to
claim (including a claim for negligence) which it might otherwise have against
the other party, for loss, damage or destruction with respect to its property
occurring during the Term, if, and to the extent, such loss, damage or
destruction is, or under this Section 8.1 is required to be, insured under a
policy or policies containing a waiver of subrogation.
8.2. Indemnification.
8.2.1. Tenant shall indemnify and hold harmless Landlord and any Landlord
Party (as hereinafter defined) from and against any and all claims arising from
or in connection with: (a) the
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conduct or management of the Premises or of any business therein, or any work or
thing whatsoever done, or any condition created (other than by Landlord) in or
about the Premises during the Term; (b) any act, omission or negligence of
Tenant or any Tenant Party (hereinafter defined); (c) any accident, injury or
damage whatever (except to the extent caused by Landlord's negligence) occurring
in, at or upon the Premises; and (d) any breach or default by Tenant under this
Lease; together with all costs, expenses and liabilities incurred in or in
connection with each such claim, or any action or proceeding brought thereon,
including all attorneys' fees and expenses.
8.2.2. Landlord shall indemnify and hold harmless Tenant and any Tenant
Party from and against any and all claims arising from or in connection with:
(a) the conduct or management by Landlord of the Land or the Public Areas, or
any work or thing whatsoever done, or any condition created by Landlord in or
about the Land or the Public Areas during the Term; and (b) any beach or default
by Landlord under this Lease; together with all costs, expenses and liabilities
incurred in or in connection with each such claim, or any action or proceeding
brought thereon, including all attorneys' fees and expenses.
8.3. Compliance with Laws.
Tenant, at its expense, shall (i) comply with all Legal Requirements
requiring compliance in respect of the Premises or the use and occupancy
thereof, and (ii) be responsible for the cost of any other compliance with Legal
Requirements in respect of the Real Property which arises from Tenant's use and
occupancy of the Premises; provided, however, that Tenant shall not be required
to perform, or be responsible for the cost of, any alterations to the Base
Building which are required to be performed to comply with any Legal
Requirements, unless the need for such compliance arises by reason of (w) the
manner of conduct of Tenant's business in the Premises, (x) the performance of
any Alterations or the operation, use or presence of any Tenant's Improvements
or Tenant's Property, (y) any cause or condition created by or at the instance
of Tenant, or (z) the breach of any of Tenant's obligations hereunder.
8.4. Repairs and Maintenance.
8.4.1. Tenant, throughout the Term, shall, at its expense, keep and
maintain, and take good care of, the Premises and make all needed interior and
non-structural repairs in and to, the Premises, including all needed repairs to
Tenant's Improvements and Tenant's Property. Tenant shall also be responsible
for the cost of repairs made by Landlord to the Base Building to the extent that
the need for the same arises out of (i) Tenant's performance of Alterations,
(ii) the operation, use or presence of any Tenant's Improvements, or the
installation, operation, use or presence of Tenant's Property, (iii) the moving
of any Tenant's Improvements or Tenant's Property, or (iv) any breach of
Tenant's obligations under this Lease, or any negligent or wrongful act or
omission by Tenant or any Tenant Party.
8.4.2. Landlord, throughout the Term, shall keep and maintain, and make all
needed repairs in and to, the Base Building, but only to the extent that the
same affect Tenant's use and occupancy
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of the Premises. Such repairs shall be made at Landlord's expense, except as
provided in Section 8.4.1. above.
8.5. Damage and Destruction.
8.5.1. If the Building or the Premises shall be partially or totally
damaged or destroyed by fire or other casualty, then, unless this Lease shall be
terminated as hereinafter provided in this Article, (i) Landlord shall repair
and restore (A) the Base Building, but only to the extent that the same affects
Tenant's use and occupancy of the Premises, and (B) Tenant's Improvements (all
such repair and restoration work being herein called the "LANDLORD RESTORATION
WORK"), with reasonable dispatch after notice to it of the damage or destruction
and the collection of the insurance proceeds attributable to such damage or
destruction, and (ii) Tenant shall repair and restore Tenant's Property with
reasonable dispatch after such damage or destruction and the collection of the
insurance proceeds attributable to such damage or destruction. The proceeds of
Tenant's insurance policies providing coverage for Tenant's Improvements shall
be paid to Landlord (if Landlord is performing Landlord Restoration Work, such
payment to be made in one or more draws as the Landlord Restoration Work
proceeds, as reasonably required by Landlord). Concurrently with the collection
of any such insurance proceeds, Tenant shall pay to Landlord (x) the amount of
any deductible under the policy insuring Tenant's Improvements, and (y) the
amount, if any, by which the cost of repairing and restoring Tenant's
Improvements as estimated by a reputable contractor designated by Landlord
exceeds the available insurance proceeds therefor. Tenant shall also pay to
Landlord, upon demand, the amount(s) by which the actual cost of repairing and
restoring Tenant's Improvements exceeds the aforesaid insurance proceeds plus
the amounts described in clauses (x) and (y) above.
8.5.2. If the Premises and/or the Building shall be damaged or destroyed by
fire or other casualty so as to render the Premises completely or partially
untenantable, then the Fixed Rent, Operating Payments and Tax Payments shall be
abated in the proportion that the untenantable area of the Premises bears to the
total area of the Premises for the period from the date of the damage or
destruction to the date that the Landlord Restoration Work shall be
substantially completed; provided, however, that (i) if in the reasonable
judgment of the contractor engaged by Landlord to perform the Landlord
Restoration Work, such Landlord Restoration Work would have been substantially
completed at an earlier date but for Tenant's having failed to reasonably
cooperate with Landlord in effecting the same, then the Landlord Restoration
Work shall be deemed to have been substantially completed on such earlier date
and, accordingly, any abatement shall cease, and (ii) if Tenant or any of its
subtenants shall reoccupy a portion of the Premises prior to the substantial
completion of the Landlord Restoration Work, then the Fixed Rent, Operating
Payment and Tax Payment allocable to such reoccupied portion (on a pro-rata
rentable square foot basis), shall be payable by Tenant from the date of such
occupancy.
8.5.3. If either (i) the Building shall be damaged or destroyed by fire or
other casualty (whether or not the Premises are damaged or destroyed) such that
its repair and restoration requires more than two hundred ten (210) days (as
estimated by a reputable contractor, registered architect or licensed
professional engineer designated by Landlord), then, in such case, either
Landlord or
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Tenant may terminate this Lease by giving the other notice to such effect within
ninety (90) days after the date of the casualty. If either (i) the Building
shall be damaged or destroyed by fire or other casualty (whether or not the
Premises are damaged or destroyed) such that its repair and restoration requires
or the expenditure of more than twenty (20%) percent of the full insurable value
of the Building immediately prior to the date of the damage or destruction or
(ii) if the Premises shall be totally or substantially (i.e., for this purpose,
more than thirty (30%) percent) damaged or destroyed by fire or other casualty
(as estimated, in either case, by a reputable contractor, registered architect
or licensed professional engineer designated by Landlord), then, in either such
case, Landlord may terminate this Lease by giving Tenant notice to such effect
within ninety (90) days after the date of the casualty. For the purpose of this
Section only, "full insurable value" shall mean replacement cost less the cost
of footings, foundations and other structures below the street and first floors
of the Building.
8.5.4. Except as provided in Section 8.5.3, Tenant shall not be entitled to
terminate this Lease by reason of damage or destruction to the Real Property.
8.5.5. Landlord shall have no liability to Tenant, by reason of any
inconvenience, loss of business or annoyance arising from any repair or
restoration work in respect of the Real Property.
8.6. CONDEMNATION.
8.6.1. If the whole or a material portion of either the Building or the
Premises shall be taken by condemnation or in any other manner for any public or
quasi-public use or purpose (whether permanently or temporarily for more than
six (6) months), this Lease shall terminate as of the date of vesting of title
on such taking, and the Rent shall be prorated and adjusted as of such date.
8.6.2. Landlord shall be entitled to receive the entire award or payment in
connection with any taking without reduction therefrom for any estate vested in
Tenant by this Lease or any value attributable to the unexpired portion of the
Term and Tenant shall receive no part of such award. Tenant hereby expressly
assigns to Landlord all of its right, title and interest in and to every such
award or payment and waives any right to the value of the unexpired portion of
the Term.
8.7. COMPLIANCE WITH ISRA.
8.7.1.(a) Tenant agrees that it shall, at its sole cost and expense,
fulfill, observe and comply with all of the requirements of the Industrial Site
Recovery Act, N.J.S.A. 13:1K-6 et seq., and any amending and/or successor
legislation and/or regulations thereto (the "ACT"), and all rules, regulations,
opinions, orders and directives issued or promulgated in connection with the Act
by the New Jersey Department of Environmental Protection, or any other
governmental or quasi-governmental agency, authority, bureau, agency or body
which shall then have jurisdiction over administration of the Act (collectively,
the "DEP"), as the same may be amended or substituted from time to time, to the
extent such fulfillment, observance or compliance is required due to the nature
of Tenant's business or due to Tenant's specific use and/or occupancy of, or any
act or omission of
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Tenant or any Tenant Party in or about, the Premises. (The Act and all of said
rules, regulations, ordinances, opinions, orders and directives, as the same
may be amended from time to time, and any amending and/or successor legislation
and/or regulations thereto, are hereinafter collectively referred to as "ISRA".)
(b) Without limiting the generality of the foregoing, upon the
written request of Landlord or the occurrence of a Triggering Event (as
hereafter defined), Tenant agrees to cooperate with Landlord in obtaining
evidence of compliance with ISRA. Specifically in that regard, Tenant agrees
that it shall (i) execute and deliver any affidavits, applications or other
filings required by Landlord, (ii) allow inspections and testing of the
Premises, and (iii) perform any requirement reasonably requested by Landlord as
is necessary for the receipt of any such approval. Any representation or
certification made by Tenant in connection with any affidavit, application or
other filing request shall constitute a representation and warranty by Tenant
in favor of Landlord, and any misrepresentation or breach of warranty contained
in Tenant's response with any such request shall constitute an Event of Default
under this Lease.
8.7.2. Within ten (10) days after a written request by Landlord or any
Mortgagee or Underlying Lessee of Landlord, Tenant shall deliver to Landlord
and any Mortgagee or Underlying Lessee a duly executed and acknowledged
affidavit of Tenant's chief executive officer or the person having primary
responsibility for the conduct of Tenant's business operations at the Premises,
certifying:
(i) the proper four digit SIC Number (as hereafter defined) relating
to Tenant's then current use of the Premises; and
(ii) that Tenant's then current use of the Premises does not involve
the generation, manufacture, refining, transportation, treatment, storage,
handling or disposal of "Hazardous Substances" or "Hazardous Wastes" as such
terms are defined under ISRA (together, "HAZARDOUS SUBSTANCES"), on site, above
ground or below ground, or the "Discharge" (as defined in ISRA) of Hazardous
Substances (all of the foregoing are hereinafter collectively referred to as
the "PRESENCE OF HAZARDOUS SUBSTANCES"); and
(iii) if Tenant's then current use does involve the Presence of
Hazardous Substances, then said affidavit shall describe in complete detail the
portion of Tenant's operations which involves the Presence of Hazardous
Substances. Such description shall, inter alia, identify each of the Hazardous
Substances and describe the manner in which Tenant generated, handled,
manufactured, refined, transported, treated, stored and/or disposed of same.
Tenant shall supply Landlord and any Mortgagee or Underlying Lessee with such
additional information relating to the Presence of Hazardous Substances as
Landlord or such Mortgagee or Underlying Lessee requests.
8.7.3. Tenant warrants that Tenant's Standard Industrial Classification
Number as designated in the most recent edition of the Standard Industrial
Classification Manual prepared by the Office of Management and Budget in the
Executive Office of the President of the United States is 7371
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("TENANT'S SIC NUMBER"). Subject to the provisions of Article 9, Tenant's use
of the Premises shall be restricted to uses classified under Tenant's SIC
Number, Tenant covenants and agrees that it will not do or suffer anything
which will cause Tenant's SIC Number to change. Tenant recognizes that, for
purposes of ISRA, it will acquire the Standard Industrial Classification Number
of any entity for which it provides all or substantially all of its services or
products, and further covenants and agrees to notify Landlord at least thirty
(30) days prior to any change of facts which would result in the change of
Tenant's SIC Number. Upon receipt of such notice, if the new Standard
Industrial Classification Number and the use of the Premises would subject
either Tenant or the Premises to compliance with ISRA, Landlord shall have the
right, at Landlord's option, to terminate this Lease by notifying Tenant in
writing, and delivering such notice not later than thirty (30) days of
Landlord's receipt of Tenant's notice of such new Standard Industrial
Classification Number change and change in use. Tenant's failure to provide
such notice shall not affect Landlord's right to terminate this Lease if
Tenant's SIC Number changes for any reason without Landlord's prior written
consent.
8.7.4. (a) Tenant represents and warrants that the Premises will not be
an "Industrial Establishment" as that term is defined in ISRA. Tenant shall not
do or suffer anything that will cause the Premises to become an Industrial
Establishment during the Term of this Lease. Landlord, from time to time, may
require Tenant, at Tenant's sole expense, to provide proof satisfactory to
Landlord that the Premises are not an Industrial Establishment.
(b) Notwithstanding anything herein to the contrary, if Tenant's
operations at the Premises now or hereafter constitute an Industrial
Establishment, then prior to (i) the expiration or sooner termination of this
Lease, (ii) any assignment of this Lease or any subletting of any portion of
the Premises, (iii) any sale or transfer of the Premises, (iv) "Closing
Operations" (as defined in ISRA) at the Premises (said conditions (i) through
(v) each being a "TRIGGERING EVENT"), regardless of whether such Triggering
Event is caused by Landlord or Tenant, or any other tenant of the Building,
Tenant, as its sole expense, shall comply with all requirements of ISRA
pertaining to Closing Operations or Transferring Ownership or Operations of an
Industrial Establishment. Without limitation of the foregoing, Tenant's
obligations shall include (i) the proper and timely filing of an initial notice
to the DEP and all other parties entitled to notice under ISRA, when and as
required under ISRA, (ii) the performance of any "Preliminary Assessment,"
"Site Investigation," "Remedial Investigation," or "Remedial Action" (all as
defined in ISRA) as required by the DEP, and (iii) either obtaining the
approval of a "Negative Declaration" (as defined in ISRA) by the DEP or
performing a proper and approved "Remedial Action Workplan" (as defined in
ISRA) to the satisfaction of the DEP and Landlord. In the event that an
approved Remedial Action Workplan is authorized by the DEP, Tenant further
agrees that it shall, at its sole cost and expense: (a) secure remediation
financing, including, without limitation, posting any financial guarantee or
other bond required by the DEP or Landlord, in amounts sufficient to fully
implement and complete such Remedial Action Workplan; and (b) promptly and
diligently implement and prosecute same to completion, in accordance with the
schedules and criteria contained therein or as may otherwise be ordered or
directed by the DEP. Tenant expressly understands, acknowledges and agrees that
Tenant's compliance with the provisions of this Section 8.7 may require Tenant
to expend funds or do acts
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after the expiration or termination of the Term and Tenant shall not be excused
therefrom due to such expiration or termination. The entry of a "Remediation
Agreement" (as defined in ISRA) by Tenant with the DEP shall not satisfy
Tenant's obligations hereunder without obtaining the prior written approval of
Landlord for the use of same and of the terms thereof.
(c) In the event a Remedial Action Workplan or Remediation
Agreement is required, Tenant shall not undertake any Preliminary Assessment,
Site Investigation, Remedial Investigation, Remedial Action or any other
remediation without first obtaining the prior approval for the use and of same
and of the terms thereof from Landlord, and, notwithstanding any provisions of
ISRA to the contrary, Landlord shall have the right to require DEP approval of
same before Tenant shall be deemed to have satisfied its obligations hereunder
and under ISRA. Under no circumstances shall Tenant's obligations be satisfied
by remediation in accordance with "Residential Standards" (as defined in ISRA)
without first obtaining the prior written approval for the use of same from
Landlord, and, notwithstanding any provision of ISRA to the contrary, Landlord
shall have the right to require DEP approval of same before Tenant shall be
deemed to have satisfied its obligations hereunder and under ISRA.
(d) Tenant shall promptly provide copies to Landlord of all
submissions to DEP concerning any remediation.
8.7.5. In the event that Tenant is not obligated to comply with Section
8.7.4(b) above for any reason, including without limitation inapplicability of
ISRA to Tenant, then, (i) at least three (3) months prior to the expiration or
earlier termination of this Lease or any other Triggering Event caused by
Tenant, or (ii) within sixty (60) days after Tenant's receipt of notice of a
Triggering Event not caused by Tenant, Tenant shall, at Tenant's sole expense:
(i) obtain from the DEP a "nonapplicability letter" or other
written statement in form reasonably satisfactory to Landlord's counsel,
confirming that the proposed Triggering Event does not subject either Tenant or
the Premises to the requirements of ISRA. (Any representation or certification
made by Tenant in connection with any such request shall constitute a
representation and warranty by Tenant in favor of Landlord, and any
misrepresentation or breach of warranty contained in Tenant's request shall
constitute an Event of Default under this Lease); and
(ii) if reasonably indicated by Tenant's use or by the
condition of the Premises, at Landlord's option: (A) prepare a detailed soil,
groundwater and surface water sampling plan for the Premises in form and
substance reasonably satisfactory to Landlord; (B) implement the approved
sampling plan; (C) submit the results of the sampling plan to Landlord; and (D)
after Landlord's review of the results of the sampling plan, comply with
Landlord's reasonable requirements for additional testing and/or cleanup and
site detoxification of any and all areas identified by reason of the sampling
plan, or by additional testing, including without limitation any of Landlord's
reasonable requirements corresponding to those which the DEP could require
under ISRA if the Premises were an Industrial Establishment.
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8.7.6. All costs associated with Tenant's compliance with this Section 8.7,
including without limitation Landlord's reasonable costs in reviewing any
sampling plan and/or test results or any other materials required to be
submitted to the DEP in connection with ISRA compliance, in developing a plan
for remediation and site detoxification or for any other requirements of the DEP
in connection with ISRA compliance, and monitoring of same, and all consulting,
engineering and legal fees, shall be paid by Tenant as Additional Charges upon
demand from Landlord. In the event Tenant fails to comply in full with its
obligations hereunder, Landlord, at its option, may perform any and all of
Tenant's obligations as aforesaid (but shall not be obligated to do so), and all
costs and expenses incurred by Landlord in the exercise of this right shall be
deemed to be Additional Charges payable by Tenant on demand with interest at the
Default Rate (as hereinafter defined) from the date of demand, until paid in
full, it being the intention of the parties hereto that Landlord shall be free
of all expenses and obligations arising from, or necessary to achieve,
compliance to the extent such compliance is required of Tenant under this
Section 8.7.
8.7.7. Tenant does hereby agree to indemnify, defend and hold harmless
Landlord and each Mortgagee or Underlying Lessee of the Premises from all
losses, costs, damages and expenses (including fines, penalties, engineering and
other professional or expert fees, and legal fees) resulting, directly or
indirectly, whether foreseen or unforeseen, from any claim, demand, liability,
obligation, right or cause of action, including but not limited to governmental
or private rights of action (collectively, "CLAIMS" or "CLAIM"), that may be
asserted against Landlord or any such Mortgagee or Underlying Lessee as a result
of Tenant's breach of any representation, warranty or covenant of this Section
8.7, it being the intention of the parties hereto that Landlord shall be free of
all expenses and obligations arising from, or necessary to achieve, compliance
with ISRA to the extent such compliance is required of Tenant under this Section
8.7; provided, however, that Tenant shall not be obligated to indemnify Landlord
under this Section 8.7.7 if Tenant demonstrates that the Claim was based on
events occurring or conditions in existence prior to the date of this Lease.
Tenant further agrees, at its sole cost and expense, to promptly discharge and
remove any lien or encumbrance against the Premises, the Building, or the Land
or against any other property owned or controlled, in whole or in part, by
Landlord, imposed due to Tenant's failure to comply with ISRA.
8.8. Spill Act.
8.8.1. Tenant agrees that it shall, at its sole cost and expense, observe,
comply and fulfill all of the terms and provisions of the Spill Compensation and
Control Act, N.J.S.A. 58:10-23.11 et seq., as the same may be amended from time
to time, and all rules, regulations, ordinances, opinions, orders and directives
issued or promulgated pursuant to or in connection with said Act by DEP, any
subdivision or bureau thereof or governmental or quasi-governmental agency or
body having jurisdiction thereof. (Said Act and all said rules, regulations,
ordinances, opinions, orders and directives are hereinafter in this Section 8.8
collectively referred to as "SPILL ACT".)
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8.8.2. Without limiting the foregoing, the Tenant agrees:
(i) that it shall not do, omit to do or suffer the
commission or omission of any act which is prohibited by or may result in any
liability under the Spill Act, including without limitation the discharge of
petroleum products or other hazardous substances (as said terms are defined in
the Spill Act); and
(ii) whenever the Spill Act requires the "owner or operator"
to do any act, Tenant shall do such act and fulfill all such obligations at its
sole cost and expense, it being the intention of the parties hereto that
Landlord shall be free of all expense and obligations arising from or in
connection with compliance with the Spill Act.
8.8.3. Without limiting the foregoing, Tenant agrees:
(i) at its sole cost and expense, to promptly discharge and
remove any lien or any encumbrance against the Premises, the Building, the Land
or any other property owned or controlled, in whole or in part, by Landlord,
imposed by Tenant's failure to comply with the Spill Act; and
(ii) to defend, indemnify and hold Landlord harmless from and
against any and all liability, penalty, loss, expense, damages, costs, claims,
causes of action, judgments and/or the like, of whatever nature, including but
not limited to attorneys' fees and other expenses of litigation or preparation
therefor, to the extent such costs arise from or in connection with Tenant's
failure or inability, for any reason whatsoever, to observe or comply with the
Spill Act and/or the provisions of this Section 8.8.
8.8.4. Tenant agrees that each and every provision of this Section
8.8 shall survive the termination of this Lease. The parties hereto expressly
agree and acknowledge that the Landlord would not enter into this Lease but for
the provisions of this Section 8.8 and the aforesaid survival thereof.
8.9 Other Environmental Laws.
Tenant agrees that it shall, at its sole cost and expense, promptly comply
and keep continually in full compliance with all federal, state and local laws,
ordinances, rules, regulations and requirements relating to air, ground and
water pollution and protection and/or preservation of the environment.
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ARTICLE 9 - ASSIGNMENT, SUBLETTING AND MORTGAGING
9.1 General Prohibition.
Tenant shall not, whether voluntarily, involuntarily, or by operation of
law or otherwise (a) assign or otherwise transfer in whole or in part this
Lease, (b) sublet the Premises or any part thereof, or allow the same to be
used or occupied by any person other than Tenant for any purpose (including
desk space, mailing privileges or otherwise), or (c) mortgage, pledge,
encumber or otherwise hypothecate this Lease or the Premises or any part
thereof in any manner whatsoever, without in each instance obtaining the prior
written consent of Landlord. The consent by Landlord to a particular
assignment, subletting or mortgaging shall not in any way be considered a
consent by Landlord to any other or further assignment, subletting or
mortgaging.
9.2 Recapture.
9.2.1. If Tenant shall, at any time or from time to time, during the
Term propose to assign this Lease or sublet all or part of the Premises, Tenant
shall give notice thereof to Landlord ("TENANT'S NOTICE"), which notice shall
be accompanied by (i) a fully executed duplicate original of the proposed
assignment or sublease, the effective date or commencement date of which shall
be not less than ninety (90) days, nor more than one hundred and eighty (180)
days, after the giving of such notice, and the effectiveness of which shall be
expressly conditioned upon the obtaining of Landlord's written consent thereto,
(ii) a statement setting forth in reasonable detail the identity of the
proposed assignee or subtenant, the nature of its business and its proposed
use of the Premises, (iii) current financial information with respect to the
proposed assignee or subtenant, including its most-recent financial report and
bank references, and (iv) in the case of a proposed sublease of less than the
entire Premises, a floor plan clearly indicating the specific portion of the
Premises to be subleased and all means of ingress and egress to and from such
proposed sublease space. Tenant, upon request, shall also provide Landlord with
any additional information Landlord that shall reasonably request in respect of
such proposed assignment or sublease.
9.2.2. Upon Landlord's receipt of any Tenant's Notice, Landlord shall
have the following options, as applicable (collectively, the "RECAPTURE
OPTIONS"), any of which may be exercised by Landlord by written notice to
Tenant (the "RECAPTURE OPTIONS") given at anytime within a period (the
"RECAPTURE PERIOD") of sixty (60) days after its receipt of the Tenant's Notice:
(a) If a Tenant's Notice shall set forth either a proposed
assignment or a proposed sublease of seventy-five percent (75%) or more of the
then rentable area of the Premises, then Landlord shall have the option to
terminate this Lease in its entirety. If Landlord exercises such option, then
this Lease shall terminate on the date that such proposed assignment or
sublease was to become effective or commence, as the case may be, and the Rent
shall be paid and apportioned to such date.
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(b) If a Tenant's Notice shall set forth a proposed sublease demising
less than the entire Premises, then Landlord shall have the option to terminate
this Lease as to the proposed sublease space. If Landlord exercises such option,
then (i) Landlord, at Tenant's expense, shall (x) erect all partitions required
to separate such space from the remainder of the Premises and (y) install all
corridors, doors, equipment and facilities required to (aa) allow for
independent access from such space to the applicable Public Areas, (bb) comply
with any Legal Requirements or Insurance Requirements relating to such
separation and (cc) enable such space to be used, maintained and serviced as an
independent unit, and (ii) this Lease shall terminate with respect to such space
on the date that such proposed sublease was to commence and, effective as of
such termination, this Lease shall be deemed modified to (x) eliminate such
space from the Premises, and (y) reduce the Fixed Rent, on a pro rata, rentable
square foot basis.
(c) If a Tenant's Notice shall set forth a proposed sublease, then
Landlord shall have the option to cause Tenant to sublease the proposed sublease
space to Landlord or its designee for the proposed sublease term. If Landlord
exercises such option, then Tenant shall promptly execute a sublease to Landlord
or its designee for the proposed sublease term (each, a "RECAPTURE SUBLEASE"),
in form prepared by and acceptable to Landlord, which Recapture Sublease shall
be upon all the terms and conditions of this Lease, except that (i) the rent
payable under the Recapture Sublease shall be either (x) the Rent payable
hereunder, or portion thereof, that is attributable to the space demised by the
Recapture Sublease or (y) the rent payable under the proposed sublease,
whichever is less, and it is hereby expressly agreed that the Recapture Sublease
shall grant the subtenant thereunder all the economic benefits afforded by the
proposed sublease, (ii) the Recapture Sublease shall grant the subtenant
thereunder (subject only to Landlord's consent) the unqualified and unrestricted
right, without any need to obtain Tenant's consent, to (x) assign such sublease
or to further sublet the space demised thereby or any portion(s) thereof, and
(y) make alterations in and to the space demised thereby or any portion(s)
thereof, (iii) the Recapture Sublease shall provide that, at the end of its
term, Tenant shall accept the space demised thereby in its then existing
condition, and (iv) the Recapture Sublease shall not include such other terms
and conditions of this Lease that are by there nature or purport inapplicable or
irrelevant to the subleasing of the space demised thereby. In addition, if the
space demised by the Recapture Sublease is less than the entire Premises,
Landlord, at Tenant's expense, shall (A) erect all partitions required to
separate such space from the remainder of the Premises and (B) install all
corridors, doors, equipment and facilities required to (aa) allow for
independent access from such space to the applicable Public Areas, (bb) comply
with any Legal Requirements or Insurance Requirements relating to such
separation, and (cc) enable such space to used, maintained and serviced as an
independent unit.
9.3. Consent.
If (i) Landlord receives a Tenant's Notice and (ii) Landlord does not
exercise any of its Recapture Options within the Recapture Period, then,
provided that Tenant is not in default of any Tenant's obligations under this
Lease as of the date of Tenant's Notice or at anytime thereafter prior to
Landlord granting its written consent, Landlord's consent to the proposed
assignment or sublease set forth in the Tenant's Notice shall not be
unreasonably withheld or delayed; provided, that:
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(a) Tenant shall have complied with all the provisions of this Article;
(b) the proposed assignment or sublease shall comply with the provisions of
this Article, and the form thereof shall otherwise be reasonably satisfactory to
Landlord;
(c) the proposed assignee or subtenant (i) shall be a reputable person or
entity of good character, (ii) shall be engaged in a business or activity which
is in keeping with the then standards of the Building, and (iii) shall have
sufficient net worth considering the responsibility involved (and Landlord shall
have been furnished with reasonable proof thereof);
(d) the prospective occupancy of the proposed assignee or subtenant (i)
shall be limited to the use of the Premises specifically permitted by this
Lease, (ii) shall not violate any use restrictions set forth in this Lease,
(iii) shall otherwise be in keeping with the then standards of the Building, and
(iv) shall not, in the reasonable judgment of Landlord, increase the office
cleaning requirements or otherwise impose an extra burden upon services to be
supplied by Landlord to Tenant;
(e) the proposed assignment or sublease shall not result in there being
more than two (2) occupants (inclusive of Tenant and all subtenants) occupying
space within the Premises;
(f) in the case of a sublease, the sublease shall not provide for an option
on behalf of the subtenant thereunder to extend or renew the term of such
sublease; and
(g) neither the proposed assignee or subtenant nor any company controlled
by, under common control with or controlling the proposed assignee or subtenant
(i) shall then be a tenant or occupant of any space in the Building or any other
building owned or operated by Landlord, or (ii) shall have, within the one (1)
year period prior to the date of Tenant's Notice, negotiated with Landlord with
respect to the leasing of any space in the Building.
Landlord's consent to any assignment or sublease shall be set forth in an
instrument prepared by Landlord in form satisfactory to Landlord; in the case of
any assignment, such instrument shall include an assumption by the proposed
assignee of the obligations of Tenant hereunder. Landlord's consent shall not be
effective until such instrument is executed and delivered by Landlord, Tenant
and the proposed assignee or subtenant. Tenant shall reimburse Landlord on
demand for any costs that may be incurred by Landlord in connection with any
proposed assignment or sublease, including (i) the costs of making
investigations as to the acceptability of the proposed assignee or subtenant,
and (ii) legal costs incurred in connection with the granting of any requested
consent.
9.4. Profits.
9.4.1. For purposes of this Lease, the following definitions shall apply:
"ASSIGNMENT CONSIDERATION", with respect to any assignment, shall
mean an amount equal to all sums and other considerations payable to Tenant by
the assignee for or by reason of such
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assignment (including sums paid for the sale or rental of any Tenant's
Property, less, in the case of a sale thereof, the then net unamortized or
undepreciated cost thereof determined on the basis of Tenant's federal income
tax returns).
"SUBLEASE CONSIDERATION", with respect to any sublease with respect
to any calendar year, shall mean the excess of (i) any and all rents,
additional charges or other consideration payable under the sublease to Tenant
by the subtenant (including sums paid for the sale or rental of Tenant's
Property located in the sublease premises, after deducting, in the case of the
sale thereof, the then net unamortized or undepreciated cost thereof,
determined on the basis of Tenant's federal income tax returns), over (ii) the
Rent accruing during such year in respect of the subleased space (at the rate
per square foot payable by Tenant hereunder) pursuant to the terms hereof.
"TRANSACTION EXPENSES", with respect to any assignment or sublease,
shall mean the sum of (i) the out-of-pocket and reasonable advertising expenses
and brokerage commissions paid by Tenant in connection with the assignment or
sublease, plus (ii) the out-of-pocket construction and work allowance costs
paid by Tenant in order to prepare the Premises (or portion thereof) for the
initial occupancy of the assignee or subtenant.
9.4.2. If Landlord shall consent to any assignment of this Lease, then,
in consideration therefor, Tenant, within thirty (30) days after the effective
date of the assignment, shall (i) deliver to Landlord a written statement,
certified by an officer of Tenant, setting forth the Assignment Consideration
and the Transaction Expenses with respect to such assignment, and (ii) pay to
Landlord, as Additional Charges, an amount equal to fifty percent (50%) of the
Assignment Consideration over the Transaction Expenses.
9.4.3. If Landlord shall consent to any sublease of all or any portion of
the Premises, then, in consideration therefor, Tenant, within thirty (30) days
after the close of each calendar year during the Term in which such sublease
is in effect, shall (i) deliver to Landlord a written statement, certified by
an officer of Tenant, setting forth the Sublease Consideration for such
calendar year and the Transaction Expenses with respect to such sublease, and
(ii) either retain or pay to Landlord the Sublease Consideration for such year,
in accordance with the following: first, Tenant may retain the entire Sublease
Consideration for such year to the extent of the Transaction Expenses incurred
with respect to such sublease (except to the extent Tenant retained amounts
under this clause first in prior years); and second, Tenant shall pay to
Landlord an amount equal to fifty percent (50%) of the balance of the Sublease
Consideration for such year.
9.5. Miscellaneous.
9.5.1. Notwithstanding any assignment or transfer of this Lease, and
notwithstanding the acceptance of Rent by Landlord from an assignee,
transferee, or any other party, Tenant shall remain fully liable for the
payment of Rent and for the performance and observance of all other
obligations of this Lease on the part of Tenant to be performed or observed.
Tenant's liability shall be joint and several with any immediate and remote
successors in interest of Tenant, and such joint and several
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liability in respect of Tenant's obligations under this Lease shall not be
discharged, released or impaired in any respect by any agreement or stipulation
made by Landlord extending the time of, or modifying any of the obligations of,
this Lease, or by any waiver or failure of Landlord to enforce any of the
obligations of this Lease.
9.5.2. All subleases shall be subject and subordinate to this Lease, and
each sublease shall expressly so provide and shall further provide that in the
event this Lease is terminated by Landlord by reason of an Event of Default,
Landlord may, at its option, take over all of the right, title and interest of
Tenant, as sublessor, under such sublease, and such subtenant shall, at
Landlord's option, attorn to Landlord pursuant to the then executory provisions
of such sublease, except that Landlord shall not be (1) liable for any previous
act or omission of Tenant under such sublease, (2) subject to any credit,
offset, claim, counterclaim, demand or defense which such subtenant may have
against Tenant, or responsible for any monies owing by Tenant to the subtenant,
(3) bound by any previous prepayment of more than one (1) month's rent, (4)
bound by any previous modification of such sublease (made without Landlord's
consent), (5) bound by any covenant to undertake or complete any construction in
the Premises or any part thereof, (6) required to account for any security
deposit of the subtenant other than any security deposit actually delivered to
Landlord by Tenant, or (7) required to remove any person occupying the Premises
or any part thereof. No sublease shall be for a term ending later than one day
prior to the Expiration Date. Each sublease shall provide that the subtenant may
not assign its rights thereunder or further sublet the space demised under the
sublease, in whole or in part, without Landlord's consent and shall include
provisions substantially the same as the provisions of Section 9.5.3 hereof. If
an Event of Default shall occur, then Landlord, thereafter at its own option and
without waiving any such default, may collect Rent from any then existing
subtenant of the Premises. Notwithstanding any subletting by Tenant (including
any subletting pursuant to a Recapture Sublease), and notwithstanding the
acceptance of Rent by Landlord from any subtenant, Tenant shall and will remain
fully liable for the payment of the Rent, for the performance and observance of
all other obligations of this Lease on the part of Tenant to be performed or
observed, and for all acts or omissions of any subtenant (or anyone claiming
under or through any subtenant) which shall be in violation of any of the terms
and conditions of this Lease, each such violation being deemed to be a violation
by Tenant.
9.5.3. For purposes of this Lease, (i) a change in control of Tenant (or of
any subtenant of Tenant) shall be deemed an assignment of this Lease (or of such
sublease), (ii) a "take-over agreement" pursuant to which one or more persons
shall agree to assume the obligations of Tenant hereunder in consideration of
Tenant leasing space in another building shall be deemed an assignment of this
Lease, and (iii) a modification, amendment or extension of a sublease shall be
deemed a sublease.
9.5.4. In no event shall Tenant ever (i) advertise or publicize in any way
the availability of the Premises without prior notice to and approval by
Landlord (which approval shall not be unreasonably withheld), nor shall any
advertisement state the name (as distinguished from the address) of the Building
or the proposed rental, (ii) list the Premises for subletting, whether through a
broker, agent, representative, or otherwise at a rental rate less than the
greater of (1) the Rent
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payable hereunder for such space, or (2) the rental rate at which Landlord is
then offering to lease other space in the Building.
9.5.5. If Landlord exercises any of its Recapture Options, then
Landlord, thereafter, shall be free to, and shall have no liability to Tenant if
it shall, enter into a lease, sublease, assignment or other transaction with
Tenant's proposed assignee or subtenant or any other person concerning the whole
or any portion of the Premises or otherwise. If Landlord shall exercise any of
its Recapture Options, or if, after failing to exercise any of its Recapture
Options, Landlord shall decline to give its consent to any proposed assignment
or sublease, then, in any such case, Tenant shall indemnify, defend and hold
harmless Landlord against and from any and all loss, liability, damages, costs
and expenses (including reasonable counsel fees) resulting from any claims that
may be made against Landlord by the proposed assignee or subtenant or by any
brokers or other persons claiming a commission or similar compensation in
connection with the proposed assignment or sublease.
9.5.6. Notwithstanding the foregoing, without Landlord's consent but
upon notice to Landlord, Tenant may assign this Lease or sublet all or a portion
of the Premises to:
(a) any corporation whose stock is wholly owned by Tenant;
(b) any corporation that owns all of the stock of Tenant; or
(c) any corporation whose stock is wholly owned by the same
corporation that owns all of the stock of Tenant.
ARTICLE 10 - SURRENDER; HOLDOVER
10.1. Surrender.
Upon the expiration or any earlier termination of this Lease, Tenant
shall fully vacate and surrender the Premises to Landlord in accordance with
the provisions of this Lease (including Article 5 hereof), "broom-clean" and in
good order, condition and repair.
10.2. Holdover.
If Tenant shall fail to vacate and surrender the Premises upon the
expiration or earlier termination of this Lease, then, throughout the period
commencing on such expiration or earlier termination and continuing until
Tenant shall fully vacate and surrender the Premises (such period being herein
called the "HOLDOVER PERIOD"), Tenant shall be deemed a holdover tenant and
shall be liable to Landlord for rent, or a charge in respect of use and
occupancy, at a per diem rate, for each day of the Holdover Period, equal to
one and one half (1.5) times the average per diem rate of Rent payable by
Tenant during the last year of the Term (i.e., the year immediately prior to
the Holdover Period). In addition to the foregoing, Landlord shall be entitled
to recover from Tenant any losses
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or damages arising from such holdover. Nothing herein shall be deemed to grant
Tenant any right to holdover, and in no event shall the acceptance of any rent
preclude Landlord from commencing and prosecuting any holdover or eviction
proceeding.
ARTICLE 11 - DEFAULT BY TENANT; LANDLORD'S REMEDIES
11.1. Events of Default.
Each of the following events shall constitute an "EVENT OF DEFAULT":
(a) If Tenant shall default in the payment of any Rent, and such
default shall continue for five (5) days.
(b) If Tenant shall, whether by action or inaction, be in default of any
of its obligations under this Lease (other than a default in the payment of
Rent) and such default shall continue and not be remedied as soon as practicable
and in any event within fifteen (15) days after Landlord shall have given to
Tenant a notice specifying the same, or, in the case of a default which cannot
with due diligence be cured within a period of fifteen (15) days, if Tenant
shall not (x) within such fifteen (15) day period advise Landlord of Tenant's
intention to take all steps necessary to remedy such default, (y) duly commence
within such 15-day period, and thereafter diligently prosecute to completion,
all steps necessary to remedy the default, and (z) complete such remedy within a
reasonable time after the date of such notice of Landlord.
(c) If this Lease or the estate hereby granted or the unexpired balance
of the Term, by operation of law or otherwise, devolve upon or pass to any
person or entity other than Tenant, except as expressly permitted by Article 9
hereof.
(d) If Tenant shall vacate or abandon the Premises (and the fact that
any of Tenant's Property remains in the Premises shall not be evidence that
Tenant has not vacated or abandoned the Premises).
(e) If (i) Tenant shall commence a case in bankruptcy, or under the
insolvency laws of any state, naming Tenant as a debtor, or (ii) any other
person shall commence a case in bankruptcy, or under the insolvency laws of any
state, naming Tenant as a debtor, and such case shall not have been discharged
within thirty (30) days of the commencement thereof, or (iii) Tenant shall make
an assignment for the benefit of creditors or any other arrangement involving
all or substantially all of its assets under any state statute, or (iv) a
receiver or trustee shall be appointed for Tenant or for all or any portion of
the property of Tenant in any proceeding, which receivership shall not have
been set aside within thirty (30) days of such appointment.
(f) If a default of the kind set forth in subsection (a) or (b) above
shall occur and if either (i) Tenant shall cure default within the applicable
grace period or (ii) Landlord shall, in its sole
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discretion, permit Tenant to cure such default after the applicable grace period
has expired, and if a similar default shall occur more than twice within the
next three hundred sixty-five (365) days, whether or not such similar default or
defaults is or are cured within the applicable grace period set forth therein.
11.2. Termination, Re-Entry, Damages, Etc.
11.2.1. This Lease and the estate hereby granted are subject to the
limitation that if an Event of Default shall occur, then, in any such case,
Landlord may give to Tenant a notice of intention to terminate this Lease and
the Term as of the fifth (5th) day after the giving of such notice, and, in
which event, as of such fifth (5th) day, this Lease and the Term shall terminate
with the same effect as if such day was the Expiration Date, but Tenant shall
remain liable for damages as hereinafter provided.
11.2.2. If this Lease shall be terminated as provided in Section
11.2.1 above, Landlord, or its agents or employees, may reenter the Premises at
any time and remove therefrom Tenant and all Tenant Parties, together with any
of its or their property, either by summary dispossess proceedings or by any
suitable action or proceeding at law or otherwise. In the event of such
termination, Landlord may repossess and enjoy the Premises. Landlord shall be
entitled to the benefits of all provisions of law respecting the speedy recovery
of lands and tenements. Tenant waives any rights to the service of any notice of
Landlord's intention to re-enter provided for by any present or future law.
Landlord shall not be liable in any way in connection with any action it takes
pursuant to the foregoing. Notwithstanding any such re-entry, recession,
dispossession or removal, if this Lease is terminated prior to the Expiration
Date by reason of an Event of Default, Tenant's liability under the provisions
of this Lease shall continue until the date the Term would have expired had such
termination not occurred.
11.2.3. In any case of termination of this Lease, or re-entry or
repossession of the Premises, whether the same is the result of the institution
of summary or other proceedings, Tenant shall remain liable (in addition to
theretofore accrued liabilities) to the extent legally permissible for: (I) the
Rent, together with (A) all other charges provided for herein until the date
this Lease would have expired had such termination, re-entry or repossession not
occurred, (B) all expenses which Landlord may incur in (1) re-entering or
repossessing the Premises, (2) making good any default of Tenant, (3) painting,
altering or dividing the Premises, combining the same with other space, or
placing the same in proper repair, (4) protecting and preserving the Premises by
placing therein watchmen and caretakers, and (C) all expenses which Landlord may
incur in reletting the Premises (including reasonable attorneys' fees and
disbursements, marshall's fees and brokerage fees), less (II) the net proceeds
of any reletting. Tenant agrees to pay to Landlord the difference between items
(I) and (II) hereinabove with respect to each month, at the end of such month.
Any suit brought by Landlord to enforce collection of such difference for any
one month shall not prejudice Landlord's right to enforce the collection of any
difference for any subsequent month. In addition to the foregoing, Tenant shall
reimburse Landlord all reasonable attorneys' fees and disbursements incurred by
Landlord with respect to any such action or proceeding to collect such
difference and/or any action
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or proceeding to otherwise collect any rent and/or to enforce any of Tenant's
other obligations under this Lease and/or any summary or other dispossess
proceedings.
11.2.4. Landlord may, in its sole discretion, relet the whole or any
part of Premises for the whole or any part of the unexpired Term, or longer, or
from time to time for shorter periods, for any rental it wishes and giving such
concessions of rent and making such special repairs, alterations, decorations
and paintings for any new tenant as it may in its sole and absolute discretion
deem advisable, and Landlord may collect and receive the rents thereunder. In
no event shall Landlord ever be obligated to relet or to attempt to relet the
Premises or any part thereof while other space remains available for lease at
the Real Property; provided, however, that Landlord shall make commercially
reasonable efforts to relet the Premises, taking into account the space then
available or scheduled to become available for lease at the Real Property, it
being understood that Landlord shall be entitled to let and attempt to let
space available or scheduled to become available at the Real Property during
the unexpired Term in preference to the Premises.
11.2.5. If, after a termination of this Lease as aforesaid, Landlord, in
its sole discretion, so elects, Tenant shall pay Landlord, on demand, as
liquidated and agreed final damages, the present value (calculated at a
discount rate of 6%) of the Rent and all other charges which would have been
payable by Tenant from the date of such demand to the date that this Lease
would have expired if it had not been terminated as aforesaid. Upon payment of
such liquidated and agreed final damages, Tenant shall have no further
liability with respect to the period after the date of such demand.
11.3. Late Payments of Rent.
If Tenant shall fail to pay any Rent within five (5) days after the due
date therefor, then Tenant, in addition to such Rent, shall pay Landlord a late
charge of five (5) cents for each dollar of the amount of Rent not so paid. In
addition, if any such failure to pay Rent shall continue for a period of thirty
(30) days after notice thereof to Tenant, then the past due Rent shall bear
interest at the Interest Rate, from the due date thereof until paid. The amount
of any such late charge and/or interest shall each be an Additional Charge
hereunder and shall be payable upon demand. The assessment and receipt of late
charges and interest as aforesaid shall be in addition to, and shall in no way
be deemed to limit, any other rights and remedies Landlord may have under this
Lease or otherwise for non-payment of Rent.
11.4. Landlord's Cure and Enforcement Rights.
11.4.1. If Tenant shall default in the performance of any of Tenant's
obligations under this Lease, Landlord, without thereby waiving such default,
may (but shall not be obligated to) perform the same for the account and at the
expense of Tenant, without notice in any case of emergency, and, in any other
case, if such default continues after the expiration of the applicable grace
period set forth herein, if any.
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11.4.2. Tenant, upon demand, shall reimburse Landlord for any expenses
incurred by Landlord (including reasonable attorneys' fees) pursuant to, or in
connection with, (i) any performance by Landlord for the account of Tenant
pursuant to Section 11.4.1 above, or (ii) collecting or endeavoring to collect
Rent or any component thereof, or enforcing or endeavoring to enforce any of
Landlord's rights against Tenant hereunder or any of Tenant's obligations
hereunder, together, in either case, with interest thereon, at the Default Rate,
from the date that such expenses were incurred by Landlord to the date that the
same are reimbursed to Landlord by Tenant.
11.5. Additional Remedies.
The specific remedies granted to Landlord under this Lease are cumulative
and are not intended to be exclusive of each other or of any other remedies
which may be available to Landlord at law or in equity. Landlord may exercise
any and/or all such rights and remedies (whether specifically granted herein or
otherwise available to Landlord at law or in equity) at such times, in such
order, to such extent, and as often, as Landlord deems advisable without regard
to whether the exercise for any such right or remedy precedes, is concurrent
with or succeeds the exercise of another such right or remedy.
11.6. Security.
Tenant, simultaneously herewith, shall deposit with Landlord the cash sum
of $26,212.30 as security for the full and punctual performance by Tenant of all
of the terms and conditions of this Lease (such amount, together with any
interest earned thereon, if any, being herein called the "SECURITY DEPOSIT"). In
respect thereof, the following provisions shall apply:
(a) If Tenant defaults hereunder, Landlord may use, apply or retain the
whole or any part of the Security Deposit to the extent required for the payment
of any Rent or any other sum(s) as to which Tenant is in default or for any
sum(s) which Landlord may expend or may be required to expend by reason of
Tenant's default pursuant hereto, including any damages or deficiency with
respect to the reletting of the Premises, whether accruing before or after
summary proceedings or other re-entry by Landlord. In the case of every such
use, application or retention, Tenant shall, on demand, pay to Landlord the sum
so used, applied or retained such that the Security Deposit shall be replenished
to its former amount.
(b) If Tenant shall fully and punctually comply with all of the terms and
conditions of this Lease, then the Security Deposit (or portion thereof to which
Tenant is entitled) shall be returned or paid over to Tenant within forty-five
(45) days after the expiration or termination of this Lease and the surrender of
the Premises to Landlord in accordance herewith.
(c) In the event of a sale or lease of the Building (or the portion
thereof containing the Premises), Landlord shall have the right to transfer the
security to the vendee or lessee, and Landlord shall ipso facto be released by
Tenant from all liability for the return of such security and Tenant agrees to
look solely to the new landlord for the return thereof provided that such new
landlord
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assumes Landlord's obligations under this Lease. Except in connection with a
permitted assignment of this Lease. Tenant shall not assign or encumber or
attempt to assign or encumber the monies deposited as security and Landlord
shall not be bound by any such assignment, encumbrance or attempted assignment
or encumbrance.
11.7. Lien on Personal Property.
INTENTIONALLY DELETED.
ARTICLE 12 - LIMITATIONS ON LANDLORD'S LIABILITY
12.1. Limitation to Landlord's Estate.
Tenant shall look only to Landlord's estate and property in the Real
Property for the satisfaction of Tenant's remedies, or for the collection of a
judgment (or other judicial process), against Landlord hereunder, and no other
property or assets of Landlord or any Landlord Party shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to this Lease, the relationship of Landlord and
Tenant hereunder or Tenant's use or occupancy of the Premises.
12.2. No Liability For Certain Damages, Etc.
Landlord shall have no liability to Tenant for (a) any damage or loss
caused by other tenants or other persons in, upon or about the Real Property, or
caused by operations in construction of any public or quasi-public work, or (b)
except to the extent caused by Landlord's negligence, any other loss or damage
to persons or property (including any property of Tenant or any Tenant Party).
Further, Landlord, even if negligent, shall not be liable to Tenant for
consequential damages, whether arising out of any loss of use of the Premises or
any Tenant Improvements or other Tenant's Property therein or otherwise.
12.3. Events of Force Majeure.
Landlord shall have no liability to Tenant if Landlord is unable to
fulfill, or is delayed in fulfilling, any of its obligations under this Lease by
reason of one or more Events of Force Majeure.
12.4. Withholding of Consents/Approvals.
If Tenant shall request Landlord's consent or approval and Landlord shall
fail or refuse to give such consent or approval, Tenant shall not be entitled to
any damages for any withholding by Landlord of its consent or approval, it being
intended that Tenant's sole remedy shall be an action for specific performance
or injunction, and that such remedy shall be available only in those cases where
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Landlord has expressly agreed in writing not to unreasonably withhold its
consent or where as a matter of law Landlord may not unreasonably withhold its
consent or approval.
ARTICLE 13 - GENERAL DEFINITIONS
13.1. General Definitions.
For purposes of this Lease, the following terms shall have the meanings
indicated:
"AFFILIATE", of any person, shall mean a corporation, partnership or other
entity which controls, is controlled by or is under common control with such
person.
"BASE BUILDING" shall mean (i) the structural elements of the Building,
(ii) the walkways, plazas, outdoor stairways and all other improvements and/or
landscaping on the Land, (iii) the pedestrian, freight and service entrances to
the Building, (iv) the Public Areas and all improvements, fixtures and equipment
therein, (v) the Building's utility and other mechanical rooms and closets
(including electrical, telephone and janitorial rooms and closets and fan rooms)
and the Building's equipment, storage and service rooms and areas, and all
improvements, fixtures and equipment therein, (vi) the Building's columns,
shafts, stacks, pipes, ducts and other conduits, (vii) the Building Systems and
all other facilities and equipment which are used for the provision of Building
Services (whether or not located in the Premises); excluding, however, in all
events, the Premises, Tenant's Improvements and Tenant's Property as well as
other leasable areas of the Building and the improvements and betterments, and
the moveable personal property, of other tenants of the Building.
"BUILDING SYSTEMS" shall mean all the electrical, HVAC, mechanical,
chilled/condenser water, sanitary, sprinkler, utility, power, plumbing,
cleaning, fire control, alarm and prevention systems, elevator, escalator,
window washing, waste compacting and removal, lighting, life safety, security
and other systems of the Building (together with all related equipment), brought
to (and including), but not beyond, the point of distribution or connection to
the Premises or to Tenant's Improvements, provided, that all components of the
Building's sprinkler system up to and including the main sprinkler loop on each
floor (but excluding the sprinkler heads) and all components of the Building's
plumbing system in or serving the Core Lavatories shall be deemed to be included
in within the term "Building Systems"; excluding, however, in all events,
Tenant's Improvements and Tenant's Property as well as the improvements and
betterments, and the moveable personal property, of other tenants of the
Building.
"CONTROL" shall mean (i) in the case of a corporation, either (A)
ownership or voting control, directly or indirectly, of at least fifty (50%)
percent of all the voting stock, or (B) the power to direct the management and
policies of such corporation, (ii) in case of a partnership or joint venture,
either (x) ownership, directly or indirectly, of at least fifty (50%) percent of
all the general or other partnership (or similar) interests therein, or (y) the
power to direct the management and policies of such partnership or joint
venture, and (iii) in the case of any other entity, either (x) ownership,
directly
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or indirectly, of at least fifty (50%) percent of all the equity or other
beneficial interest(s) therein, or (y) the power to direct the management and
policies of such entity.
"CORE LAVATORIES" shall mean the Building's core lavatories (including
all toilets, urinals, partitions, flooring, tiling, sinks, piping, counters and
other equipment therein from time to time).
"DEFAULT RATE" shall mean an interest rate equal to greater of (i)
eighteen percent (18%) per annum, and (ii) the Interest Rate; but in no event
shall the "Default Rate" be a rate greater than the highest lawful rate from
time to time in effect.
"EVENT OF FORCE MAJEURE" shall mean (i) any strike, lock-out or other
labor trouble, governmental preemption of priorities, or other controls in
connection with a national or other public emergency, or any shortage of
materials, supplies or labor, or (ii) any failure or defect in the supply,
quantity or character of electricity, water, oil, gas, steam or other utility
furnished to the Premises, by reason of any Legal Requirement or any
requirement, act or omission of the public utility or other person(s) serving
the Building with electricity, water, oil, gas, steam or other utility, or
(iii) any accident, fire or other casualty, or other act of God, or (iv) any
other event, whether similar or dissimilar, beyond Landlord's reasonable
control.
"GOVERNMENTAL AUTHORITY" shall mean the United States, the State of New
Jersey, the Township of East Hanover, and/or any political subdivision
thereof any thereof, and/or any agency, department, commission, board or
instrumentality of any thereof.
"INSURANCE REQUIREMENTS" shall mean all orders, rules, regulations,
requirements, policies or recommendations of any board of fire underwriters,
fire rating organization, insurance rating organization or any other body
exercising the same or similar functions to the foregoing (collectively,
"insurance rating organizations") which have jurisdiction over, or otherwise
make rates or findings in respect of, all or any part of the Real Property.
"INTEREST RATE" shall mean an interest rate equal to two percent (2%)
above the so-called annual "BASE RATE" of interest established and approved by
The Bank of New York, from time to time, as its interest rate charged for
unsecured loans to its corporate customers, but in no event greater than the
highest lawful rate from time to time in effect.
"LANDLORD" shall mean only the owner, at the time in question, of the
Building or that portion of the Building of which the Premises are a part, or of
an Underlying Lease of the Building or that portion of the Building of which the
Premises are a part, so that in the event of any transfer or transfers of title
to the Building or of Landlord's interest in an Underlying Lease of the Building
or such portion of the Building, the transferor shall be and hereby is relieved
and freed of all obligations of Landlord under this Lease accruing after such
transfer, and it shall be deemed, without further agreement, that such
transferee has assumed and agreed to perform and observe all obligations of
Landlord herein during the period it is the holder of Landlord's interest under
this Lease.
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"LANDLORD PARTY" shall mean (1) any principal, partner, member, officer,
stockholder, director, employee or agent of Landlord or of any partner or
member of any partnership constituting Landlord, disclosed or undisclosed, (2)
any Underlying Lessor or any principal, partner, member, officer, stockholder,
director, employee or agent thereof, and (3) any Mortgagee or any principal,
partner, member, officer, stockholder, director, employee or agent thereof; and
"LANDLORD PARTIES" shall have the corresponding plural meaning.
"LEGAL REQUIREMENTS" shall mean all applicable laws, statutes and
ordinances (including codes, approvals, permits and zoning regulations and
ordinances) and the orders, rules, regulations, interpretations, directives and
requirements of all federal, state, county, city and borough departments,
bureaus, boards, agencies, offices, commissions and other sub-divisions
thereof, or of any official thereof, or of any other governmental, public or
quasi-public authority, whether now or hereafter in force.
"PERSON" shall mean any natural person or persons, a partnership, a
corporation, and any other form of business or legal association or entity.
"PUBLIC AREAS" shall mean, collectively, the areas of the Real Property
which, from time to time, are open to the public as means of ingress and
egress to and from the Building and the various parts thereof, including the
public walkways on the Land, the Building's public street entrances, the
Building's ground floor and other public lobbies (and, with respect to any
multi-tenanted floor, any common elevator lobbies thereon), the Building's
public hallways, corridors and passages (and, with respect to any
multi-tenanted floor, any common corridors thereon), the Building's public
stairways, and, with respect to any multi-tenanted floor, the Core Lavatories
thereon serving more than one tenant.
"REAL PROPERTY" shall mean, collectively, the Building, inclusive of the
Base Building, and all improvements, fixtures, facilities, machinery and
equipment comprising a part of, or located in or used in the operation of, the
Building (including without limitation all improvements and betterments of
tenants), as well as all personal property located in the Building which is
used in the operation thereof, the Land, the curbs, sidewalks and plazas
immediately adjoining the Land, and all easements, air rights, development
rights and other appurtenances to the Building and/or the Land.
"STRUCTURAL ELEMENTS", of the Building, shall mean the Building's roof,
roof terraces, slabs, beams, columns, girders and other structural members and
connections, as well as the Building's exterior walls, window frames and
windows and all other parts of the Building's structure and supports.
"TENANT" shall mean the Tenant herein named or any assignee or other
successor in interest (immediate or remote) of the Tenant herein named, which
at the time in question is the owner of the Tenant's estate and interest
granted by this lease; but the foregoing provisions of this subsection shall
not be construed to permit any assignment of this lease or to relieve the
Tenant herein named or any assignee or other successor in interest (whether
immediate or remote) of the Tenant herein named
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from the full and prompt payment, performance and observance of the covenants,
obligations and conditions to be paid, performed and observed by Tenant under
this lease.
"TENANT PARTY" shall mean (1) any principal, partner, member, officer,
stockholder, director, employee or agent of Tenant or of any partner or member
of any partnership constituting Tenant, disclosed or undisclosed, or (2) any
subtenant of Tenant or any other party claiming by, through or under Tenant, or
any principal, partner, member, officer, stockholder, director, employee or
agent of such subtenant or such other party; and "TENANT PARTIES" shall have the
corresponding plural meaning.
"UNTENANTABLE", when used with respect to the Premises, or any portion
thereof, shall mean that the Premises, or such portion thereof, is not capable
of being occupied by Tenant (or any Tenant Party) for the purposes demised
hereunder (and, accordingly, that the Premises, or such portion thereof, is not
being occupied by Tenant (or any Tenant Party) for the purposes demised
hereunder); and "TENANTABLE", when used with respect to the Premises, or any
portion thereof, shall mean that the Premises, or such portion thereof, are not
untenantable.
13.2. Terms, Phrases and References.
In addition, as used in this Lease, the following terms, phrases and
references, shall have the meanings indicated:
(a) The term "ALTERATIONS" shall include additions, deletions,
improvements and/or any other changes.
(b) The phrase "AND/OR" when applied to one or more matters or things
shall be construed to apply to any one or more or all thereof as the
circumstances warrant at the time in question.
(c) The terms "HEREIN", "HEREOF" and "HEREUNDER," and words of similar
import, shall be construed to refer to this Lease as a whole, and not to any
particular Article or Section, unless expressly so stated.
(d) The term "INCLUDING", whenever used herein, shall mean "including
without limitation", except in those instances where it is expressly provided
otherwise.
(e) The term "REPAIRS" shall include, as appropriate, replacements.
(f) The provisions of this Lease which (i) provide that "LANDLORD SHALL
HAVE NO LIABILITY TO TENANT" for any act, omission or other event, (ii) provide
that any act, omission or other event shall be "WITHOUT LIABILITY ON THE PART
OF LANDLORD", (iii) provide that Landlord may perform an act or exercise a
right, or permit another person to do so, "WITHOUT INCURRING ANY LIABILITY TO
TENANT THEREFOR", or (iv) provide, with words of similar import, that Landlord
is similarly not liable to Tenant for a given act, omission or other event,
shall, in the case of each such provision, mean that
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(x) Tenant shall not be entitled to terminate this Lease, or to claim actual or
constructive eviction, partial, or total, or to receive any abatement or
diminution of Rent, or to be relieved in any manner of any of its other
obligations hereunder, and (y) neither Tenant nor any Tenant Party shall have
any claim (of any kind or nature whatsoever, at law or in equity) against
Landlord or any Landlord Party (or otherwise be entitled to any compensation
from Landlord or any Landlord Party) for any loss or injury suffered by reason
of such act, omission or other event.
ARTICLE 14 - MISCELLANEOUS
14.1. Notices.
Any notice, statement, demand, consent, approval or other
communication required or permitted to be given, rendered or made by either
Landlord or Tenant pursuant to this Lease (collectively, "NOTICES") shall be in
writing and shall be deemed to have been properly given, rendered or made only
if sent by (i) registered or certified mail, return receipt requested, posted
in a United States post office station or letter box in the States of New York
or New Jersey (in which event such notice shall be deemed to have been given,
rendered or made on the third (3rd) Business Day after the day so mailed), or
(ii) overnight courier service (in which event such notice shall be deemed to
have been given, rendered or made when delivered), and (a) in the case of a
notice to Tenant, to the address for Tenant hereinabove set forth at the
beginning of this Lease (except that, after the Commencement Date, the address
for Tenant shall be the Premises), and (b) in the case of a notice to Landlord,
to:
CIN EAGLE ROCK, L.L.C.
Linque Management Co., as Agent
301 Route 17 North, 9th Floor
Rutherford, New Jersey 07070
Attn: Joel J. Bergstein, Executive Vice President
with a copy to:
Earp Cohn P.C.
222 Haddon Avenue
Westmont, New Jersey 08108
Attn: Richard B. Cohn, Esquire
Either party may, by notice as aforesaid, designate a different address or
addresses for notices intended for it.
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14.2. Brokerage.
Tenant covenants, warrants and represents to Landlord that no broker,
other than Associated Realty, Inc., and Linque Management Company, Inc.
(together, "BROKER"), was instrumental in bringing about or consummating this
Lease and that Tenant has had no conversations or negotiations with any broker
except Broker concerning the leasing of the Premises. Tenant agrees to indemnify
and hold harmless Landlord against and from any claims for any brokerage
commissions and all costs, expenses and liabilities in connection therewith,
including, without limitation, attorneys' fees and expenses, arising out of any
conversations or negotiations had by Tenant with any broker other than Broker.
Landlord agrees to pay Broker pursuant to a separate agreement or agreements.
14.3. Estoppel Certificates.
Tenant, at any time and from time to time, on or prior to the tenth
(10th) day following a written request by Landlord, shall execute and deliver to
Landlord (and/or to a party designated by Landlord) a statement (i) certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications), (ii) certifying to the Commencement Date, Expiration
Date, and the dates to which Rent has been paid, (iii) stating whether or not,
to the best knowledge of Tenant, Landlord is in default in performance of any of
its obligations under this Lease (and, if so, specifying each such default of
Tenant shall have knowledge), and (iv) stating whether or not, to the best
knowledge of Tenant, any Event of Default has occurred which is then continuing
(or any event has occurred which with the giving of notice or passage of time,
or both, would constitute an Event of Default), and, if so, specifying each such
event. Tenant also shall include or confirm in any such statement such other
information concerning this Lease as Landlord may reasonably request.
14.4. Affirmative Waivers.
Landlord and Tenant hereby waive trial by jury in any action, proceeding
or counterclaim brought by either against the other on any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant, Tenant's use or occupancy of the Premises, including any
claim of injury or damage, and any emergency and other statutory remedy with
respect thereto. Tenant shall not interpose any counterclaim of any kind in any
action or proceeding commenced by Landlord to recover possession of the
Premises. Tenant hereby waives any right of redemption or similar right that it
may have with respect to this Lease after the termination hereof.
14.5. No Waivers.
14.5.1. No delay or omission by Landlord in exercising a right or remedy
shall exhaust or impair such right or remedy or constitute a waiver of, or
acquiescence in, any default by Tenant. A single or partial exercise of a right
or remedy shall not preclude a further exercise thereof, or the exercise of
another right or remedy, from time to time.
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14.5.2. The receipt by Landlord of Rent with knowledge of any default by
Tenant shall not be deemed a waiver of such default, and no provision of this
Lease, or any default by Tenant hereunder, shall be deemed to have been waived
by Landlord unless such waiver be in writing signed by Landlord.
14.5.3. No payment by Tenant or receipt by Landlord of a lesser amount
than the Rent herein stipulated shall be deemed to be other than on account of
the stipulated Rent. No endorsement or statement of any check or any letter
accompanying any check or payment as rent shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such rent or pursue any other remedy
in this Lease provided.
14.6. No Representations.
Tenant expressly acknowledges and agrees that Landlord has not made and
is not making, and Tenant, in executing and delivering this Lease, is not
relying upon, any warranties, representations, promises or statements, except
to the extent that the same are expressly set forth in this Lease.
14.7. Memorandum of Lease.
Tenant shall not record this Lease or any memorandum hereof.
14.8. Partnership Tenant.
If, at anytime during the Term, Tenant shall be a partnership (or be
comprised of two (2) or more persons) (any such partnership and/or such persons
being herein called "PARTNERSHIP TENANT"), then the liability of each of the
parties comprising Partnership Tenant (whenever such parties shall be admitted
or become partners) shall be joint and several.
14.9. Authority of Tenant.
Tenant represents and warrants that this Lease has been duly authorized,
executed and delivered by Tenant and constitutes the legal, valid and binding
obligation of Tenant.
14.10. Governing Law.
This Lease shall be governed by, and construed in accordance with, the
laws of the State of New Jersey.
14.11. Entire Agreement; Modifications.
This Lease represents the entire agreement of the parties, and,
accordingly, all understandings and agreements heretofore had between the
parties are merged in this Lease, which alone fully and
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completely express the agreement of the parties. No amendment, surrender or
other modification of this Lease shall be effective unless in writing and
signed by the party to be charged therewith.
14.12. Severability.
If any provisions of this Lease or the application thereof to any person
or circumstance shall, for any reason and to any extent, be invalid or
unenforceable, the remainder of this Lease and the application of that
provision to other persons or circumstances shall not be affected but rather
shall be enforced to the extent permitted by law.
14.13. Interpretation.
The table of contents, captions, headings and titles in this Lease are
solely for convenience of references and shall not affect its interpretation.
This Lease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Lease to be drafted. Each
covenant, agreement, obligation or other provision of this Lease on Tenant's
part to be performed, shall be deemed and construed as a separate and
independent covenant of Tenant, not dependent on any other provision of this
Lease. Whenever in this Lease the singular number is used, the same shall
include the plural, and the masculine gender shall include the feminine and
neuter genders, and, in each case, vice versa, as the context may require.
14.14. No Third Party Beneficiaries.
The rights in favor of Landlord and Tenant set forth in this Lease shall
be for the exclusive benefit of Landlord and Tenant, respectively, it being the
express intention of the parties that in no event shall such rights be
conferred upon or for the benefit of any third party.
14.15. Submission of Draft Lease.
The submission by Landlord of the lease in draft form shall be deemed
submitted solely for Tenant's consideration and not for acceptance and
execution. Such submission shall have no binding force or effect and shall
confer no rights nor impose any obligations, including brokerage obligations,
on either party unless and until both Landlord and Tenant shall have executed
the lease and duplicate originals thereof shall have been delivered to the
respective parties.
14.16. Counterparts.
This Lease may be executed in several counterparts, all of which
constitute one and the same instrument.
14.17. Relocation.
INTENTIONALLY DELETED.
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ARTICLE 15 - ADDITIONAL PROVISIONS
15.1. Initial Third Floor Expansion.
15.1.1. Landlord hereby leases to Tenant and Tenant hereby rents from
Landlord, in addition to the Premises described in Section 1.2 hereof (the
"INITIAL PREMISES"), the portion of the Building consisting of an area deemed
to contain Two Thousand Eight Hundred Three (2,803) square feet of rentable
floor area, located on the third (3rd) floor of the Building and designated as
the "Expansion Space" on Exhibit F attached hereto and made a part hereof (the
"EXPANSION SPACE"), subject to and in accordance with the terms and conditions
of this Section 15.1.
15.1.2. Landlord, subject to, and upon and in accordance with the
following provisions of this Section 15.1.2. shall perform the work described
in subparagraph (a) below (the "EXPANSION SPACE WORK") in the Expansion Space,
as follows:
(a) Tenant, not laster than February 15, 2001, shall submit to
Landlord, for Landlord's approval, a complete and coordinated set of working,
finished and detailed construction drawings and specifications for the
Expansion Space Work (such drawings and specifications are herein called the
"EXPANSION SPACE WORK PLANS"), which Expansion Space Work Plans shall (i)
comply with all Legal Requirements and Building standards, (ii) be sealed by a
licensed architect and suitable for the issuance of any required building
permit. Landlord's approval of the Expansion Space Work Plans shall not be
unreasonably withheld, unless the work described thereon either (x) affects the
exterior (including the appearance) of the Building or any other portion of the
Building outside of the Expansion space, (y) is structural or affects the
structural elements of the Building, or (z) affects the usage or the proper
functioning of the Building Systems or any part thereof.
(b) Landlord makes no representations or warranties regarding the
compliance of the Expansion Space with the ADA. With respect to the condition
of the Expansion Space prior to the performance of the Expansion Space Work and
any alterations or improvements that Tenant makes to the interior of the
Expansion Space (or which are made on Tenant's behalf), regardless of whether
Tenant has obtained Landlord's consent to such alterations or improvements,
Tenant shall be fully responsible for complying with and paying any costs
associated with any and all requirements of the ADA. In addition, if any
alterations are required to be made to the Expansion Space due to changes in or
regulations under the ADA or judicial interpretations of the requirements of
the ADA coming into existence following the Expansion Space Commencement Date
(as hereinafter defined), or due to changes in Tenant's use of the Expansion
Space or in the nature of Tenant's conduct of its business in the Expansion
Space (including but not limited to any changes in use or business conduct
arising out of a sublease or assignment, or resulting in the Expansion Space
being deemed a "PLACE OF PUBLIC ACCOMMODATION" under the ADA), Tenant shall be
fully responsible for complying with and paying any costs associated with any
and all requirements of the ADA arising in connection therewith.
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(c) Landlord, promptly after its approval of the Expansion Space
Plans and the vacation of the Expansion Space by the existing tenant thereof,
shall apply to the appropriate Governmental Authorities for any building
permit(s) which shall be required in connection with Landlord's performance of
the Expansion Space Work.
(d) Landlord, promptly after (i) the date on which any required
building permit(s) are issued, or if no building permit is required, the date on
which Landlord shall have approved the Expansion Space Plans, and (ii) the date
on which the existing tenant of the Expansion Space shall have vacated the
Expansion Space, shall commence to perform the Expansion Space Work, and
thereafter diligently prosecute the Expansion Space Work to completion. Landlord
shall solicit competitive bids from at least three (3) subcontractors designated
by Landlord (subject to Tenant's approval, which shall not be unreasonably
withheld or delayed) for each trade required in connection with the Expansion
Space Work, and work for each trade shall, unless otherwise instructed by
Tenant, be awarded to the subcontractor for such trade submitting the lowest bid
in accordance with the applicable bid documents. Landlord shall perform the
Expansion Space Work in accordance with the approved Expansion Space Work Plans,
in compliance with all Legal Requirements, and otherwise in a good and
workmanlike manner. The Expansion Space Work shall include connection of the
Expansion Space to Tenant's Submeter.
(e) Landlord shall arrange for any inspections, and shall apply
for and obtain any certificate of occupancy, required by any Governmental
Authority in connection with the Expansion Space Work.
(f) Tenant, in respect of the Expansion Space Work, shall pay
Landlord an amount equal to the excess (if any) of (i) the Landlord's ES Cost
(as hereinafter defined), over (ii) the Tenant's ES Allowance (as hereinafter
defined); which amount shall be paid by Tenant, from time to time, in one or
more installments, within ten (10) days after any written request therefor from
Landlord. Landlord shall be entitled to require, prior to commencing the
Expansion Space Work, payment by Tenant to Landlord of Landlord's estimate of
such excess amount. The "LANDLORD'S ES COST" shall mean an amount equal to 113%
of the aggregate of all construction and ancillary costs incurred by Landlord in
the performance of, or otherwise in connection with, the Expansion Space Work
(which costs shall include without limitation any (i) any profit or override
payable by Landlord to the contractors, including the general contractor,
prosecuting the Expansion Space Work, and (ii) architectural, engineering,
design, permitting and/or government inspection costs incurred by Landlord). The
"TENANT'S ES ALLOWANCE" shall mean an amount equal to THIRTY-THREE THOUSAND SIX
HUNDRED THIRTY-SIX and 00/100 DOLLARS ($33,636.00) (i.e., $12.00 per rentable
square foot of the Expansion Space).
(g) The Expansion Space Work shall be deemed to be "SUBSTANTIALLY
COMPLETED" even though punchlist items are not then completed. Tenant, within
fifteen (15) days after the Expansion Space Commencement Date, shall prepare,
and deliver to Landlord, a list (herein called the "EXPANSION SPACE PUNCHLIST")
of all punchlist items with respect to the Expansion Space Work; any punchlist
items (other than latent defects) not timely and properly included on the
Expansion
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Space Punchlist shall be deemed waived by Tenant. Landlord shall, at its
expense, complete or correct all punchlist items timely and properly included on
the Expansion Space Punchlist, within thirty (30) days of the delivery of the
Expansion Space Punchlist to Landlord (or if such completion or correction work
cannot with due diligence be completed or corrected within thirty (30) days,
then within a reasonable period of time thereafter, provided that Landlord is
prosecuting such work diligently); provided, however, that in no event shall
Landlord be obligated to repair any damage to any of the Expansion Space Work
that was caused by Tenant or any Tenant Parties.
(h) Tenant's occupancy of the Expansion Space for the conduct of
its usual business shall be deemed Tenant's acceptance of the Expansion Space
and Tenant's agreement that Landlord has substantially completed the Expansion
Space Work and that the Expansion Space Commencement Date has occurred.
(i) Tenant shall be permitted access to the Expansion Space, upon
reasonable prior notice to Landlord and subject to Landlord's scheduling
requirements to avoid interruption of or interference with the Expansion Space
Work, following Landlord's commencement of the Expansion Space Work but prior to
the Commencement Date solely for the purpose of allowing Tenant to install
furniture, equipment and cabling for its equipment and telephones. Such early
access shall be at Tenant's sole risk. Such early access shall be granted upon
the condition that Tenant's employees, agents or servants shall not interfere
with Landlord's performance of the Expansion Space Work. Such early access shall
be subject to all of the terms, covenants, provisions and conditions of this
Lease (except for the obligation to pay Rent). Landlord shall not be liable in
any way for any injury, loss or damage occurring as a result of Tenant's early
access to the Expansion Space. Landlord shall have the right to impose such
additional reasonable conditions on Tenant's early access to the Expansion Space
as Landlord, in its sole discretion, deems appropriate.
15.1.3. The "EXPANSION SPACE COMMENCEMENT DATE", subject to the following
provisions of this Section 15.1.3, shall be the earliest of (a) the date that
Tenant shall have commenced occupancy of the Premises for the conduct of
Tenant's business therein or (b) the later to occur of (i) May 1, 2001, or (ii)
the date that Landlord shall have (1) substantially completed the Expansion
Space Work, and (2) if required for the lawful occupancy of the Expansion
Space, obtained a certificate of occupancy permitting the Expansion Space to be
used for office purposes. Notwithstanding the foregoing, (i) if Landlord
shall be unable to deliver possession of the Premises to Tenant on the date
that the Expansion Space Commencement Date otherwise would have occurred
pursuant to this Section 15.1.3, then the "Expansion Space Commencement Date"
shall be the date upon which Landlord is able to so deliver possession (it
being agreed that Landlord shall not be subject to any liability by reason of
any inability to give possession nor shall the validity of this Lease be
impaired thereby, nor shall the Term be extended thereby), and (ii) if Landlord
is delayed in causing the Commencement Date to occur by reason of Tenant
Delays, then, in addition to any other rights or remedies that Landlord may
have on account thereof, at Landlord's option, (x) the "Expansion Space
Commencement Date" shall be deemed to be the date Landlord would have caused
the Expansion Space Commencement Date to occur absent such Tenant Delays, (y)
Tenant shall pay all costs and expenses incurred by Landlord that result from
any Tenant Delays, including, without
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limitation, any costs and expenses attributable to increases in the cost of
labor and materials, and/or (z) such Tenant Delays shall be deemed a default
under this Lease. Tenant hereby acknowledges that the Expansion Space
Commencement Date is indeterminate and shall occur only as provided in this
Section 15.1.3. Tenant, at anytime after the occurrence of the Expansion Space
Commencement Date, shall, upon the demand of Landlord, execute, acknowledge and
deliver to Landlord an instrument in form reasonably satisfactory to Landlord
confirming the Expansion Space Commencement Date; but Tenant's failure to
execute, acknowledge and deliver such instrument shall not affect the occurrence
of the Expansion Space Commencement Date or otherwise affect the validity of
this Lease.
15.1.4. On the Expansion Space Commencement Date, the Expansion Space
shall be added to the Initial Premises and the "Premises" under this Lease
thereupon and thereafter shall include the Initial Premises and the Expansion
Space for all purposes under this Lease, and the Premises shall thereupon be
deemed to contain 16,188 rentable square feet, and all provisions of the Lease
relating to the Premises (except for Landlord's obligation to perform the
Initial Tenant Work) shall thereafter be applicable to the Initial Premises and
the Expansion Space.
15.1.5. Effective as of the Expansion Space Commitment Date, Tenant shall
pay to Landlord, as Fixed Rent for the Premises, for all periods from and after
the Expansion Space Commencement Date, the following amounts for the following
periods:
(a) THREE HUNDRED EIGHTY THOUSAND FOUR HUNDRED EIGHTEEN and
00/100 DOLLARS ($380,418.00), per annum, for the period from the Expansion
Space Commencement Date to and including the day immediately preceding the
second (2nd) anniversary of the Commencement Date; and
(b) THREE HUNDRED EIGHTY-EIGHT THOUSAND FIVE HUNDRED TWELVE and
00/100 DOLLARS ($388,512.00), per annum, for the period from the second
(2nd) anniversary of the Commencement Date to and including the Expiration
Date.
If the Expansion Space Commencement Date occurs on a day other than the first
day of a calendar month, the Fixed Rent payable for the calendar month in which
the Expansion Space Commencement Date occurs shall be prorated accordingly.
15.1.6. Effective as of the Expansion Space Commencement Date, Tenant's
Share for the Premises (i.e., the Initial Premises and the Expansion Space) for
all periods from and after the Expansion Space Commencement Date shall equal
9.4116%.
15.1.7. Effective as of the Expansion Space Commencement Date, the
maximum number of parking spaces Tenant shall be entitled to use in the General
Parking Areas pursuant to Section 3.4.3 hereof shall be increased to fifty-nine
(59).
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15.2. Renewal Options.
15.2.1. (a) Tenant, provided this Lease shall then be in full force
and effect, shall have the option (herein called the "FIRST RENEWAL OPTION") to
extend the Term for an additional five (5) year period (the "FIRST RENEWAL
TERM"), which First Renewal Term shall commence on the date immediately
succeeding the Expiration Date, and end on the fifth (5th) anniversary of the
Expiration Date (such anniversary being herein called the "FIRST RENEWAL
EXPIRATION DATE"). The First Renewal Option shall be exercisable only by Tenant
giving Landlord written notice of such exercise (herein called a "RENEWAL
NOTICE"), which notice shall be received by Landlord not later than the date
that is nine (9) months prior, nor earlier than the date that is twelve (12)
months prior, to the Expiration Date (time being of the essence). Landlord, at
its option, may render the Renewal Notice null and void upon notice thereof to
Tenant if, at the time that Landlord receives the same, Tenant shall be in
default under this Lease beyond any applicable notice and/or cure period.
(b) Tenant, provided this Lease shall then be in full force
and effect, and Tenant shall have previously exercised the First Renewal Option,
shall have the option (herein called the "SECOND RENEWAL OPTION"; the First
Renewal Option and the Second Renewal Option are sometimes hereinafter referred
to individually as a "RENEWAL OPTION" and together as the "RENEWAL OPTIONS") to
extend the Term for an additional five (5) year period (the "SECOND RENEWAL
TERM"; the First Renewal Term and the Second Renewal Term are sometimes
hereinafter referred to individually as a "RENEWAL TERM" and together as the
"RENEWAL TERM"), which Renewal Term shall commence on the date immediately
succeeding the First Renewal Expiration Date, and end on the fifth (5th)
anniversary of the First Renewal Expiration Date (such anniversary being herein
called the "SECOND RENEWAL EXPIRATION DATE"; the First Renewal Expiration Date
and the Second Renewal Expiration are sometimes hereinafter referred to
individually as a "RENEWAL EXPIRATION DATE" and together as the "RENEWAL
EXPIRATION DATES"). The Second Renewal Option shall be exercisable only by
Tenant giving Landlord a written Renewal Notice, which Renewal Notice shall be
received by Landlord not later than the date that is nine (9) months prior, nor
earlier than the date that is twelve (12) months prior, to the First Renewal
Expiration Date (time being of the essence). Landlord, at its option, may render
the Renewal Notice null and void upon notice thereof to Tenant if, at the time
that Landlord receives the same, Tenant shall be in default under this Lease
beyond any applicable notice and/or cure period.
15.2.2. If Tenant exercises an applicable Renewal Option in accordance
with the terms set forth above, then this Lease shall thereupon be extended for
the applicable Renewal Term upon all the same terms, covenants and conditions as
are contained in this lease and applicable prior to the applicable Renewal Term,
except that for, and during, the applicable Renewal Term: (1) the Fixed Rent
shall be the Renewal Term Fixed Rent (as hereinafter defined) for such Renewal
Term, as determined as hereinafter set forth; (2) the Expiration Date shall be
the Renewal Expiration Date for such Renewal Term; and (3) any provisions of
this Lease setting forth (i) workletter or other work obligations of Landlord,
(ii) work allowances or contributions to be made by Landlord or (iii) abatements
of Rent, shall not apply.
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15.2.3. (a) As used herein, the term, "RENEWAL TERM FIXED RENT" for the
applicable Renewal Term shall mean a fixed rent payable at a per annum rate
equal to the product of (i) the Renewal Fair Market Fixed Rent for such Renewal
Term, multiplied by (ii) the number of rentable square feet in the Premises,
multiplied by (iii) Ninety-Five Percent (95%).
(b) As used herein, the term "RENEWAL FAIR MARKET FIXED RENT"
for the applicable Renewal Term shall mean the fixed rent, per rentable square
foot per annum, that a willing tenant would pay and a willing landlord would
accept for a hypothetical renewal lease of the Premises having a 5-year term
(commencing with the commencement of the Renewal Term in question), and
providing for fixed annual rent on a level payment basis throughout such term
(i.e., no step-ups in fixed rent), assuming: (i) that the Premises were being
demised by such hypothetical renewal lease in their "as is" condition as of the
date that Tenant exercised the Renewal Option in question; (ii) that the terms
of such hypothetical renewal lease would (x) include a work allowance or
contribution to be paid by such willing landlord to such willing tenant in an
amount equal to the amount, if any, that Landlord in its Initial Renewal Rent
Notice (as hereinafter defined) has indicated it is willing to provide to
Tenant (but Landlord shall not be obligated to offer to provide any such work
allowance or contribution), (y) include a free rent period during which such
willing tenant would not pay any fixed rent having a duration equal to the free
rent period, if any, that Landlord in its Initial Renewal Rent Notice has
indicated it is willing to provide to Tenant (but Landlord shall not be
obligated to offer to provide any such free rent period), and (z) otherwise be
the same terms and conditions as are provided for in this Lease for such
Renewal Term; and (iii) that such willing landlord would be paying a brokerage
commission in respect of such hypothetical renewal lease equal to the brokerage
commission, if any, payable by Landlord to Broker or any other broker to whom a
commission may be owing in connection with the Renewal Term in question.
(c) During the thirty (30) day period (the "RENEWAL INITIAL
PERIOD") following Tenant's exercise of the applicable Renewal Option (i.e.,
after Landlord's receipt of the applicable Renewal Notice), Landlord and Tenant
shall attempt to agree upon the Renewal Term Fixed Rent for such Renewal Term
(including any concessions to be provided in connection therewith), and prior
to the expiration of such Renewal Initial Period Landlord shall give Tenant
written notice (the "INITIAL RENEWAL RENT NOTICE") containing (i) Landlord's
determination of the Renewal Term Fixed Rent for the Renewal Term in question,
including Landlord determination of the Renewal Fair Market Fixed Rent for such
Renewal Term ("LANDLORD'S RENEWAL RENT DETERMINATION"), (ii) the amount of any
work allowance or contribution that Landlord is willing to provide to Tenant
(but Landlord shall not be obligated to offer to provide any such work
allowance or contribution), and (iii) the duration of any free rent period that
Landlord is willing to provide to Tenant (but Landlord shall not be obligated
to offer to provide any such free rent period). If Landlord and Tenant fail to
agree upon the Renewal Term Fixed Rent for the Renewal Term in question within
the Renewal Initial Period, then Tenant may, by written notice (a "RENEWAL
APPRAISAL NOTICE") received by Landlord before the expiration of fifteen (15)
days after the expiration of the Renewal Initial Period, elect to have the
Renewal Term Fixed Rent for the Renewal Term in question determined by
appraisal in accordance with the provisions set forth on Exhibit G annexed
hereto. If Landlord does not receive a Renewal Appraisal Notice from Tenant
before the
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expiration of such fifteen (15) day period, Tenant and Landlord shall be
conclusively deemed to have agreed to Landlord's Renewal Rent Determination, and
the Renewal Term Fixed Rent for the Renewal Term in question shall equal
Landlord's Renewal Rent Determination.
(d) If, as of the first day of the applicable Renewal Term,
the Renewal Term Fixed Rent for such Renewal Term shall not have been finally
determined, then (i) for the period from the commencement of such Renewal Term
until the date that the Renewal Term Fixed Rent for such Renewal Term is finally
determined (herein called the "RENEWAL PRE-DETERMINATION PERIOD"), Tenant shall
make payments, on account of the Renewal Term Fixed Rent for such Renewal Term
(as and when Fixed Rent is payable under this Lease), in an amount equal to the
Fixed Rent in effect immediately prior to the commencement of such Renewal Term,
and (ii) if, upon the final determination of the Renewal Term Fixed Rent for
such Renewal Term, the payments made by Tenant on account of the Renewal Term
Fixed Rent for such Renewal Term during the Renewal Pre-Determination Period
were less than the Renewal Term Fixed Rent for such Renewal Term, then Tenant
shall pay to Landlord the amount of such deficiency, together with interest
thereon at the Base Rate, within twenty (20) days after demand therefor. Tenant
shall be provided the work allowance, if any, and free rent period, if any, set
forth in the applicable Initial Renewal Rent Notice. Any such free rent period
shall commence on the first (1st) day of the applicable Renewal Term. Any such
work allowance shall be paid to Tenant on account of Alterations performed by
Tenant in the Premises in accordance with this Lease during the applicable
Renewal Term, upon Tenant's delivery to Landlord of invoices for such
Alterations and proof of payment thereof and that no construction liens have
been filed in connection therewith.
15.2.4. Tenant shall, upon the request of Landlord, execute,
acknowledge and deliver to Landlord an instrument or instruments in form
reasonably satisfactory to Landlord confirming any terms and conditions of this
Lease applicable to any applicable Renewal Option or Renewal Term, including
without limitation whether or not a Renewal Option has been exercised and the
Renewal Term Fixed Rent for such Renewal Term, but any failure of Tenant to
execute, acknowledge and deliver such instrument(s) shall not affect the
validity of such Renewal Term or any of the provisions of this Section 15.2.
15.3. Expansion Rights.
With respect to any portion of the third (3rd) floor of the Building not
included in the Premises that is contiguous with the Premises, and that is now
or hereafter leased to a third party (other than the Expansion Space), in the
event any such area under lease thereafter becomes available for lease to a
party other than the existing tenant thereof, and no other tenant of the
Building having an option or preferential right with respect to such area which
was granted prior to the execution of this Lease by Landlord and Tenant
exercises such option or preferential right with respect to such area, Landlord
will notify Tenant of the availability of such area and the terms upon which
Landlord is willing to lease such area. In such event, Tenant may, if it so
desires, notify Landlord within fifteen (15) days after receipt of such notice
from Landlord, that Tenant desires to lease the area in question, whereupon
Landlord will enter into discussions with Tenant regarding the possibility of
Tenant so
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leasing such area. Landlord shall not be obligated by this provision to enter
into a lease with Tenant with respect to any such area or to negotiate with
Tenant with respect to the possible lease of any such area to the exclusion of
other potential tenants. The purpose of this provision is merely to assure
Tenant that Tenant will be made aware of the existence of newly available
portions of the third (3rd) floor of the Building contiguous with the Premises
that are now or hereafter leased to third parties when such space becomes
available.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease as
of the day and year first above written.
LANDLORD:
CIN EAGLE ROCK, L.L.C.,
a Delaware limited liability company
By: CIN Lincoln Independent Corp.,
as its Managing Member
By: /s/ JEFFREY C. CHAVEZ
---------------------------
Name: Jeffrey C. Chavez
Title: Vice President
TENANT:
ARIS CORPORATION,
a Washington corporation
By: /s/ KENDALL KUNZ
------------------------
Name: Kendall Kunz
Title: President & CEO
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STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
BE IT REMEMBERED, that on this 21 day of June, 2000, before me, the
subscriber, a Notary Public, of the State of Texas, personally appeared Jeffrey
C. Chavez, the Vice President of CIN LINCOLN INDEPENDENT CORP., the corporation
described in the within instrument, which corporation is the managing member of
CIN EAGLE ROCK, L.L.C., the limited liability company described in the within
instrument (herein called the "Company"); who I am satisfied is the person who
has signed the within instrument and he thereupon acknowledged that he signed
and delivered the said instrument on behalf of the Company, by authorization of
the board of directors of the aforesaid corporation, and that the within
instrument is the voluntary act and deed of the Company.
[SEAL
MISTY LEA EVANS
NOTARY PUBLIC (Notary) /s/ MISTY LEA EVANS
STATE OF TEXAS ---------------------------
COMM. EXPIRES 7-10-2002]
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
BE IT REMEMBERED, that on this 16th day of June, 2000, before me, the
subscriber, a Notary Public, of the State of Washington, personally appeared
Kendall Kunz, being [a][the] President and CEO of Aris Corporation, the
[corporation] described in the within instrument; who I am satisfied is the
person who has signed the within instrument; and he thereupon acknowledged that
he signed and delivered the said instrument on behalf of said [corporation], by
authorization of the board of directors of the aforesaid [corporation], and
that the within instrument is the voluntary act and deed of said corporation.
[SEAL
COLLEEN DE GRAFF
COMMISSION EXPIRES
JAN 5, 2004 (Notary) /s/ COLLEEN DE GRAFF
NOTARY PUBLIC ------------------------
STATE OF WASHINGTON]
60
<PAGE> 65
STATE OF TEXAS )
) ss.:
COUNTY OF DALLAS )
BE IT REMEMBERED, that on this 21 day of June, 2000, before me, the
subscriber, a Notary Public, of the State of Texas, personally appeared Jeffrey
C. Chavez, the Vice President of CIN LINCOLN INDEPENDENT CORP., the corporation
described in the within instrument, which corporation is the managing member of
CIN EAGLE ROCK, L.L.C., the limited liability company described in the within
instrument (herein called the "Company"); who I am satisfied is the person who
has signed the within instrument and he thereupon acknowledged that he signed
and delivered the said instrument on behalf of the Company, by authorization of
the board of directors of the aforesaid corporation, and that the within
instrument is the voluntary act and deed of the Company.
[SEAL
MISTY LEA EVANS
NOTARY PUBLIC (Notary) /s/ MISTY LEA EVANS
STATE OF TEXAS ---------------------------
COMM. EXPIRES 7-10-2002]
STATE OF WASHINGTON )
) ss.:
COUNTY OF KING )
BE IT REMEMBERED, that on this 16th day of June, 2000, before me, the
subscriber, a Notary Public, of the State of Washington, personally appeared
Kendall Kunz, being [a][the] President and CEO of Aris Corporation, the
[corporation] described in the within instrument; who I am satisfied is the
person who has signed the within instrument; and he thereupon acknowledged that
he signed and delivered the said instrument on behalf of said [corporation], by
authorization of the board of directors of the aforesaid [corporation], and
that the within instrument is the voluntary act and deed of said corporation.
[SEAL
COLLEEN DE GRAFF
COMMISSION EXPIRES
JAN 5, 2004 (Notary) /s/ COLLEEN DE GRAFF
NOTARY PUBLIC ------------------------
STATE OF WASHINGTON]
60
<PAGE> 66
EXHIBIT A
Legal Description of Land
Description of Lot 53, Block 1.01, situated in East Hanover Township,
Morris County, New Jersey.
BEGINNING at a point in the southwesterly right of way line of New Jersey
State Highway Route 280, said point being the common corner of Lots 53 and 54 in
Block 1.01 as shown on the East Hanover Tax Map, and from said beginning point
running:
(a) Southeasterly, along a curve to the left having a radius of
6150.00 feet, an arc length of 400.69 feet to a point; thence
(b) South 10 degrees 37 feet 21 inches East along the westerly
line of Lot 58 in Block 1.01, 337.00 feet to a point; thence
(c) South 13 degrees 22 feet 39 inches West along same, 627.17
feet to a point; thence
(d) South 65 degrees 26 feet 43 inches West along same, 197.92
feet to a point; thence
(e) North 48 degrees 08 feet 05 inches West along the northerly line
of Lot 58 in Block 1.01, 740.06 feet to a point; thence
(f) North 33 degrees 47 feet 19 inches East along the easterly line
of Lot 54 in Block 1.01, 1013.66 feet to the point and place of
BEGINNING.
Containing 664.083 Square Feet or 15.2453 acres, more or less.
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EXHIBIT B
Floor Plan of Premises
[FLOOR PLAN]
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EXHIBIT C
Building Rules and Regulations
1. Tenant shall not obstruct or permit its employees, agents, servants,
invitees or licensees to obstruct, in any way, the sidewalks, entry
passages, corridors, halls, stairways or elevators of the Building, or use
the same in any other way than as a means of passage to and from the
offices of Tenant; bring in, store, test or use any materials in the
Building which could cause a fire or an explosion or produce any fumes or
vapor; make or permit any improper noises in the Building; smoke in the
elevators; throw substances of any kind out of the windows or doors, or
down the passages of the Building, or in the halls or passageways; sit on
or place anything upon the window sills; or clean the windows.
2. Waterclosets and urinals shall not be used for any purpose other than those
for which they are constructed; and no sweepings, rubbish, ashes,
newspaper, paper towels or any other substances of any kind shall be
thrown into them. Waste and excessive or unusual use of electricity or
water is prohibited.
3. The windows, doors, partitions and lights that reflect or admit light into
the halls or other places of the Building shall not be obstructed. NO
SIGNS, ADVERTISEMENTS OR NOTICES SHALL BE INSCRIBED, PAINTED, AFFIXED OR
DISPLAYED IN, ON, UPON OR BEHIND ANY WINDOWS, expect as may be required by
law or agreed upon by the parties; and no sign, advertisement or notice
shall be inscribed, painted or affixed on any doors, partitions or other
part of the inside of the Building, without the prior written consent of
Landlord. If such consent be given by Landlord, any such sign,
advertisement, or notice shall be inscribed, painted or affixed by
Landlord, or a company approved by Landlord but the cost of the same shall
be charged to and be paid by Tenant, and Tenant agrees to pay the same
promptly, on demand. Landlord agrees that the Tenant shall be suitably
identified.
4. No contract of any kind with any supplier of towels, water, toilet
articles, waxing, rug shampooing, venetian blind washing, furniture
polishing, lamp servicing, cleaning of electrical fixtures, removal of
waste paper, rubbish or garbage, or other like service shall be entered by
Tenant, nor shall any vending machine of any kind be installed in the
Building except for Tenant's leased premises without the prior written
consent of Landlord.
5. When electric wiring of any kind is introduced, it must be connected as
directed by Landlord, and no stringing or cutting of wires will be allowed,
except with the prior written consent of Landlord, and shall be done only
by contractors approved by Landlord. The number and location of telephones,
telegraph instruments, electric appliances, call boxes, etc., shall be
approved by Landlord.
6. Landlord shall have the right to prescribe the weight, size and position of
all safes and other bulky or heavy equipment and all freight brought into
the Building by the Tenant; and also the
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times of moving the same in and out of the Building. All such moving must
be done under the supervision of the Landlord. Landlord will not be
responsible for loss or damage to any such equipment or freight from any
cause; but all damage done to the Building by moving or maintaining any
such equipment or freight shall be repaired at the expense of Tenant. All
safes shall stand on a base of such size as shall be designated by the
Landlord. The Landlord reserves the right to inspect all freight to be
brought into the Building and to exclude from the Building all freight
which violates any of these Rules and Regulations or the Lease of which
these Rules and Regulations are a part.
7. No machinery of any kind of articles of unusual weight or size will be
allowed in the Building, without the prior written consent of Landlord.
Business machines and mechanical equipment shall be placed and maintained
by Tenant, at Tenant's expense, in settings sufficient in Landlord's
judgment to absorb and prevent vibration, noise and annoyance to other
tenants.
8. No additional look or lock shall be placed by Tenant on any door in the
Building, without prior written consent of Landlord. Twelve (12) keys will
be furnished to Tenant by Landlord; any additional keys requested by Tenant
shall be paid by Tenant. Tenant, its agents and employees, shall not change
any locks. All keys to doors and washrooms shall be returned to Landlord on
or before the Termination Date, and, in the event of loss of any keys
furnished, Tenant shall pay Landlord the cost thereof. Tenant may install
its own card-key security system, which shall be integrated with the
Building card access system.
9. Tenant shall not employ any person or persons for the purpose of cleaning
the leased premises, without the prior written consent of Landlord.
Landlord shall not be responsible to Tenant for any loss of property from
the leased premises, however occurring; or for any damage done to the
effects of Tenant by such janitors or any of its employees, or by any other
person or any other cause.
10. No bicycles, vehicles or animals of any kind shall be brought into or kept
in or about the leased premises.
11. The requirements of Tenant will be attended to only upon the application
at the office of the Landlord. Employees of Landlord shall not perform any
work for Tenant or do anything outside of their regular duties, unless
under special instructions from Landlord.
12. The leased premises shall not be used for lodging or sleeping purposes, and
cooking therein is prohibited except for microwaves.
13. Tenant shall not conduct, or permit any other person to conduct any auction
on the leased premises; manufacture or store good, wares or merchandise
upon the leased premises, without the prior written approval of Landlord,
except for the storage of unusual supplies and inventory to be used by
Tenant in the conduct of its business; permit the leased premises to be
used for gambling, make any unusual noises in the Building; permit to be
played any
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musical instrument in, disturb or annoy other tenants; or permit any unusual
odors to be produced upon the leased premises.
14. Between 6:00 p.m. and 8:00 a.m. on weekdays, before 8:00 a.m., and after
1:00 p.m. on Saturdays, and all day Sunday and Building Holidays, the
Building is closed. Landlord reserves the right to exclude from the
Building during such periods all persons who do not present a pass to the
Building signed by Tenant. Each Tenant shall be responsible for all persons
to whom such passes are issued and shall be liable to Landlord for all acts
of such persons.
15. No awnings or other projections shall be attached to the outside walls of
the Building. No curtains, blinds, shades or screens shall be attached or
hung in, or used in connection with any window or door of the leased
premises without the prior written consent of Landlord. Such curtains,
blinds and shades must be of a quality, type, design and color and attached
in a manner approved by Landlord.
16. Canvassing, soliciting and peddling in the Building are prohibited, and
Tenant shall cooperate to prevent the same.
17. There shall not be used in the leased premises or in the Building, either
by Tenant or by others, in the delivery or receipt of merchandise, any hand
trucks except those equipped with rubber tire and side guards.
18. Each Tenant, before closing and leaving the leased premises, shall ensure
that all lights are off and all entrance doors locked.
19. Landlord shall have the right to prohibit any advertising by Tenant which
in Landlord's opinion tends to impair the reputation of the Building or its
desirability as a building for offices, and upon written notice from
Landlord, Tenant shall refrain from or discontinue such advertising.
20. Landlord hereby reserves to itself any and all rights not granted to Tenant
hereunder, including, but not limited to, the following rights which are
reserved to Landlord for its purposes in operating the Building.
(a) the exclusive right to the use of the name of the Building for all
purposes, except that Tenant may use the name as its business address
and for no other purpose;
(b) subject to the provisions of Section 6.1.2 of the Lease, the right to
change the name or address of the Building, without incurring any
liability to Tenant for so doing;
(c) the right to install and maintain a sign or signs on the exterior of
the Building;
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(d) the exclusive right to use or dispose of the use of the roof of the
Building;
(e) the right to limit the space on the directory of the Building to be
allotted to Tenant;
(f) the right to grant to anyone the right to conduct any particular
business or undertaking in the Building.
21. With respect to the Parking Areas, Landlord may issue parking permits,
install a gate system, and impose any other system as Landlord deems
necessary for the use thereof. Tenant agrees that it and its employees and
invitees shall not park their automobiles in parking spaces allocated to
others by Landlord and shall comply with such rules and regulations for
use of the parking area as Landlord may from time to time prescribe.
Landlord shall not be responsible for any damage to or theft of any
vehicle in the parking area and shall not be required to keep parking
spaces clear of unauthorized vehicles or to otherwise supervise the use of
the parking area. Landlord reserves the right to change any existing or
future parking area, roads or driveways, and may make any repairs or
alterations it deems necessary to the parking area, roads and driveways
and to temporarily revoke or modify the parking rights granted to Tenant
hereunder.
22. Tenant shall not use the leased premises or permit the leased premises to
be used for the sale of food or beverages other than its vending machines.
Except as may be specifically provided for in the Lease, other than
preparation of food (including use of microwave ovens) and beverages within
the Premises for on-site consumption by Tenant's employees, no cooking
shall be done or permitted to be done by Tenant in the Building or the
Premises, including the preparation of coffee, tea, or other hot beverages.
Should Landlord specifically permit any Tenant, within such Tenant's
Premises, to prepare hot coffee, tea or other beverages, then such activity
shall be performed only in an area of such Tenant's demised premises,
specifically designed for such use, including amongst others a hard floor
surface, such as composition or ceramic tile, and the maintenance and
cleaning of such area shall be the responsibility of such Tenant. Any
damage to the Building or the Premises on account of such use shall be the
responsibility of Tenant.
23. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord without the written approval of Landlord which
shall not be unreasonably withheld.
24. Tenant shall cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air-conditioning and to comply
with any governmental energy-saving rules, laws, or regulations, and shall
refrain from attempting to adjust controls other than room thermostats
installed for Tenant's use. Tenant shall keep corridor doors closed, and
shall close window coverings at the end of each business day.
25. Tenant shall comply with all safety fire protection and excavation
procedures and regulations established by Landlord or any governmental
agency.
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26. No tenant use or occupy its premises or the Building, or suffer or permit
anyone to use or occupy its premises, in a manner which impairs the proper
and economic maintenance, operation and repair of the Building and/or its
equipment, facilities or systems, (b) constitutes a nuisance, public or
private, (c) makes unobtainable from reputable insurance companies
authorized to do business in the State of New Jersey all risk property
insurance, or liability, elevator, boiler or other insurance at standard
rates, (d) increases the premiums or rates under any insurance policy
maintained by Landlord for the Building, or (e) discharges objectionable
fumes, vapors or odors into the Building's flues or vents or otherwise,
except to the extent such fumes, vapors or odors are discharged into flues
or vents designed for such purposes and which Tenant, pursuant to the terms
of this lease, is permitted to use.
27. No tenant shall use, or suffer or permit anyone to use, its premises or any
part thereof, by or for (i) an agency, department or bureau of the United
States Government, (ii) any state or municipality within the United States
or any foreign government, or any political subdivision of any of them,
(iii) an employment or travel agency (other than an executive search firm
and other than an employment or travel agency primarily serving Tenant's
employees), (iv) any charitable or religious organization or union, (v) a
school or classroom, (vi) medical or psychiatric offices, (vii) conduct of
an auction (other than in the ordinary course of the tenant's business),
(viii) gambling activities, (ix) the conduct of obscene, pornographic or
similarly disreputable activities, (x) a restaurant and/or bar and/or the
sale of confectionery and/or soda and/or beverages and/or sandwiches and/or
ice cream and/or baked goods, (xi) the business of photographic
reproductions and/or offset printing (except that Tenant may use portions
of the Premises for photographic reproductions and/or offset printing in
connection with, either directly or indirectly, its own business and/or
activities), or (xii) retail use.
28. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of premises in the Building. In the
event of conflict between the provisions contained in this Lease and these
Rules and Regulations the provisions of this Lease shall prevail.
29. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein Tenant agrees to abide by all such Rules
and Regulations hereinabove stated and any additional Rules and Regulations
which are adopted.
30. Tenant shall be responsible for the observance of all the foregoing rules
by Tenant's employees, agents, clients, customers, invitees and guests.
31. A no smoking policy is in effect in all Public Areas of the Building.
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EXHIBIT D
Cleaning Specifications
I. TENANT AREA
A. Daily Cleaning:
(a) Empty and clean waste baskets and remove contents to disposal
area.
(b) Empty and clean all ash trays.
(c) Vacuum clean all rugs and carpeted areas.
(d) Dust furniture, files, fixtures, and all low reach areas.
(e) Polish all glass furniture tops.
(f) Clean all water fountains.
(g) Sweep all private stairways nightly, vacuumed if carpeted.
(h) Damp mop to remove spillage or spots on hard surface floors.
(i) Dust all telephones as necessary.
(j) Clean doors, door knobs, light switches and other door areas
of frequent use.
(k) Dust all office partitions.
(l) Dust window ledges.
B. Wash Rooms (Daily):
(a) Sweep and wash all lavatory flooring, machine scrub where
necessary.
(b) Wash and polish all mirrors, powder shelves, all metal and
porcelain work.
(c) Wash and disinfect both sides of all toilet seats.
(d) Wash and disinfect all basins, bowls and urinals.
(e) Empty and clean all paper towel and sanitary disposal
receptacles.
(f) Fill toilet tissue, soap dispensers, and paper towel
dispensers.
(g) Clean flushometers and other metal work as required.
(h) Wash all wall partitions, tile walls, and enamel surfaces from
trim to floor, as required.
(i) Vacuum all louvers, ventilating grilles and dust light
fixtures as required.
C. Glass:
(a) Clean glass entrance doors and adjacent glass panels nightly.
(b) Clean partition glass and interior glass doors monthly.
(c) Clean acrylic in accordance with Tenant instructions.
D. High Dusting (Four (4) Months):
(a) Dust all air conditioning diffusers.
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(b) Dust the exterior surfaces of lighting fixtures.
(c) Dust venetian blinds.
II. ENTRANCE LOBBY AND PUBLIC AREAS
(a) Sweep and wash lobby and entrance vestibule floors nightly.
(b) Machine scrub floors as necessary, not less than four (4) times
per year.
(c) Wax, buff, and apply sealer monthly.
(d) Clean sweep public elevator, lobby and corridor flooring nightly.
(e) Wash stone, ceramic tile, marble or terrazzo flooring once per
week.
(f) Carpeting shall be vacuumed nightly.
(g) Wipe down all metal surfaces in the lobby, exterior of building
entrance, and polish as required (once a week minimum).
(h) Dust all lobby and public corridor walls nightly and wash as
required.
(i) High dust and wash all electrical and air conditioning fixtures
at least once per month in elevator lobbies, corridors, and
entrance lobby.
(j) Dust mail depository nightly.
(k) Telephone booths shall be swept daily and the glass cleaned
nightly.
(l) Clean cigarette urns and screen sand on a daily basis.
(m) Clean entrances and lobby doors to remove dirt and finger marks.
(n) Wash all rubber mats and clean wool or nylon runners daily.
(o) Clean and polish marble walls once per week.
III. ELEVATORS
(a) Clean saddles, doors, and frames of elevator nightly.
(b) Clean saddles and frames on floors above lobby once per week and
vacuum dirt from door tacks nightly.
(c) Clean inside surfaces of elevator cabs nightly.
(d) Clean elevator pits weekly or more frequently as necessary.
(e) Vacuum carpets in elevators nightly, and provide regular carpet
care which will include spot cleaning nightly and shampooing as
needed.
IV. STAIRWELLS
(a) Sweep all stairways nightly.
(b) Spot mop stairways nightly.
(c) All stairways will be mopped weekly.
(d) Remove and gum or other foreign debris nightly.
(e) Dust all handrails nightly.
(f) Remove all fingerprints from walls on a nightly basis.
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V. CARPETS
(a) Spot clean carpets, nightly or as needed.
(b) Carpets may be shampooed upon request at additional cost.
VI. WINDOWS
Window cleaning will be done two or three times per year as directed,
inside and outside surfaces of glass.
VII. PARKING AREAS
Power sweep parking field and remove debris from site.
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EXHIBIT E
Alteration Rules and Regulations
A. General:
1. Tenant will make no alterations, decorations, installations,
repairs, additions, improvements or replacements (which are hereinafter called
"Alterations" and which are the Alterations referred to in the Lease) in, to or
about the Premises without the Landlord's prior written consent, and then only
by contractors or mechanics approved by Landlord.
2. Tenant shall, prior to the commencement of any work, submit for
Landlord's written approval, a complete plan of the Premises, or of the floor
on which the Alterations are to occur. Drawings are to be complete with full
details and specifications for all of the Alterations.
3. The proposed Alterations must comply with the Building Code of the
Township of East Hanover, County of Morris, State of New Jersey and any other
agencies having jurisdiction.
4. No work shall be permitted to commence without the Landlord being
furnished with a valid permit from the Department of Buildings and/or other
agencies having jurisdiction.
5. All demolition, removals, or other categories of work that may
inconvenience other tenants or disturb Building operations, must be scheduled
and performed before or after normal working hours and Tenant shall provide the
Landlord and the Building Manager with at least 24 hours' notice prior to
proceeding with such work.
6. All inquiries, submissions, approvals and all other matters shall
be processed through the Landlord and the Building Manager.
7. Additional and differing provisions in the Lease, if any, will be
applicable and will take precedence.
B. Procedures for Approval:
1. Tenant shall submit to the Landlord and the Building Manager a
request to perform the work. The request shall include the following enclosures:
(i) A list of Tenant's proposed contractors and/or subcontractors
for Landlord's approval.
(ii) Four complete sets of plans and specifications properly
stamped by a registered architect and/or professional engineer.
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(iii) A properly executed application form or Alteration form as may
be required by the Township of East Hanover and/or other agencies having
jurisdiction.
(iv) Four executed copies of the Insurance Requirements agreement in
the form attached to these Rules and Regulations from Tenant's contractor and
from the contractor's subcontractors.
(v) Contractor's and subcontractor's insurance certificates
including a "hold harmless" in accordance with the Insurance Requirements
agreement.
2. If Alterations are generally acceptable and otherwise permitted by the
Lease, Landlord will return the following to Tenant:
(i) Plans approved or returned with comments (such approval or
comments shall not constitute a waiver of Department of Buildings approval or
approval of other jurisdictional agencies).
(ii) Signed application forms referred to in B.(iii) above, providing
proper submissions have been made.
(iii) Two fully executed copies of the Insurance Requirements
agreement.
(iv) Covering transmittal letter.
3. Tenant shall obtain Department of Buildings approval of plans and a
permit from the Department of Buildings and/or other agencies having
jurisdiction. Tenant shall be responsible for keeping current all permits.
C. REQUIREMENTS AND PROCEDURES PRIOR TO COMMENCEMENT OF WORK:
1. At least 7 days prior to the commencement of any Alteration work,
Tenant shall submit copies of all approved plans and permits to Landlord and
shall post the original permit on the Premises.
2. All work shall be subject to inspection of Landlord's representatives.
Tenant covenants to pay as Additional Charges Landlord's reasonable charges for
such inspection. Such inspection shall be solely for the benefit of Landlord,
and without any obligation or liability whatsoever to Tenant or Tenant's
contractors or subcontractors.
3. Landlord or Landlord's representative shall be empowered, without any
liability to Tenant, its contractors and/or subcontractors, to issue orders of
stop work, and/or bar access of the Premises to any contractor and/or
subcontractor, whose work is deemed in the opinion of Landlord and/or Landlord's
representative, to be not in accordance with the approved plans and
specifications, or to be otherwise detrimental to the Building.
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4. When necessary, in Landlord's sole judgment, Landlord will require
engineering and shop drawings, which drawings must be approved by Landlord
before work commences on such affected item. All such drawings are to be
prepared by Tenant and reviewed by Landlord at Tenant's cost and expense. All
approvals shall be obtained by Tenant.
5. All structural and floor loading requirements shall be subject to
the prior approval of Landlord's structural engineer at Tenant's cost and
expense.
6. All mechanical (HVAC, plumbing and sprinkler) and electrical
requirements shall be subject to the approval of Landlord's mechanical and
electrical engineers at Tenant's cost and expense.
7. All demolition shall be supervised by Landlord's representative at
Tenant's expense.
8. Elevator service for construction work shall be charged to Tenant at
standard Building rates. Prior arrangements for elevator use shall be made with
Building Manager by Tenant. No material or equipment shall be carried under or
on top of elevators. If an operating engineer is required by any union
regulations, such engineer shall be paid for by Tenant.
9. If shutdown of risers and mains for electrical, HVAC, sprinkler and
plumbing work is required, such work shall be supervised by Landlord's
representative at Tenant's expense. No work will be performed in Building
mechanical equipment rooms without Landlord's approval and under Landlord's
supervision at Tenant's expense.
10. Tenant's contractor shall:
(i) have a Superintendent or Foreman on the Premises at all times;
(ii) police the job at all times, continually keeping the Premises
orderly;
(iii) maintain cleanliness and protection of all areas, including
elevators and lobbies;
(iv) protect all mechanical equipment and thoroughly clean them at
the completion of work;
(v) block off supply and return grills, diffusers and ducts to
keep dust from entering into the Building air conditioning system; and
(vi) avoid the disturbance of other tenants.
11. If Tenant's contractor is negligent in any of its responsibilities,
Tenant shall be charged for the corrective work done by Building porters and
other personnel.
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12. All equipment and installations must be equal to the Standards of the
Building. Any deviation from Building Standards will be permitted only if
indicated or specified on the plans and specifications and approved by
Landlord.
13. A properly executed air balancing report signed by a professional
engineer shall be submitted to Landlord upon the completion of all HVAC work.
14. Upon completion of the Alterations, Tenant shall submit to Landlord
properly executed documents indicating total compliance and final approval by
the Department of Buildings of the work, and/or other agencies having
jurisdiction.
15. Tenant shall submit to Landlord a final "as-built" set of drawings
showing all items of the Alterations in full detail.
D. Special Requirements Regarding Fire Safety System:
1. Tenant acknowledges being advised that the Building has an active Fire
Safety System. Tenant shall notify its contractors and subcontractors, as well
as all persons and entities who shall perform or supervise any alteration or
demolition within the Premises, of such facts.
2. Demolition by Tenant of all or any portion of the Premises shall be
carried out in such manner as to protect equipment and wiring of Landlord's Fire
Safety System.
3. Landlord, after receipt of Tenant's notice of demolition, and at
Tenant's expense, shall secure and protect Building equipment connected to the
Fire Safety System in the Premises to be demolished.
4. Landlord, at Tenant's expense shall make such additions and
alterations to the existing Fire Safety System as may be necessary by reason of
alterations made within the Premises either by or on behalf of Tenant or by
Landlord, as part of the initial installation, and work, if any, that Landlord
is required to perform pursuant to the provisions of this Lease or any work
letter or leasehold improvements agreement entered into by Landlord and Tenant.
5. Landlord's contract fire alarm service personnel shall be the
personnel permitted to adjust, test, alter, relocate, add to, or remove
equipment connected to the Fire Safety System. Tenant reserves the right to
propose, subject to Landlord's approval, use of other qualified contractors if
cost is excessive in Tenant's opinion.
6. Landlord, at Tenant's expense, shall repair or cause to have repaired
any and all defects, deficiencies or malfunctions of the Fire Safety System
caused by Tenant's alterations or demolition of the Premises. Such expense may
include expenses of engineering, supervision and standby fire watch personnel
that Landlord deems necessary to protect the Building during the time
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such defects, deficiencies and malfunctions are being corrected. Landlord will
notify Tenant prior to any action required by above.
7. During such times that Tenant's alterations or demolition of the
Premises require that fire protection afforded by the Fire Safety system be
disabled, Tenant, at Tenant's expense, shall maintain fire watch service deemed
reasonably suitable to Landlord.
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ADDITIONAL STANDARDS AND REQUIREMENTS
Drywall:
1. All drywall partitions are to be constructed in accordance with
Building Standard.
2. Drywall may not be fastened to any ductwork.
3. All walls butting mullions shall have a proper channel to receive
the drywall.
Electrical:
1. Home runs shall be indicated on plans. Metallic armored cable shall
be used throughout for power and lighting wiring.
2. Light fixtures shall be Building Standard or as previously approved
by Landlord. All lighting fixtures shall be independently supported.
3. All wiring shall be properly supported and in accordance with local
code. All wiring shall be concealed.
4. All electrical boxes shall meet code requirements.
5. All unused conduit and wiring shall be removed.
6. All wiring shall meet the requirements of the local governing code
and of Underwriter's Laboratory.
7. Special power shall be taken from main distribution board and not
from floor distribution panels.
8. Plans with requirements shall be submitted to Landlord to determine
riser capacity.
9. Tenant shall pay for all electrical design and layout cost for
related work.
10. Building Mechanic or Engineer shall supervise all riser shutdowns.
Telephone:
1. All telephone wire shall be concealed in conduit or thin wall
tubing or approved (NEC) raceway.
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2. Telephone wiring in ceilings shall be Teflon in plenum areas and kept
in bundles to specific drops.
3. Telephone wire will be permitted to be run loose in periphery
enclosures only.
4. No telephone wire shall be run exposed on baseboards or walls.
Doors:
All wood doors shall be as per Building Standard shall be properly fire
rated and bear a fire rating label. All hollow metal doors shall be properly
fire rated if they are located in rated partitions.
Hardware:
1. All hardware shall be as per Building Standard.
2. All locks shall be keyed and mastered to Building setup. Two
individual keys must be supplied to the Building Manager.
Equipment:
1. Equipment where approved may be suspended with fish plates through
slab or from steel beams depending on load.
2. All floor loading and steel work shall be subject to the prior
approval of the Building structural engineer. All approvals shall be obtained
by the Tenant at Tenant's expense. Tenant shall also be responsible for the
costs of all inspections by any professional engineers in connection with this
work.
Public Areas:
All public areas shall meet Department of Buildings requirements or
requirements of other agencies having jurisdiction.
Air Conditioning:
1. Tenant shall be responsible for alterations to existing air
conditioning ductwork or systems and for insuring that such work is properly
integrated into the existing Building systems with no adverse effects on the
Buildings systems. Landlord shall not be responsible for the proper HVAC design
within the area of any Tenant Alterations.
2. The system shall be balanced at Tenant's expense at the completion of
the job.
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3. Tenant shall furnish design balancing report to Landlord.
4. All air conditioning components shall match existing or shall receive
prior approval from Landlord.
5. Landlord will not permit any outside louvers.
6. All shutoff valves shall be accessible at all times.
7. All unused ductwork shall be removed.
8. All unused equipment shall be removed and returned to Landlord.
9. All HVAC, kitchen, toilet and equipment exhaust fans systems and any
other systems shall be discharged to the atmosphere, and not in ceilings or
existing Building return air systems.
Plumbing:
1. No water risers shall be shutdown during Building office hours.
2. All plumbing work shall conform to local code.
3. All fixtures shall match existing fixtures.
4. No exposed plumbing is permitted.
5. All unused fixtures and piping shall be removed. All unused piping
shall be capped at its respective riser.
6. All unused fixtures shall be returned to Landlord.
7. A Building mechanic shall supervise all riser shutdowns.
8. All run-outs from risers shall be copper pipe.
9. All hot water lines shall be properly insulated, and where necessary,
Landlord may require that cold water or waste water lines be insulated.
Blinds and Curtains:
1. Where applicable, new blinds shall match existing blinds.
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2. Drapery rods may not be supported by any part of the acoustical
ceiling system. Rods shall be supported by headers attached to the structure
above the ceiling.
3. If draperies are to be installed by Tenant, such draperies shall
be flameproof.
Ceilings:
1. All ceilings shall meet all requirements of the applicable Building
Code.
2. All acoustic tile ceiling shall meet shall match existing tile
ceiling, and conform to Building Standards.
3. All ceilings are to be supported independently and not from
ductwork.
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BUILDING STANDARDS FOR MATERIALS AND CONSTRUCTION
PARTITIONS
CORRIDORS
3-5/8" metal studs with one layer 5/8" firecode X drywall on each side
extending from the floor through suspended ceiling to the structural slab
above, filled with thermofiber insulation.
DEMISING WALLS
3-5/8" metal studs with one layer 5/8" drywall on each side extending
from the floor through suspended ceiling to the structural slab above,
filled with sound attenuating insulation.
INTERIOR DIVIDING WALLS WITHIN TENANT SPACE
3-5/8" metal studs with one layer 5/8" drywall on each side extending
from the floor to the suspended ceiling.
PARTITIONS -- GENERAL
Drywall partitions may not be fastened to ductwork.
Partitions butting mullions shall be installed with a proper channel to
receive the drywall.
Fastening to the window mullions is not permitted.
DOORS
TENANT ENTRANCE DOOR(S)
3'-0" x 8'-0" - 1/2" Tempered glass door. Virginia Glass Products Corp.
Type P, square profile, clear anodized aluminum rails. Concealed
overhead closer, wire pulls, cylinder lockset, 2" x 6" clear anodized
aluminum frame and 6" square cut aluminum threshold.
TENANT SECONDARY ENTRANCE DOOR(S)
3'-0" x 8'-0" x 1-3/4" Particle core wood door, "C" label -- Weyerhaeuser
Marshfield Series plain sliced red oak veneer faces. Four brushed chrome
finish hinges, PDQ Industries ST Series/Spirit Grade 1 extra heavy-duty
Cylindrical lock set with lever handles brushed chrome finish and keyed
to Building Master Key system, and overhead door closer device. Frame
shall be 2" x 6" x 16 ga. steel, painted to match.
INTERIOR DOORS
3'-0" x 8'-0" x 1-3/4" Particle core wood door, -- Weyerhaeuser
Marshfield Series plain sliced red oak veneer faces. Four brushed chrome
finish hinges, PDQ Industries ST Series/Spirit Grade 1 extra heavy-duty
Cylindrical latch set with ball knobs brushed chrome finish. Frame shall
be 2" x 6" x 16 ga. steel, painted to match.
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CEILING
SUSPENSION SYSTEM
Chicago Metallic Corporation 200 Snap-Grid system. 2'-0" x 2'-0" grid
module. Finish: White.
CEILING PANELS
USG Interiors Acoustone "F" Fissured tile. 2'-0" x 2'-0" x 3/4 Shadowline,
white finish.
LIGHTING
LUMINAIRES
2'-0" x 4'-0" recessed fluorescent parabolic troffers with 3" deep 18 cell
aluminum louvers (Columbia Lighting Catalog No. P4 243 G43363-1-277) with
warm white lamps.
EXIT LIGHTING FIXTURE
Lightalarms Model UXE-8
ELECTRICAL INSTALLATION
WIRING FOR POWER AND LIGHT
Wiring shall be installed concealed in partitions, and above suspended
ceilings. Conduit and wiring shall be properly supported, and may not be
attached to ceiling construction. Rigid conduit or thin wall tubing shall
be used throughout common areas and electrical closets; flexible armored
cable may be used in tenant spaces for power and lighting circuits.
WIRING FOR VOICE AND SIGNAL
Telephone wire, and signal cable, in partitions shall be concealed in
conduit or thin wall tubing or approved (NEC) raceway. Telephone wire and
signal cable run in suspended ceiling plenums shall be Teflon jacketed and
kept in bundles to specific drops. Telephone wire will not be permitted to
be run loose except in movable wall raceways, nor run exposed on baseboards
or walls.
AIR DISTRIBUTION
AIR DIFFUSERS
24" x 24" panel type diffusers, white finish. Carnes SKTA.
RETURN AIR REGISTERS
T-Bar lay-in, 24" x 24" panels, 1/2" x 1/2", white finish. Carnes RAPA
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DUCTWORK
Ductwork to be constructed of galvanized steel sheets meeting SMACCNA
standards for fabrication and installation.
Final connections to diffusers may be flexible metal duct equal to
Wiremold 54, and limited to a maximum length of 8'-0".
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INSURANCE REQUIREMENTS
Tenant:
Premises:
The undersigned contractor or subcontractor (hereinafter called
"Contractor") has been hired by the tenant or occupant (hereinafter called
"Tenant") of the Building named above or by Tenant's contractor to perform
certain work (hereinafter called "Work") for Tenant in the Tenant's premises in
the Building, Contractor and Tenant have requested the undersigned landlord
(hereinafter called "Landlord") to grant Contractor access to the Building and
its facilities in connection with the performance of the Work and Landlord
agrees to grant such access to Contractor upon and subject to the following
terms and conditions:
1. Contractor agrees to indemnify and save harmless the Landlord, its
officers, employees and agents and their affiliates, subsidiaries, and
partners, and each of them, from and with respect to any claims, demands,
suits, liabilities, losses and expenses, including reasonable attorneys' fees
arising out of or in connection with the Work. (and/or imposed by law upon any
or all of them) because of personal injuries, including death at any time
resulting therefrom, and loss of or damage to property, including consequential
damages, whether such injuries to persons or property are claimed to be due to
negligence of the Contractor, Tenant, Landlord or any other party entitled to
be indemnified as aforesaid except to the extent specifically prohibited by law
(and any such prohibition shall not void this Agreement but shall be applied
only to the minimum extent required by law).
2. Contractor shall provide and maintain at its own expense, until
completion of the Work, the following insurance:
(a) Workers' Compensation and Employers' Liability Insurance
covering each and every workman employed in, about or upon the Work, as
provided for in each and every statute applicable to Workers's Compensation and
Employers' Liability Insurance.
(b) Comprehensive General Liability Insurance Including Coverage
for Protective and Contractual Liability (to specifically include coverage for
the indemnification clause of this Agreement) for not less than the following
limits:
Bodily Injury and
Property Damage: $5,000,000 per occurrence
(c) Comprehensive Automobile Liability Insurance (covering all
owned, non-owned and/or hired motor vehicles to be used in connection with the
Work) for not less than the following limits:
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Bodily Injury and
Property Damage: $5,000,000 per occurrence
Contractor shall furnish a certificate from its insurance carrier or carriers
to the Landlord before commencing the Work, showing that it has complied with
the above requirements regarding insurance and providing that the insurer will
give Landlord (20) twenty days' prior written notice of the cancellation of any
of the foregoing policies.
3. Contractor shall require all of its subcontractors engaged in
the Work to provide the following insurance:
(a) Comprehensive General Liability Insurance Including
Protective and Contractual Liability Coverages with limits of liability at
least equal to the above stated limits.
(b) Comprehensive Automobile Liability Insurance (covering all
owned, non-owned and/or hired motor vehicles to be used in connection with the
Work) for not less than the following limits:
Bodily Injury and
Property Damage: $5,000,000 per occurrence
Upon the request of Landlord, Contractor shall require all of its
subcontractors engaged in the Work to execute an Insurance Requirements
agreement in the same form as this Agreement.
Agreed to and executed this day of , 20 .
Contractor Landlord
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EXHIBIT F
Floor Plan of Expansion Space
[FLOOR PLAN]
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EXHIBIT G
Appraisal Provisions
If Tenant shall serve upon Landlord, within the time and in the manner
required under the Lease, a Renewal Appraisal Notice, then the Renewal Term
Fixed Rent shall be determined by appraisal in accordance with the following:
1. Tenant, by designation in the Renewal Appraisal Notice, shall appoint
an appraiser ("TENANT'S APPRAISER"). Landlord or Tenant shall furnish to
Tenant's Appraiser a copy of the Initial Renewal Rent Notice. Within thirty (30)
days after the date of Landlord's receipt of the Renewal Appraisal Notice,
Tenant shall deliver to Landlord the written good-faith determination of
Tenant's Appraiser of the Renewal Fair Market Fixed Rent ("TENANT'S RENEWAL RENT
DETERMINATION"), based upon the parameters set forth in Section 15.2.3(b) of the
Lease. If Tenant fails to deliver to Landlord Tenant's Appraiser's Notice before
the expiration of such thirty (30) day period, then Tenant and Landlord shall be
conclusively deemed to have agreed to Landlord's Renewal Rent Determination, and
the Renewal Term Fixed Rent shall equal the Renewal Term Fixed Rent set forth in
Landlord's Renewal Rent Determination.
2. Provided Landlord has received Tenant's Renewal Rent Determination
within the time set forth in Paragraph 1 above, Landlord and Tenant's
Appraiser, within fifteen (15) days after Landlord's receipt of the Tenant's
Renewal Rent Determination, shall jointly appoint a mutually agreeable second
appraiser who shall be impartial (herein called the "FINAL APPRAISER") and
notify Tenant thereof. If Landlord and Tenant's Appraiser fail to agree upon
and appoint the Final Appraiser within such 15-day period, then either Landlord
or Tenant may request that the American Arbitration Association ("AAA") appoint
the Final Appraiser within ten (10) days after such request, and both parties
shall be bound by any appointment so made within such 10-day period. If the
Final Appraiser shall not have been appointed within such 10-day period, then
either Landlord or Tenant may apply to any court having jurisdiction to make
such appointment. The Final Appraiser shall subscribe and swear to an oath to
fairly and impartially perform his duties hereunder.
3. Within fifteen (15) days after the appointment of the Final
Appraiser, Landlord shall submit a copy of the Initial Renewal Rent Notice to
the Final Appraiser, and Tenant shall submit a copy of Tenant's Renewal Rent
Determination to the Final Appraiser. If either Landlord or Tenant shall fail
to submit such materials in accordance with the provisions of this Paragraph 3
of this Exhibit G, then the Final Appraiser shall notify any party which failed
to submit its required materials of its failure (which notice shall refer
specifically to this Paragraph 3 of this Exhibit G), and if, in such event, the
failing party does not, within a period of ten (10) days after its receipt of
such notice, submit its required materials, then (i) if Tenant failed to so
submit its required materials, the Renewal Term Fixed Rent shall be the amount
thereof set forth in Landlord's Renewal Rent Determination, or (ii) if Landlord
failed to so submit its required materials, the Renewal Term Fixed Rent shall
be determined using the Renewal Fair Market Fixed Rent set forth in Tenant's
Renewal Rent
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Determination, and any such determination shall be conclusive and binding upon
both Landlord and Tenant.
4. If both Landlord and Tenant submit their respective required
materials in accordance with the provisions of Paragraph 3 of this Exhibit G,
then the Final Appraiser, within twenty (20) days after its receipt of both
sets of required materials, shall select which of Landlord's Renewal Rent
Determination or Tenant's Renewal Rent Determination, in his opinion, more
accurately reflects the Renewal Fair Market Fixed Rent, and shall notify
Landlord and Tenant of such selection in writing. The Renewal Fair Market Fixed
Rent set forth in the selected Fair Market Determination shall be used to
determine the Renewal Term Fixed Rent, and such determination shall be
conclusive and binding upon both Landlord and Tenant.
5. The fees and expenses of any such appraisal process shall be
borne by the parties equally, except that Landlord shall bear the expense, if
any, of the Initial Renewal Rent Notice and Tenant shall bear the expense of
Tenant's Appraiser, and each party shall bear the expense of its attorneys and
experts.
6. Tenant's Appraiser and the Final Appraiser each shall be a
disinterested person of at least five (5) years experience as a real estate
appraiser in the State of New Jersey who shall be a member of the "MAI" society
of appraisers and shall have had experience as a broker or appraiser of
first-class commercial office real estate in the "East Hanover, New Jersey"
office market.
7. It is expressly understood, and each appraiser shall acknowledge
and agree, that any determination of the Renewal Fair Market Fixed Rent shall
be based solely on the definition thereof as set forth in Section 15.2.3(b) of
the Lease, including the assumptions and criteria set forth in such
definitions. The appraisers shall not have the power to add to, modify or
change any such definitions or any other provisions of the Lease, and the
jurisdiction of the appraisers is accordingly limited.
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